[Federal Register: June 26, 2003 (Volume 68, Number 123)]
[Rules and Regulations]
[Page 37936-37952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn03-2]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR 1412, 1421, 1439, 1480
RIN 0560-AG95
2003 Agricultural Assistance Act--Crop Disaster Program and
Livestock Assistance Program
AGENCIES: Commodity Credit Corporation, Farm Service Agency, USDA.
ACTION: Final Rule.
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SUMMARY: This rule implements portions of the Agricultural Assistance
Act of 2003 to provide crop-loss disaster assistance for producers who
suffered 2001 or 2002 crop losses and to establish a Livestock
Assistance Program. This rule also implements provisions of the
Consolidated Appropriations Resolution, 2003 (2003 Appropriations Act)
that add the commodities crambe and sesame seed to the list of
commodities eligible for CCC direct and counter-cyclical payments and
marketing assistance loans and that provide that popcorn planted
acreage is to be considered corn for determining corn crop acreage
bases and yields. Other provisions of these Acts will be implemented
under separate rules.
EFFECTIVE DATE: June 23, 2003.
FOR FURTHER INFORMATION CONTACT: Crop disaster: Eloise Taylor,
(202)720-9882, or Eloise_Taylor@wdc.usda.gov. Livestock Assistance Program and Direct and Counter Cyclical
Payment Program: Lynn Tjeerdsma, 202-720-6602, e-mail: lynn_
tjeerdsma@wdc.usda.gov. Oilseeds: Raellen Erickson at (202) 720-6689, or via electronic
mail at Raellen_Erickson@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Notice and Comment
Section 217(b) of the Agricultural Assistance Act of 2003 requires
that the regulations to implement it shall be promulgated without
regard to the notice and comment provisions of 5 U.S.C. 553, or the
Statement of Policy of the Secretary of Agriculture relating to notices
of proposed rulemaking and public participation in rulemaking (36 FR
13804, July 24, 1971). The crop disaster program and livestock
assistance program are covered by section 765(c) of the 2003 Act. The
2003 Act did not provide a similar requirement for the addition of
crambe and sesame seed to the oilseeds eligible for CCC direct and
counter-cyclical payments and market assistance loans. However, the
2003 Act amended the Farm Security and Rural Investment Act of 2002
(the 2002 Act) to require those crops' inclusion and section 1601 of
the 2002 Act provides the exemption. Thus, this rule is published as
final.
Executive Order 12866
This final rule has been determined to be economically significant
under Executive Order 12866 and has been reviewed by the Office of
Management and Budget (OMB). A cost-benefit assessment of this rule was
completed and is summarized after the Background section.
Federal Assistance Programs
This final rule applies to the following Federal assistance
programs, as found in the Catalog of Federal Domestic Assistance:
10.051--Commodity Loans and Loan Deficiency Payments.
10.066--Livestock Assistance Program.
10.073--Crop Disaster Program.
Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
the agencies are not required by 5 U.S.C. 553 or any other law to
publish a notice of proposed rulemaking with respect to the subject of
this rule.
Environmental Assessment
The environmental impacts of this rule have been considered in
accordance with the provisions of the national Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council
on Environmental Quality (40 CFR parts 1500-1508), and FSA's
regulations for compliance with NEPA, 7 CFR part 799. To the extent
these authorities may apply, CCC and FSA have concluded that this rule
is categorically excluded from further environmental review as
evidenced by the completion of an environmental evaluation. No
extraordinary circumstances or other unforeseeable factors exist which
would require preparation of an environmental assessment or
environmental impact statement. A copy of the environmental evaluation
is available for inspection and review upon request.
Executive Order 12778
The final rule has been reviewed in accordance with Executive Order
12778. This final rule preempts State laws to the extent such laws are
inconsistent with it. This rule is not retroactive. Before judicial
action may be brought concerning this rule, all administrative remedies
must be exhausted.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
See the notice related to 7 CFR part 3015, subpart V, published at 48
FR 29115 (June 24, 1983).
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does
not apply to this rule because CCC is not required by 5 U.S.C. 553 or
any other law to publish a notice of proposed rulemaking for the
subject of this rule. Further, this rule contains no unfunded mandates
as defined in sections 202 and 205 of UMRA.
[[Page 37937]]
Small Business Regulatory Enforcement Fairness Act of 1996
Section 765(c) of the 2003 Act and section 1601 of the 2002 Act
require CCC, in promulgating the regulations and administering the
programs of the Act, to use the authority in section 808 of the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121 (SBREFA), to forgo the usual 60-day delay in the effective date of
major final rules required by SBREFA (5 U.S.C. 801(a)(3)(A)(ii)) for
Congressional review. This rule affects a number of agricultural
producers who are in urgent need of the payments to be provided under
it. Thus, in accordance with 5 U.S.C. 808(2), CCC has determined that
delay is contrary to public interest and this rule is effective upon
the date of filing for public inspection by the Office of the Federal
Register.
Paperwork Reduction Act
Section 765(c) of the Agricultural Assistance Act of 2003 and
section 1601 of the 2002 Act require that these regulations be
promulgated and the programs administered without regard to 44 U.S.C.
35, the Paperwork Reduction Act. This means that the information to be
collected from the public to implement these programs and the burden,
in time and money, the collection of the information would have on the
public do not have to be approved by the Office of Management and
Budget or be subject to the 60-day public comment period required by 5
CFR 1320.8(d)(1).
Government Paperwork Elimination Act
FSA is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general and FSA in particular to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible. The forms and other
information collection activities required by participation in the
programs covered under this rule are not yet fully implemented for the
public to conduct business with FSA electronically. Although
applications for all programs may be submitted at the FSA county
offices by mail or FAX, electronic submission is not available. Still,
implementation of electronic submission and receipt is underway.
Background
Addition of Crambe and Sesame as Eligible Oilseeds
Section 763, Division A of the 2003 Act amended sections 1001 and
1202 of the 2002 Act to add crambe and sesame seed to the list of
oilseeds eligible for direct and counter-cyclical payments and
marketing assistance loans. The 2002 Act did not specifically include
crambe and sesame seed but it did provide the Secretary the authority
to include additional oilseeds in these programs. Crambe and sesame
seed were not included initially but will be included now as required
by the 2003 Act.
Popcorn Acreage as Eligible Corn Acreage
This rule allows producers with a farm with acreage planted to, or
prevented from being planted to, popcorn in any year from 1998 through
2001 to have popcorn acreage considered as regular corn acreage for the
purposes of establishing corn base acres on the farm. Section 767 of
the 2003 Act requires this change. It also provides that a farm program
payment yield established before adding popcorn acreage shall be the
same yield as established for corn. If the yields are not established
for corn before adding popcorn acreage, the corn yield to be attributed
to popcorn acreage shall be the Direct and Counter Cyclical Program
(DCP) corn yield for similar farms. This change is effective fewer than
60 days before the deadline for producers to establish base acres for
all covered commodities on a farm. Therefore, this rule extends this
deadline for popcorn farms to July 28, 2003. Applicable direct and
counter-cyclical payments for corn base acres added to a farm under
this rule will be paid after October 1, 2003.
2002 Livestock Assistance Program (2002 LAP)
Section 203(b) of the Agricultural Assistance Act of 2003 requires
the Secretary of Agriculture to use $250 million to pay livestock
producers for losses in a disaster county in either of calendar years
2001 or 2002, but not both. The program will use the same basic
criteria established for the 1999 Livestock Assistance Program (1999
LAP) except that, in lieu of the maximum gross revenue eligibility
limitation used for the 1999 LAP, the Secretary shall use the adjusted
gross income limitation contained in section 1001D of the Food Security
Act of 1985 (7 U.S.C. 1308-3a).
Livestock producers who suffered livestock feed losses as a result
of natural disaster may apply for compensation for losses incurred in
calendar year 2001 or 2002. If the livestock operation is in a county
declared to be a disaster county for both calendar year 2001 and
calendar year 2002, the producers must elect the year for which they
wish to receive LAP payments. An operation may receive 2002 LAP for
losses in either one of the affected calendar years, but not both. If
the livestock operation is in a county that was declared to be a
disaster county in just one of those calendar years, the producers may
elect to receive payments for losses in either calendar year, but not
both. Benefits will be provided to eligible livestock producers only in
those counties declared under a Secretarial or Presidential disaster
declaration and that meet LAP eligibility requirements and are
subsequently approved for participation in LAP. A county must have
suffered a 40-percent or greater grazing loss for 3 consecutive months
during the selected calendar year as a result of damage due to a
natural disaster in order to be eligible. Livestock producers in
counties contiguous to an approved county are not eligible. A livestock
producer in an approved county must have suffered at least a 40-percent
loss of normal grazing for the producer's eligible livestock for a
minimum of 3 consecutive months. Losses will be compensable only up to
80 percent of the total grazing available and the compensable loss may
not exceed the county maximum set by the local FSA county committee.
Payments will be made according to a formula and will be subject to
funding and other limitations, including a $40,000 per person payment
limitation. In the event that the total amount of claims submitted
under this subpart exceeds the $250 million available for 2002 LAP,
each payment shall be reduced by a uniform national percentage. The
amount of assistance that producers would otherwise receive under 2002
LAP shall be reduced by the assistance producers receive under the 2002
Cattle Feed Program announced on September 3, 2002, the 2002 Livestock
Compensation Program announced on October 10, 2002, and the Livestock
Compensation Program II announced on May 5, 2003.
Disaster Assistance to Crop Producers
The 2003 Act authorizes the Secretary to provide assistance to crop
producers for losses due to damaging weather and related conditions in
2001 or 2002 crops. Generally, the statute requires the Crop Disaster
Program (CDP) program to be administered using similar requirements as
used for 2000-crop
[[Page 37938]]
losses under the Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies Appropriation Act, 2001 (2001 Act)
(Public Law 106-387). Special approved yields based on actual
production are prohibited unless production reports were submitted
before enactment of the 2003 Act. The statute provides that total
assistance under the CDP, crop insurance program and Noninsured Crop
Disaster Assistance Program (NAP), plus the value of the crop that was
not lost, may not exceed 95 percent of the value of the crop had there
been no loss.
The loss thresholds used with respect to the 2000 program are
applicable to insured, uninsured and non-insurable 2001 or 2002 crops.
For uninsured crops for which 2001 or 2002 CDP assistance is requested,
applicants must purchase crop insurance coverage at a level greater
than the level available under catastrophic risk protection, if
available, for 2003 and 2004 crop years. Also, for 2001 or 2002 CDP
benefits for a non-insurable crop for which NAP coverage was not
obtained, the producer must submit required documents and pay the
administrative fee for 2003 and 2004 for such crops. However, if the
sales closing date for purchasing NAP or crop insurance has passed, a
producer must meet the linkage requirements for the two subsequent
years. Producers who do not purchase crop insurance or NAP as required
will be required to refund assistance received, plus interest.
Applicants must apply for benefits during the sign-up period announced
by the Deputy Administrator.
False certifications by producers carry strict penalties and FSA
will validate applications with random spot-checks. Like earlier
programs, gross revenue and per-person payment limits apply. A
``person'' may receive no more than $80,000 in Crop Disaster payments,
nor receive benefits if their gross revenue exceeds $2.5 million in the
tax year preceding the year for which benefits are requested. The 1997
Census of Agriculture indicates that less than 2.4 percent of the farms
in the U.S. have sales greater than $500,000, and farms with gross
incomes of $2.5 million or more only represent a small fraction of one
percent. Thus, the gross revenue limitation only limits eligibility of
the nation's largest farm and ranch operations.
Corrections to Direct and Counter-cyclical Program regulations
This rule makes corrections to 7 CFR part 1412 where the need has
become evident since this program was begun in October 2002. First,
section 1412.401 is revised to provide that payments may be issued to a
successor to a contract only after payments issued to the predecessor
are refunded to CCC, or a debt for any amount not refunded to CCC has
been established. Before, in such cases, payments could be issued to
the successor only after payments were refunded. Second, in section
1412.407(e), the names of two county names that were misspelled are
corrected. Third, section 1412.408 is added to provide for
redistribution of base acreage under certain circumstances. And
finally, section 1412.703 is revised to delete an incorrect cross
reference.
Cost-Benefit Analysis Summary
Crop disaster: General payments for insured and non-insurable crops
will be made at 50 percent of market price, and uninsured crops will be
made at 45 percent of market price. Payments for insured crops will be
made at the slightly higher rate to provide an incentive to purchase
crop insurance. Payments for non-insurable crops will be made at the
higher rate because insurance is not available for these crops. Claims
for losses under the 1999- and 2000-crop disaster programs were about
$1.7 billion and 1.9 billion, respectively, before pro-rationing. Based
on similar weather conditions, crop losses under the 2001 or 2002
program are expected to be about $2 billion. The $80,000 payment
limitation and the limitation of $2.5 million gross income will
distribute payments more toward relatively smaller farms. Nonetheless,
large farms would account for a disproportionate share of crop-loss
payments if there was no income limitation.
2002 Livestock Assistance Program (LAP 2002): It is estimated that
over 31 million head of cattle, 3 million horses, and 2 million sheep
are located within the affected states. The potential cost of the LAP
2002 before application of a national factor is estimated to be about
$750 million. Because projected claims exceed the $250 million expected
to be available for the program, each producer's payment will be
prorated based on the ratio of the maximum allowed benefits to total
claims. Payments will assist producers affected by disasters in meeting
their financial obligations for income lost due to poor grazing
conditions. It is assumed, in part as a result of the LAP, that
producers affected by the disaster will remain in business. The impact
of the payments on livestock prices and feed prices is expected to be
small. For those producers who actually suffered the losses, the impact
on their equity and cash flow positions is significant. In the absence
of this program, some producers would have been forced to liquidate
their herds, increasing livestock supplies and lowering prices in the
short term. Changes are likely to be small and temporary. The projected
impact on consumers is negligible. Aggregate farm income in 2002 is
expected to be about $250 million higher.
Loan Rate Changes: The 2003 Act mandates that the same loan rate be
set for each kind of other oilseed. This single loan rate must be
$0.0960 per pound for the 2003 crop of each type of oilseed and $0.0930
per pound for the 2004 through 2007 crops of each type of oilseeds.
Under the 2003 Act, loan rates increase for oil-type sunseed, rapeseed,
canola, and flaxseed, but decrease for other-type sunseed mustard seed,
and safflower comparted with the differentiated loan rates. CCC outlays
for 2002 Act other oilseeds is expected to increase $20 million on
average for the 2003 through 2007 crops as a result of the mandated
single loan rate. Outlays for oil-type sunseed, other-type sunseed,
canola, flaxseed, and rapeseed are expected to increase $22 million on
average. The outlay increases will be partially offset by lower outlays
for safflower and mustard seed compared with loan rates under the 2002
Farm Act, reducing CCC outlays by $1.9 million.
Adding Crambe and Sesame Seed to the List of Other Oilseeds: Annual
crambe direct payments for the 2003 through 2007 crops are projected at
$216,000, for a total $1.1 million over the 5-year period. Annual
sesame seed direct payments are projected at $35,000, for a total of
$175,000 for the remaining 5 years of the 2002 Act. No counter-cyclical
payments are projected for crambe or sesame. Crambe is expected to
generate loan program outlays of $166,000 during the 2003 and 2004 crop
years. Sesame is not projected to generate any loan program outlays.
Treatment of Popcorn: It is estimated that direct and counter
cyclical payments will increase $69 million for crop years 2002-2007
because corn payment acres will increase an estimated 239,000 acres.
Outlays for the changes made by this rule are projected to be as
follows.
Summary of Outlays
------------------------------------------------------------------------
Outlays
Program ($
Million)
------------------------------------------------------------------------
2002 Livestock Assistance Program (2002 LAP)................ 250
Crop Disaster Program....................................... 2,000
[[Page 37939]]
Crambe and sesame seed eligibility.......................... 1.4
Loan Rate Changes........................................... 210
Treatment of Popcorn........................................ 69
-----------
Total................................................... 2,530
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List of Subjects
7 CFR Part 1412
Direct and counter-cyclical payments, Grains, Peanuts, Oilseeds,
Reporting and recordkeeping requirements.
7 CFR part 1421
Agricultural commodities, Feed grains, Grains, Loan programs--
agriculture, Oilseeds, Price support programs.
7 CFR part 1439
Animal feeds, Disaster assistance, Livestock, Pasture, Reporting
and recordkeeping requirements.
7 CFR Part 1480
Agricultural commodities, Disaster assistance, Emergency
assistance, Reporting and recordkeeping requirements.
0
For the reasons set out in the preamble, Title 7, Chapter XIV, of the
Code of Federal Regulations is amended as set forth below.
PART 1412--DIRECT AND COUNTER-CYCLICAL PROGRAM AND PEANUT QUOTA
BUYOUT PROGRAM
0
1. The authority citation for part 1412 continues to read as follows:
Authority: 7 U.S.C. 7911-7918, 7951-7956; 15 U.S.C. 714b and
714c.
0
2. Revise Sec. 1412.101 to read as follows:
Sec. 1412.101 Applicability.
This part governs:
(a) How crop acreage bases and farm program payment yields are
established or updated by owners of a farm for the purpose of
calculating direct and counter-cyclical payments for wheat, corn, grain
sorghum, barley, oats, upland cotton, rice, peanuts, soybeans,
sunflower seed, rapeseed, canola, safflower, flaxseed, mustard seed,
crambe, sesame seed, and other oilseeds, as determined and announced by
the Commodity Credit Corporation (CCC), for the years 2002 through
2007;
(b) The month in which producers on a farm may enter into annual
Direct and Counter-cyclical Program (DCP) contracts with CCC for each
of the years 2002 through 2007;
(c) The month in which peanut producers may establish such bases
and yields in order to receive 2002 direct and counter-cyclical
payments; and
(d) The month in which peanut producers may assign such bases and
yields to a farm for each of the years 2003 through 2007.
0
3. Amend Sec. 1412.103 by revising the definitions of ``Covered
commodity'' and ``Other oilseeds'' to read as follows:
Sec. 1412.103 Definitions.
* * * * *
Covered commodity means wheat, corn, grain sorghum, barley, oats,
upland cotton, rice, soybeans, sunflower seed, rapeseed, canola,
safflower, flaxseed, mustard seed, crambe, sesame seed, and other
oilseeds as determined by the Secretary.
* * * * *
Other oilseeds means a crop of sunflower seed, rapeseed, canola,
safflower, flaxseed, mustard seed, crambe, sesame seed, or, if
determined and announced by CCC, another oilseed.
* * * * *
0
4. Amend Sec. 1412.201 by adding paragraph (f) to read as follows:
Sec. 1412.201 Election of base acres.
* * * * *
(f) For the purposes of this section, acreage planted, or prevented
from being planted, to popcorn shall be considered as acreage planted
to corn.
0
5. Amend Sec. 1412.301 by adding paragraph (b) to read as follows:
Sec. 1412.301 Direct payment yields for covered commodities, except
soybeans and other oilseeds.
* * * * *
(b) For the purposes of this section popcorn shall be considered as
corn.
0
6. Amend Sec. 1412.401 by revising paragraph (d) to read as follows:
Sec. 1412.401 Direct and counter-cyclical program contract.
* * * * *
(d) A transfer or change in the interest of a producer in base
acres on the farm subject to a contract shall result in the termination
of the contract with respect to such interest, and a refund of
applicable direct and counter-cyclical payments issued for the farm.
The contract termination shall be effective on the date of the transfer
or change. Successors-in-interest on a farm subject to a contract may
assume all obligations under the contract no later than September 30 of
the contract year, and receive payment under the contract only after
applicable direct and counter-cyclical payments previously issued to
the predecessor for the farm have been refunded to CCC, or a debt for
any amount not refunded to CCC has been established for the
predecessor.
* * * * *
0
7. Amend Sec. 1412.406 by revising paragraph (e)(1) to read as
follows:
Sec. 1412.406 Succession-in-interest to a direct and counter-cyclical
program contract.
* * * * *
(e)(1) In any case in which either a direct or counter-cyclical
payment has previously been made to a predecessor, such payment shall
not be paid to the successor unless payment has been refunded by the
predecessor, or a debt for any amount not refunded to CCC has been
established for the predecessor.
* * * * *
0
8. In Sec. 1412.407(e), revise the counties listed under Mississippi
to read as follows:
Sec. 1412.407 Planting flexibility.
* * * * *
Mississippi
Calhoun, Carroll, Coahoma, Covington, DeSoto, George, Humphreys,
Jefferson Davis, Lowndes, Madison, Marshall, Monroe, Montgomery,
Prentiss and Rankin.
* * * * *
0
9. Add Sec. 1412.408 to read as follows:
Sec. 1412.408 Redistributing base acreage.
(a)(1) Subject to the limitation in paragraph (a)(3) of this
section, the redistribution of a farm's base acreage shall be allowed
when all owners of the farm execute and submit a written request on a
CCC-approved form for such redistribution to the FSA county office
where the records for the farm are administratively maintained.
(2) If the land of the farm is subject to a deed of trust, lien, or
mortgage, the holder of the deed of trust, lien, or mortgage must agree
to the redistribution of base acreage.
(3) Redistribution of a farm's base acreage to negate or reduce a
program violation is prohibited.
0
10. Amend Sec. 1412.703 by revising paragraph (f) to read as follows:
Sec. 1412.703 Assignment of average peanut yields and average peanut
acreages to farms.
* * * * *
(f) The total number of acres assigned by historic peanut producers
under paragraph (b) of this section to a farm shall be considered to be
the farm's base acres for peanuts for the purpose of making direct
payments and counter-cyclical payments under this part, beginning with
crop year 2003.
[[Page 37940]]
PART 1421--GRAINS AND SIMILARLY HANDLED COMMODITIES--MARKETING
ASSISTANCE LOANS AND LOAN DEFICIENCY PAYMENTS FOR THE 2002 THROUGH
2007 CROP YEARS
0
11. The authority citation for part 1421 continues to read as follows:
Authority: 7 U.S.C. 7231-7237 and 7931 et seq.; 15 U.S.C. 714b,
714c.
0
12. Amend Sec. 1421.3 by revising the definition of ``Oilseeds'' to
read as follows:
Sec. 1421.3 Definitions.
* * * * *
Oilseeds means any crop of sunflower seed, canola, rapeseed,
safflower, flaxseed, mustard seed, crambe, sesame seed, and other
oilseeds as determined and announced by CCC.
* * * * *
PART 1439--EMERGENCY LIVESTOCK ASSISTANCE
0
13. The authority citation for part 1439 is revised to read as follows:
Authority: 7 U.S.C. 1427a; 15 U.S.C. 714 et seq.; Sec. 1103 Pub.
L. 105-277, 112 Stat. 2681-42-44; Pub. L. 106-31, 113 Stat. 57; Pub.
L. 106-78, 113 Stat. 1135; Pub. L. 106-113, 113 Stat. 1501; Sec. 257
Pub. L. 106-224, 114 Stat. 358; Secs. 802, 806, & 813; Pub. L. 106-
387, 114 Stat. 1549; Pub. L. 108-7, 117 Stat. 11.
Subpart B--Livestock Assistance Program
0
14. Subpart B is revised to read as follows:
Subpart B--Livestock Assistance Program
Sec.
1439.100 Administration.
1439.101 Applicability.
1439.102 Definitions.
1439.103 Application process.
1439.104 County committee determinations of general applicability.
1439.105 Loss criteria.
1439.106 Livestock producer eligibility.
1439.107 Calculation of assistance.
1439.108 Availability of funds.
1439.109 Financial considerations.
1439.110 Appeals.
1439.111 Refunds to CCC; joint and several liability.
1439.112 Miscellaneous.
Subpart B--Livestock Assistance Program
Sec. 1439.100 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Executive Vice President,
Commodity Credit Corporation (CCC), and the Deputy Administrator, for
Farm Programs, Farm Service Agency (FSA). In the field, the regulations
in this part will be administered by the FSA State and county
committees.
(b) State executive directors, county executive directors, and
State and county committees do not have the authority to modify or
waive any of the provisions in this part unless specifically authorized
by the Deputy Administrator.
(c) The State committee may take any action authorized or required
by this part to be taken by the county committee that has not been
taken by such committee, such as:
(1) Correct or require a county committee to correct any action
taken by such county committee that is not in accordance with this
part; or
(2) Require a county committee to withhold taking any action that
is not in accordance with this part.
(d) No delegation herein to a State or county committee shall
preclude the Executive Vice President, CCC, or a designee, or the
Deputy Administrator from determining any question arising under this
part or from reversing or modifying any determination made by a State
or county committee.
(e) Data furnished by the applicants will be used to determine
eligibility for program benefits. Although participation in the 2002
Livestock Assistance Program (2002 LAP) is voluntary, program benefits
will not be provided unless the participant furnishes all requested
data.
Sec. 1439.101 Applicability.
(a) This subpart sets forth the terms and conditions applicable to
the 2002 LAP authorized by Public Law 108-7. Program regulations for
prior livestock assistance programs can be found at 7 CFR part 1439 as
it was published in 7 CFR chapet XIV revised as of January 1, 2001.
Benefits will be provided to eligible livestock producers in the United
States under this subpart in declared disaster counties that were
subsequently approved for relief under this part by the Deputy
Administrator.
(b) During the 2001 or 2002 calendar years, for 2002 LAP, a
producer must be in a disaster county that was also approved and
determined by the Deputy Administrator as having suffered losses during
calendar year 2001 or 2002. Contiguous counties that were not
designated as a disaster county in their own right will not be eligible
for participation in 2002 LAP under this subpart. Grazing losses must
have occurred on native and improved pasture with permanent vegetative
cover and other crops planted specifically for the sole purpose of
providing grazing for livestock, but such losses do not include losses
on, or with respect to, seeded small grain forage crops.
(c) To be eligible for assistance under this subpart, a livestock
producer's pastures must have suffered at least a 40-percent loss of
normal carrying capacity for a minimum of 3 consecutive months during
the relevant calendar year. The percent of loss eligible for
compensation shall not exceed the maximum percentage of grazing loss
for the county as determined by the county committee. In addition, the
producer will not be compensated for that part of any loss that would
represent payment of a loss greater than 80 percent.
Sec. 1439.102 Definitions.
The definitions set forth in this section shall be applicable for
all purposes of administering this subpart. The definitions in Sec.
1439.3 shall also be applicable, except where those definitions
conflict with the definitions set forth in this subpart, in which case
the definitions in this section will apply.
Application means the Livestock Assistance Program Application. The
Application is available at county FSA offices.
Disaster county means a county included in the geographic area
covered by a qualifying natural disaster declaration for calendar year
2001 or calendar year 2002 for which the request for such declaration
was submitted during the period beginning on January 1, 2001, and
ending February 20, 2003, and subsequently approved. The term disaster
county means the county where the disaster occurred and does not
include a contiguous county.
Qualifying natural disaster declaration means:
(1) A natural disaster declared by the Secretary under section
321(a) of the Consolidated Farm and Rural Development Act (7 U.S.C.
1961(a)); or
(2) A major disaster or emergency designated by the President under
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.).
Livestock means beef and dairy cattle, buffalo and beefalo (when
maintained on the same basis as beef cattle), sheep, goats, swine, and
equine animals where such equine animals are used commercially for
human food or kept for the production of food or fiber on the owner's
farm.
[[Page 37941]]
Sec. 1439.103 Application process.
(a) Livestock producers must submit a completed application prior
to the close of business on the date established and announced by the
Deputy Administrator. The application and any other supporting
documentation shall be submitted to the county FSA office with
administrative authority over a producer's eligible grazing land or to
the county FSA office that maintains the farm records for the livestock
producer.
(b) Livestock producers shall certify as to the accuracy of all the
information contained in the application, and provide any other
information that CCC determines to be necessary to determine the
livestock producer's eligibility.
Sec. 1439.104 County committee determinations of general
applicability.
(a) County committees shall determine whether due to natural
disasters their county has suffered a 40-percent loss affecting pasture
and normal grazing crops for at least 3 consecutive months during
calendar year 2001 for 2001 eligibility and during calendar year 2002
for 2002 eligibility. In making this determination, county committees,
using the best information available from sources including but not
limited to: the Extension Service, the Natural Resources Conservation
Service; the Drought Monitor; the Palmer Drought Index; and general
knowledge of local rainfall data, pasture losses, grazing livestock
movement out of county, abnormal supplemental feeding practices for
livestock on pasture and liquidation of grazing livestock, shall
determine the percentage of grazing losses for pastures on a county-
wide basis. The county committee shall submit rainfall data, percentage
of grazing losses for each general type of pasture, and the weighted
average percentage of grazing loss for the county, with State committee
concurrence, to the Deputy Administrator. The maximum grazing losses
the county committees shall submit is 80 percent. These determinations
shall be subject to review and approval of the Deputy Administrator.
For purposes of this subpart, such counties are called ``eligible
counties.''
(b) In each eligible county, the county committee shall determine
an LAP crop year. The LAP crop year shall be that period of time in a
calendar year that begins with the date grazing of new growth pasture
normally begins and ends on the date grazing without supplemental
feeding normally ends in the county.
(c) In and for each eligible county, the county committee shall
determine normal carrying capacities for each type of grazing or
pasture during the LAP crop year. The normal carrying capacity for the
LAP crop year shall be the normal carrying capacity the county
committee determines could be expected from pasture and normal grazing
crops for livestock for the LAP crop year if a natural disaster had not
diminished the production of these grazing crops.
(d) In each eligible county, the county committee shall determine
the payment period for the county. The payment period for the county
shall be the period of time during the county's LAP crop year where for
3 consecutive months during 2001 or 2002, the carrying capacity for
grazing land or pasture was reduced by 40 percent or more from the
normal carrying capacity.
Sec. 1439.105 Loss criteria.
(a) Grazing land for which a livestock producer requests benefits
must be within the physical boundary of a disaster county. Livestock
producers in unapproved counties contiguous to an eligible county will
not receive benefits under this subpart.
(b) To be eligible for benefits under this subpart, a livestock
producer in an eligible county must have suffered a loss of grazing
production equivalent to at least a 40-percent loss of normal carrying
capacity for a minimum of 3 consecutive months.
(c) A producer shall specify each type of pasture and percentage of
loss suffered by each type on the application. In establishing the
percentage of grazing loss, producers shall consider the amount of
available grazing production during the LAP crop year, whether more
than the normal acreage of grazing land was required to support
livestock during the LAP crop year, and whether supplemental feeding of
livestock began earlier or later than normal.
(d) The county committee shall determine the producer's grazing
loss and shall consider the amount of available grazing production
during the LAP crop year, whether more than the normal acreage of
grazing land was required to support livestock during the LAP crop
year, and whether supplemental feeding of livestock began earlier or
later than normal. The county committee shall request the producer to
provide proof of loss of grazing production if the county committee
determines the producer's certified loss exceeds other similarly
situated livestock producers.
(e) The percentage of loss claimed by a livestock producer shall
not exceed the maximum allowable percentage of grazing loss for the
county as determined by the county committee in accordance with Sec.
1439.104(a). Livestock producers will not receive benefits under this
subpart for any portion of their loss that exceeds 80 percent of normal
carrying capacity.
(f) Conservation Reserve Program acres released for haying or
grazing and seeded small grain forage crops shall not be used to
calculate losses under this subpart.
Sec. 1439.106 Livestock producer eligibility.
(a) Only one livestock producer will be eligible for benefits under
this subpart with respect to an individual animal.
(b) Only owners, cash lessees, or share lessees of livestock who
themselves provide the pasture or grazing land, including cash leased
pasture or grazing land, for the livestock may be considered as
livestock producers eligible to apply for benefits under this subpart.
(c) An owner, or cash or share lessee of livestock who uses another
person to provide pasture or grazing land on a rate-of-gain basis is
not considered to be the livestock producer eligible to apply for
benefits under this subpart.
(d) An owner who pledges livestock as security for a loan shall be
considered as the person eligible to apply for benefits under this
subpart if all other requirements of this part are met. Livestock
leased or being purchased under a contractual agreement that has been
in effect at least 3 months and establishes an interest for the lessee
in such livestock shall be considered as being owned by the lessee.
(e) Livestock must have been owned or leased for at least 3 months
before becoming eligible for payment.
(f) The following entities are not eligible for benefits under this
subpart:
(1) State or local governments or subdivisions thereof; or
(2) Any individual or entity who is a foreign person as determined
in accordance with the provisions of Sec. Sec. 1400.501 and 1400.502
of this chapter.
Sec. 1439.107 Calculation of assistance.
(a) The value of LAP assistance determined with respect to a
livestock producer for each type and weight class of livestock owned or
leased by such producer shall be the lesser of the amount calculated
under paragraph (b) of this section (the total value of lost feed needs
for eligible livestock) or calculated under paragraph (c) of this
section (the total value of lost eligible pasture).
[[Page 37942]]
(b) The total value of lost feed needs shall be the amount obtained
by multiplying:
(1) The number of days in the payment period the livestock are
owned or, in the case of purchased livestock, meet the 3-month
ownership requirement; by
(2) The number of pounds of corn-equivalent per day, as established
by CCC, that is determined necessary to provide the energy requirements
established for the weight class and type of livestock; by
(3) The 5-year national average market price for corn, as
determined ($1.92 bushel or $0.0342857 per pound); by
(4) The number of eligible animals of each type and weight range of
livestock owned or leased by the person; by
(5) The percent of the producer's grazing loss during the relevant
period as certified by the producer and approved by the county
committee in accordance with Sec. 1439.105.
(c) The total value of lost eligible pasture shall be the amounts
for each type of pasture calculated by:
(1) Dividing the number of acres of each pasture type by the
carrying capacity established for the pasture, and multiplying the
result by:
(2) The 5-year national average market price for corn, as
determined ($1.92 bushel or $0.0342857 per pound); by
(3) the daily feed grain equivalent per animal (15.7 pounds of corn
necessary for a beef cow, factored for the weight class and type of
livestock, as determined by CCC), by
(4) The applicable number of days in the LAP payment period; by
(5) The percent of the producer's grazing loss during the relevant
period as certified by the producer and approved by the county
committee in accordance with Sec. 1439.105.
(d) The final payment shall be the smaller of paragraph (b) or (c)
of this section and from the final payment amount shall be subtracted
the sum of the amounts received by the producer under the Livestock
Compensation Program, as published in the Federal Register on October
10, 2002 (67 FR 63070), and the 2002 Cattle Feed Program, as published
on September 3, 2002 (67 FR 56260). The final payment shall not exceed
50 percent of the smaller of paragraph (b) or (c) of this section
determined prior to subtracting the amounts received by the producer
under the Livestock Compensation Program, as published in the Federal
Register on October 10, 2002 (67 FR 63070), the 2002 Cattle Feed
Program, as published on September 3, 2002 (67 FR 56260), and the
Livestock Compensation Program II, as published on May 5, 2003 (68 FR
23688).
(e) The final payment calculated in paragraph (d) of this section
shall be multiplied by the national factor if required under Sec.
1439.108.
(f) Seeded small grain forage crops shall not be counted as grazing
land under paragraph (c) of this section with respect to supporting
eligible livestock.
(g) The number of equine animals that are used to calculate
benefits under this subpart and in paragraph (a) of this section are
limited to the number actually needed to produce food and fiber on the
producer's farm or to breed horses and mules to be used to produce food
and fiber on the owner's farm, and shall not include animals that are
used for recreational purposes or are running wild or uncontrolled on
land owned or leased by the owner.
Sec. 1439.108 Availability of funds.
In the event that the total amount of claims submitted under this
subpart exceed $250 million, each payment shall be reduced by a uniform
national percentage. Such payment reductions shall be made after the
imposition of applicable payment limitation provisions.
Sec. 1439.109 Financial considerations.
The provisions of Sec. Sec. 1439.10 and 1439.11 apply to 2002 LAP.
Sec. 1439.110 Appeals.
Determinations made under this subpart are subject to
reconsideration or appeal in accordance with parts 780 and 11 of this
title.
Sec. 1439.111 Refunds to CCC; joint and several liability.
(a) In the event there is a failure to comply with any term,
requirement, or condition for payment or assistance arising under this
part, and if any refund of a payment to CCC shall otherwise become due
in connection with this part, all payments made in regard to such
matter shall be refunded to CCC, together with interest as determined
in accordance with paragraph (b) of this section and late-payment
charges as provided for in part 1403 of this chapter.
(b) All persons with a financial interest in the operation or in an
application for payment shall be jointly and severally liable for any
refund, including related charges, that is determined to be due CCC for
any reason under this part.
(c) Interest shall be applicable to refunds required of the
livestock owner or other party receiving assistance or a payment if CCC
determines that payments or other assistance were provided to the owner
and the owner was not eligible for such assistance. Such interest shall
be charged at the rate of interest that the United States Treasury
charges CCC for funds, as of the date CCC made such benefits. Such
interest that is determined to be due CCC shall accrue from the date
such benefits were made available by CCC to the date of repayment or
the date interest increases in accordance with part 1403 of this
chapter. CCC may waive the accrual of interest if CCC determines that
the cause of the erroneous determination was not due to any action of
the livestock owner or other individual or entity receiving benefits.
(d) Interest otherwise determined due in accordance with paragraph
(c) of this section may be waived with respect to refunds required of
the owner or other program recipient because of unintentional misaction
on the part of the owner or other individual or entity, as determined
by CCC.
(e) Late payment interest shall be assessed on all refunds in
accordance with the provisions of, and subject to the rates prescribed
in part 1403 of this chapter.
(f) Individuals or entities who are a party to any program operated
under this part must refund to CCC any excess payments made by CCC with
respect to such program.
(g) In the event that any request for assistance or payment under
this part was established as a result of erroneous information or a
miscalculation, the assistance or payment shall be recomputed and any
excess refunded with applicable interest.
Sec. 1439.112 Miscellaneous.
(a) Any remedies permitted CCC under this part shall be in addition
to any other remedy, including, but not limited to criminal remedies,
or actions for damages in favor of CCC, or the United States, as may be
permitted by law.
(b) Absent a scheme or device to defeat the purpose of the program,
CCC may waive the demand that could otherwise be made for refunds.
(c) Payments under this subpart are subject to provisions contained
in subpart A of this part including, but not limited to, provisions
concerning misrepresentations, payment limitations, and refunds to CCC,
liens, assignment of payments, and appeals, and maintenance of books
and records. In addition, other parts of this chapter and of chapter
VII of this Title relating to payments in event of death, the handling
of claims, and other matters
[[Page 37943]]
may apply, as may other provisions of law and regulation.
(d) Any payments not earned that have been paid must be returned
with interest subject to such other remedies as may be allowed by law.
(e) No interest will be paid or accrue on benefits under this
subpart that are delayed or otherwise not timely issued unless
otherwise mandated by law.
(f) Nothing in this subpart shall require a commitment of funds to
this subpart in excess of that determined to be appropriate by the
Deputy Administrator and/or CCC.
(g) In no instance may the amount expended under this subpart
exceed $250 million.
(h) Payments under this subpart shall be made without regard to
questions of title under State law and without regard to any claim or
lien against the livestock, or proceeds thereof, in favor of the owner
or any other creditor except agencies of the U.S. Government.
(i) Any producer entitled to any payment may assign any payments in
accordance with regulations governing assignment of payment found at
part 1404 of this chapter.
(j) In those instances in which, prior to the issuance of this
regulation, a producer has signed a power of attorney for a person or
entity indicating that such power shall extend to ``all above
programs'', without limitation, such power will be considered to extend
to this program unless by July 10, 2003 the person granting the power
notifies the local FSA office for the control county that the grantee
of the power is not authorized to handle transactions for this program
for the grantor.
(k) Livestock producers or any other individual or entity seeking
or receiving assistance under this part shall maintain and retain
records that will permit verification of livestock and grazing for at
least 3 years following the end of the calendar year in which payment
was made, or for such additional period as CCC may request. An
examination of such records by a duly authorized representative of the
United States Government shall be permitted at any time during business
hours.
(l) A person shall be ineligible to receive assistance under 2002
LAP and be subject to such other remedies as may be allowed by law, if,
with respect to the 2002 LAP, it is determined by the State committee
or the county committee or an official of FSA that such person has:
(1) Adopted any scheme or other device that tends to defeat the
purpose of a program operated under this part;
(2) Made any fraudulent representation with respect to such
program; or
(3) Misrepresented any fact affecting a program determination.
0
15. Part 1480 is revised to read as follows:
PART 1480--2001 AND 2002-CROP DISASTER PROGRAM
Sec.
1480.1 Applicability.
1480.2 Administration.
1480.3 Definitions.
1480.4 Producer eligibility.
1480.5 Time for filing application.
1480.6 Limitations on payments and other benefits.
1480.7 Requirement to purchase crop insurance and non-insurable
coverage.
1480.8 Miscellaneous provisions.
1480.9 Matters of general applicability.
1480.10 Eligible disaster conditions.
1480.11 Qualifying 2001 or 2002-crop losses.
1480.12 Rates and yields; calculating payments.
1480.13 Production losses, producer responsibility.
1480.14 Determination of production.
1480.15 Calculation of acreage for crop losses other than prevented
planted.
1480.16 Calculation of prevented planted acreage.
1480.17 Quantity adjustments for diminished quality for certain
crops.
1480.18 Value loss crops.
1480.19 Other provisions for specialty crops.
1480.20 Misrepresentation and scheme or device.
1480.21 Offsets, assignments, and debt settlement.
1480.22 Compliance with highly erodible land and wetland
conservation provisions.
Authority: Pub. L. 106-387, 114 Stat: 1549, Pub. L. 108-7 117
Stat. 11 (15 U.S.C. 714 et seq.).
Sec. 1480.1 Applicability.
This part sets forth the terms and conditions of the 2001 and 2002-
Crop Disaster Program (CDP). The CDP makes disaster payments to
producers who have incurred losses in quantity or quality to eligible
2001 or 2002 crops due to disasters as determined by the Commodity
Credit Corporation (CCC) under the Agricultural Assistance Act of 2003
(Pub. L. 108-007).
Sec. 1480.2 Administration.
(a) The program will be administered under the general supervision
of the executive Vice President, CCC, and shall be carried out in the
field by Farm Service Agency (FSA) State and county committees.
(b) State and county committees and representatives do not have the
authority to modify or waive any of the provisions of this part.
(c) The State committee shall take any action required by this part
that has not been taken by an county committee. The State committee
shall also:
(1) Correct or require an county committee to correct any action
taken by such FSA county committee that is not in accordance with this
part; and
(2) Require an county committee to withhold taking or reverse any
action that is not in accordance with this part.
(d) No delegation in this part to an State or county committee
shall prevent the Deputy Administrator from determining any question
arising under the program or from reversing or modifying any
determination made by an State or county committee.
(e) The Deputy Administrator may authorize State and county
committees to waive or modify non-statutory deadlines or other program
requirements in cases where lateness or failure to meet such other
requirements does not adversely affect the operation of the program.
Sec. 1480.3 Definitions.
The definitions in this section apply to all determinations made
under this part. The terms defined in part 718 of this title and 1400
and 1437 of this chapter shall also be applicable, except where those
definitions conflict with the definitions set forth in this section.
The definitions follow:
Actual production means the total quantity of the crop appraised,
harvested or that could have been harvested as determined by the FSA
State or county committee in accordance with instructions issued by the
Deputy Administrator.
Additional coverage means a plan of crop insurance coverage
providing a level of coverage greater than the level available under
catastrophic risk protection.
Administrative fee means an amount the producer must pay for NAP
for non-insurable crops.
Appraised production means production determined by FSA, or a
company reinsured by the Federal Crop Insurance Corporation (FCIC),
that was unharvested but which was determined to reflect the crop's
yield potential at the time of appraisal.
Approved yield means the amount of production per acre, computed in
accordance with FCIC's Actual Production History Program (7 CFR part
400, subpart G) or for crops not included under 7 CFR part 400, subpart
G, the yield used to determine the guarantee. For crops covered under
the Noninsured Crop Disaster Assistance program, the approved yield is
established according to part 1437 of
[[Page 37944]]
this chapter. Only the approved yields based on production evidence
submitted to FSA prior to the 2003 Act will be used for purposes of the
2001 or 2002 CDP. Other yields may be assigned when an eligible
approved yield is not available.
Aquaculture means the reproduction and rearing of aquatic species
in controlled or selected environments, including, but not limited to,
ocean ranching (except private ocean ranching of Pacific salmon for
profit in those States where such ranching is prohibited by law).
Aquaculture facility means any land or structure including, but not
limited to, a laboratory, hatchery, rearing pond, raceway, pen,
incubator, or other equipment used in aquaculture.
Aquacultural species means any aquacultural species as defined in
part 1437 of this chapter.
Average market price means the price or dollar equivalent on an
appropriate basis for an eligible crop established by CCC for
determining payment amounts. Such price will be based on the harvest
basis without the inclusion of transportation, storage, processing,
packing, marketing, or other post-harvesting expenses and will be based
on historical data.
Catastrophic risk protection means the minimum level of coverage
offered by FCIC.
CCC means the Commodity Credit Corporation.
Control county means for a producer with farming interests in only
one county, the county FSA office in which the producer's farm(s) is
administratively located; or for a producer with farming interests that
are administratively located in more than one county FSA office, the
county FSA office designated by FSA to control the payments received by
the producer.
County committee means the county FSA committee.
Crop insurance means an insurance policy reinsured by the Federal
Crop Insurance Corporation under the provisions of the Federal Crop
Insurance Act, as amended.
Crop year means: for insured and uninsured crops, the crop year as
defined according to the applicable crop insurance policy; and for non-
insurable crops, the year harvest normally begins for the crop, except
the crop year for all aquacultural species and nursery crops shall mean
the period from October 1 through the following September 30, and the
crop year for purposes of calculating honey losses shall be the period
running from January 1 through the following December 31.
Disaster means damaging weather, including drought, excessive
moisture, hail, freeze, tornado, hurricane, typhoon, excessive wind,
excessive heat, weather-related saltwater intrusion, weather-related
irrigation water rationing, and earthquake and volcanic eruptions, or
any combination thereof. Disaster includes a related condition that
occurs as a result of the damaging weather and exacerbates the
condition of the crop, such as disease and insect infestation.
Eligible crop means a crop insured by FCIC as defined in part 400
of this title, or included under the non-insured crop disaster
assistance program (NAP) as defined under part 1437 of this chapter.
Tobacco, sugar cane, and sugar beets are not eligible under this part.
Losses of livestock and livestock related losses are not compensable
under this part but may, depending on the circumstances, be compensable
under part 1439 of this chapter.
End use means the purpose for which the harvested crop is used,
such as grain, hay or seed.
Expected market price (price election) means 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.
Expected production means, for an agricultural unit, the historic
yield multiplied by the number of planted or prevented acres of the
crop for the unit.
FCIC means the Federal Crop Insurance Corporation, a wholly owned
Government Corporation within USDA.
Final planting date means the date established by RMA for insured
and uninsured crops by which the crop must be initially planted in
order to be insured for the full production guarantee or amount of
insurance per acre. For non-insurable crops, the final planting date is
the end of the planting period for the crop as determined by CCC.
Flood prevention means with respect to aquacultural species,
placing the aquacultural facility in an area not prone to flood; in the
case of raceways, providing devices or structures designed for the
control of water level; and for nursery crops, placing containerized
stock in a raised area above expected flood level and providing
draining facilities, such as drainage ditches or tile, gravel, cinder
or sand base.
FSA means the Farm Service Agency.
Good nursery growing practices means utilizing flood prevention,
growing media, fertilization to obtain expected production results,
irrigation, insect and disease control, weed, rodent and wildlife
control, and over winterization storage facilities.
Growing media means for aquacultural species, media that provides
nutrients necessary for the production of the aquacultural species and
protects the aquacultural species from harmful species or chemicals;
and for nursery crops, media designed to prevent root rot and other
media-related problems through a well-drained media with a minimum 20
percent air pore space and pH adjustment for the type of plant produced
Harvested means:
(1) For insured and uninsured crops, harvested as defined according
to the applicable crop insurance policy;
(2) For non-insurable single harvest crops, that a crop has been
removed from the field, either by hand or mechanically, or by grazing
of livestock;
(3) For non-insurable crops with potential multiple harvests in 1
year or harvested over multiple years, that the producer has, by hand
or mechanically, removed at least one mature crop from the field during
the crop year:
(4) For mechanically harvested non-insurable crops, that the crop
has been removed from the field and placed in a truck or other
conveyance, except hay is considered harvested when in the bale,
whether removed from the field or not. Grazed land will not be
considered harvested for the purpose of determining an unharvested or
prevented planting payment factor.
Historic yield means, for a unit, the higher of the county average
yield or the producer's approved yield. The COC may adjust the yield if
the producer, practice, crop type or area is not capable of producing a
crop at that level during the normal year. The yield may also be
adjusted, or production assigned for ineligible causes of loss. The
historic yield for:
(1) An insured participant shall be the higher of the county
average yield listed on the crop table or the approved federal crop
insurance APH, for the disaster year.
(2) NAP participants shall be the higher of the county average
yield as listed on the crop table or approved NAP APH for the disaster
year.
(3) Participants without federal crop insurance or NAP coverage for
the disaster year shall be assigned the county average listed on the
crop table.
[[Page 37945]]
Insurance is available means when crop information is contained in
RMA's county actuarial documents for a particular crop and a policy can
be obtained through the RMA system, except if the Group Risk Plan or
Adjusted Gross Revenue Plan of crop insurance was the only plan of
insurance available for the crop in the county in the applicable crop
year, insurance is considered not available for that crop.
Insured crops means those crops covered by crop insurance pursuant
to 7 CFR chapter IV and for which the producer purchased either the
catastrophic or buy-up level of crop insurance so available.
Limited coverage means plans of crop insurance offering coverage
that is equal to or greater than 50 percent of the approved yield
indemnified at 100 percent of the expected market price, or a
comparable coverage as established by FCIC, but less than 65 percent of
the approved yield indemnified at 100 percent of the expected market
price, or a comparable coverage as established by FCIC.
Maximum loss level means the maximum level of crop loss to be
applied to a producer without acceptable production records. Loss
levels are expressed in either a percent of loss or yield per acre, and
should reflect the amount of production that a producer should have
made considering the eligible disaster conditions in the area or
county, as determined by the county committee in accordance with
instructions issued by the Deputy Administrator.
Multi-use crop means a crop intended for more than one end use
during the calendar year such as grass harvested for seed, hay, and/or
grazing.
Multiple cropping means the planting of two or more different crops
on the same acreage for harvest within the same crop year.
Multiple planting means the planting for harvest of the same crop
in more than one planting period in a crop year on different acreage.
NASS means the National Agricultural Statistics Service.
Net Crop Insurance Indemnity means the indemnity minus the producer
paid premium.
Non-insurable crops means those crops for which crop insurance was
not available.
Normal mortality means the percentage of dead aquacultural species
that would normally occur during the crop year.
Pass-through funds means revenue that goes through, but does not
remain in, a person's account, such as money collected by an auction
house or consignment business that is subsequently paid to the sellers
or consignors, less a commission withheld by the auction house.
Person means person as defined in part 1400 of this chapter, and
all rules with respect to the determination of a person found in that
part shall be applicable to this part. However, the determinations made
in this part in accordance with 7 CFR part 1400, subpart B, Person
Determinations, shall also take into account any affiliation with any
entity in which an individual or entity has an interest, irrespective
of whether or not such entities are considered to be engaged in
farming.
Planted acreage means land in which seed, plants, or trees have
been placed, appropriate for the crop and planting method, at a correct
depth, into a seed bed that has been properly prepared for the planting
method and production practice normal to the area as determined by the
county committee.
Prevented planting means the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC. The eligible cause of
loss must have:
(1) Occurred after a previous planting period for the crop, and
(2) Occurred before the final planting date for the crop in the
applicable crop year or in the case of multiple plantings, the harvest
date of the first planting in the applicable planting period, and
(3) Generally affected other producers in the area, as determined
by CCC.
Production means quantity of the crop or commodity produced
expressed in a specific unit of measure such as bushels, pounds, etc.
Rate means price per unit of the crop or commodity.
Related condition means with respect to disaster, a condition that
causes deterioration of a crop such as insect infestation, plant
disease, or aflatoxin that is accelerated or exacerbated as a result of
damaging weather as determined in accordance with instructions issued
by the Deputy Administrator.
Reliable production records means evidence provided by the producer
that is used to substantiate the amount of production reported when
verifiable records are not available, including copies of receipts,
ledgers of income, income statements of deposit slips, register tapes,
invoices for custom harvesting, and records to verify production costs,
contemporaneous measurements, truck scale tickets, and contemporaneous
diaries that are determined acceptable by the county committee.
Repeat crop means with respect to a producer's production, a
commodity that is planted or prevented from being planted in more than
one planting period on the same acreage in the same crop year.
RMA means the Risk Management Agency.
Salvage value means the dollar amount or equivalent for the
quantity of the commodity that cannot be marketed or sold in any
recognized market for the crop.
Secondary use means the harvesting of a crop for a use other than
the intended use, except for crops with intended use of grain, but
harvested as silage, ensilage, cobbage, hay, cracked, rolled, or
crimped.
Secondary use value means the value determined by multiplying the
quantity of secondary use times the CCC-established price for this use.
State committee means the FSA State committee.
Uninsured crops means those crops for which Federal crop insurance
was available, but the producer did not purchase insurance.
Unit means, unless otherwise determined by the Deputy
Administrator, basic unit as described in part 457 of this title that,
for ornamental nursery production, shall include all eligible plant
species and sizes.
Unit of measure means:
(1) For all insured and uninsured crops, the FCIC-established unit
of measure;
(2) For all non-insurable crops, if available, the established unit
of measure used for the 2002 Noninsured Crop Assistance Program price
and yield;
(3) For aquacultural species, a standard unit of measure such as
gallons, pounds, inches or pieces, established by the State committee
for all aquacultural species or varieties;
(4) For turfgrass sod, a square yard;
(5) For maple sap, a gallon; and
(6) For all other crops, the smallest unit of measure that lends
itself to the greatest level of accuracy with minimal use of fractions,
as determined by the State committee.
United States means all 50 States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
and to the extent the Deputy Administrator determines it to be feasible
and appropriate Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands and the former Trust Territory of the Pacific Islands,
which include Palau, Federated
[[Page 37946]]
States of Micronesia and the Marshall Islands.
USDA means United States Department of Agriculture.
Value loss crop will have the meaning assigned in part 1437 of this
chapter.
Verifiable production records means evidence that is used to
substantiate the amount of production reported and that can be verified
by CCC through an independent source.
Yield means unit of production, measured in bushels, pounds, etc.,
per area of consideration, usually measured in acres.
Sec. 1480.4 Producer eligibility.
(a) Producers in the United States will be eligible to receive
disaster benefits under this part only if they have suffered losses of
eligible crops in 2001 or 2002 as a result of a disaster or related
condition, or as further specified in this part. Producers may not
receive benefits with respect to volunteer stands of crops.
(b) Payments may be made for losses suffered by an eligible
producer who is now deceased or is a dissolved entity if a
representative who currently has authority to enter into a contract for
the producer signs the application for payment. Proof of authority to
sign for the deceased producer or dissolved entity must be provided. If
a producer is now a dissolved general partnership or joint venture, all
members of the general partnership or joint venture at the time of
dissolution or their duly authorized representatives must sign the
application for payment.
(c) As a condition to receive benefits under this part, a producer
must have been in compliance with the Highly Erodible Land Conservation
and Wetland Conservation provisions of 7 CFR part 12, for the 2001 or
2002 crop year, as applicable, and must not otherwise be barred from
receiving benefits under 7 CFR part 12 or any other law.
Sec. 1480.5 Time for filing application.
Applications for benefits under the 2001 or 2002-Crop Disaster
Program must be filed in the county FSA office serving the county where
the producer's farm is located for administrative purposes before the
close of business on August 25, 2003, or such other later date that may
be announced by the Deputy Administrator.
Sec. 1480.6 Limitations on payments and other benefits.
(a) A producer may receive disaster benefits on either 2001 or 2002
crop losses as specified under this part.
(b) Payments will not be made under this part for grazing losses.
(c) CCC may divide and classify crops based on loss susceptibility,
yield, and other factors.
(d) No person shall receive more than a total of $80,000 in
disaster benefits under this part, unless otherwise specified.
(e) No person shall receive disaster benefits under this part in an
amount that exceeds 95 percent of the value of the expected production
for the relevant period as determined by CCC. The sum of the value of
the crop not lost if any; the disaster payment; and the net crop
insurance indemnity, cannot exceed 95 percent of what the crop's value
would have been if there had been no loss.
(f) A person whose gross revenue is in excess of $2.5 million for
the preceding tax year shall not be eligible to receive disaster
benefits under this part. Gross revenue includes the total income and
total gross receipts of the person, before any reductions. Gross
revenue shall not be adjusted, amended, discounted, netted or modified
for any reason. No deductions for costs, expenses, or pass through
funds will be deducted from any calculation of gross revenue. For
purposes of making this determination, gross revenue means the total
gross receipts received from farming, ranching and forestry operations
if the person receives more than 50 percent of such person's gross
income from farming or ranching; or the total gross receipts received
from all sources if the person receives 50 percent or less of such
person's gross receipts from farming, ranching and forestry.
Sec. 1480.7 Requirement to purchase crop insurance and non-insurable
coverage.
(a) Except as provided further in this section, any producer who
elected not to purchase crop insurance on an insurable 2001 or 2002
crop for which the producer receives crop loss assistance or for non-
insurable crops, elected not to participate in NAP for the year for
which benefits are received must:
(1) Purchase crop insurance with additional coverage on that crop
for the 2003 and 2004 crop years for the insurable crops.
(2) NAP coverage by paying the administrative fee by the applicable
State filing deadline and complete all required program requirements
including yearly acreage reports, for the non-insurable crop for both
2003 and 2004 crop years
(b) If, at the time the producer applies for the 2001 or 2002 CDP
the sales closing date for 2003 insurable crops, or for 2003 non-
insurable crops for which the producer sought benefits under the 2001
or 2002 CDP has passed, the producer must purchase crop insurance
policy or obtain NAP coverage, as applicable, for the next available 2
crops years.
(c) If any producer fails to purchase crop insurance and/or NAP, as
required in paragraph (a) or (b) of this section, the producer shall
reimburse CCC for the full amount of the assistance, plus interest,
provided to the producer under this part.
Sec. 1480.8 Miscellaneous provisions.
(a) A person shall be ineligible to receive disaster assistance
under this part if it is determined by the State or county committee or
an official of FSA that such person has:
(1) Adopted any scheme or other device that tends to defeat the
purpose of a program operated under this part;
(2) Made any fraudulent representation with respect to such
program; or
(3) Misrepresented any fact affecting a program determination.
(b) All persons with a financial interest in the operation
receiving benefits under this part shall be jointly and severally
liable for any refund, including related charges, which is determined
to be due CCC for any reason under this part.
(c) In the event that any request for assistance or payment under
this part was established as result of erroneous information or a
miscalculation, the assistance or payment shall be recalculated and any
excess refunded with applicable interest.
(d) The liability of any person for any penalty under this part or
for any refund to CCC or related charge arising in connection therewith
shall be in addition to any other liability of such person under any
civil or criminal fraud statute or any other provision of law
including, but not limited to: 18 U.S.C. 286, 287, 371, 641, 651, 1001
and 1014; 15 U.S.C. 714m; and 31 U.S.C. 3729.
(e) Any person who is dissatisfied with a determination made with
respect to this part may make a request for reconsideration or appeal
of such determination in accordance with the regulations set forth in
parts 11 and 780 of this title.
(f) Any payment or portion thereof to any person shall be made
without regard to questions of title under State law and without regard
to any claim or lien against the crop, or proceeds thereof.
(g) For the purposes of 28 U.S.C. 3201(e), CCC waives the
restriction on receipt of funds or benefits under this program but only
as to beneficiaries who as a condition of such waiver agree to apply
the 2001 or 2002 CDP benefits
[[Page 37947]]
to reduce the amount of the judgment lien.
Sec. 1480.9 Matters of general applicability.
(a) For calculations of loss made with respect to insured crops,
the producer's existing unit structure will be used as the basis for
the calculation and may include optional units established in
accordance with part 457 of this title. Insured crops may have basic
units established if the existing unit structure is based on enterprise
units or whole county units or written agreements. For uninsured and
non-insurable crops, basic units will be established for these
purposes.
(b) County average yield for loss calculations will be the average
of the 1996 through 2000 official county yields established by CCC,
excluding the years with the highest and lowest yields, respectively.
(c) County committees will assign production when the county
committee determines:
(1) An acceptable appraisal or record of harvested production does
not exist;
(2) The loss is due to an ineligible cause of loss or practices,
soil type, climate, or other environmental factors, that cause lower
yields than those upon which the historic yield is based;
(3) The producer has a contract providing a guaranteed payment for
all or a portion of the crop; or
(4) The crop is planted beyond the normal planting period for the
crop.
(d) The county committee shall establish a maximum loss level that
should reflect the amount of production producers should have produced
considering the eligible disaster conditions in the area or county for
the same crop. The maximum loss level for the county shall be expressed
as either a percent of loss or yield per acre. The maximum loss level
will apply when:
(1) Unharvested acreage has not been appraised by FSA, or a company
reinsured by FCIC; or
(2) Acceptable production records for harvested acres are not
available from any source.
(e) Assigned production or reduced yield for practices that result
in lower yields than those for which the historic yield is based shall
be established based on the acres found to have been subjected to those
practices.
(f) Assigned production for crops planted beyond the normal
planting period for the crop shall be calculated according to the
lateness of planting the crop. With the exception of replanted crops,
if the crop is planted after the final planting date by:
(1) Through 10 calendar days, the assigned production reduction
will be based on one percent of the payment yield for each day
involved;
(2) Eleven (11) through 24 calendar days, the assigned production
reduction will be based on 10 percent of the payment yield plus an
additional two percent reduction of the payment yield for each day of
days 11 through 24 that are involved; and
(3) Twenty-five (25) or more calendar days or a date from which the
crop would not reasonably be expected to mature by harvest, the
assigned production reduction will be based on 50 percent of the
payment yield or such greater amount determined by the county committee
to be appropriate.
(4) CCC may adjust items 1 through 3 to make a comparable
assignment for short rotation crops such as vegetables which may have a
30-day growing period.
(g) Assigned production for producers with contracts to receive a
guaranteed payment for production of an eligible crop will be
established by the county committee by:
(1) Determining the total amount of guaranteed payment for the
unit;
(2) Converting the guaranteed payment to guaranteed production by
dividing the total amount of guaranteed payment by the approved county
price for the crop or variety or such other factor deemed appropriate
if otherwise the production would appear to be too high; and
(3) Establishing the production for the unit as the greater of the
actual net production for the unit or the guaranteed payment, or
combination thereof if greater.
Sec. 1480.10 Eligible disaster conditions.
(a) Except as provided in paragraph (b) of this section, this part
applies to losses where the crop could not be planted or crop
production, both in quantity and quality, was adversely affected by
disasters as defined in 1480.3 or:
(1) Insect infestation as a related condition to damaging weather
if documented by COC with published data;
(2) Disease as a related condition to damaging weather;
(3) Plum pox virus;
(4) Pierce's disease;
(5) Watermelon sudden wilt;
(6) Salt water intrusion of an irrigation supply;
(7) Mexican fruit fly quarantine in San Diego and San Bernardino
counties in California;
(8) Irrigation water rationing if proof is provided that water was
rationed by a Government entity or water district (unless the producer
was compensated by the Government entity or water district);
(9) Grasshoppers;
(10) Lack of water supply due to drought conditions for irrigated
crops;
(11) Mormon crickets; or
(12) Other causes or factors as determined by the Deputy
Administrator.
(b) Disaster benefits will not be available under this part if the
crop could not be planted or crop production, both in quantity and
quality, was adversely affected by:
(1) Poor farming practices;
(2) Poor management decisions; or
(3) Drifting herbicides.
Sec. 1480.11 Qualifying 2001 or 2002-crop losses.
(a) To receive disaster benefits under this part, the county
committee must determine that because of a disaster, the producer with
respect to the 2001 or 2002 crop year:
(1) Was prevented from planting a crop;
(2) Sustained a loss in excess of 35 percent of the expected
production of a crop; or
(3) Sustained a loss in excess of 35 percent of the value for value
loss crops.
(b) Calculation of benefits under this part shall not include
losses:
(1) That are the result of poor management decisions or poor
farming practices as determined by the county committee on a case-by-
case basis;
(2) That are the result of the failure of the producer to re-seed
or replant to the same crop in the county where it is customary to re-
seed or replant after a loss;
(3) That are not as a result of a natural disaster, unless
otherwise specified in Sec. 1480.10;
(4) To crops not intended for harvest in crop year 2002;
(5) To losses of by-products resulting from processing or
harvesting a crop, such as cotton seed, peanut shells, wheat or oat
straw;
(6) To home gardens;
(7) That are a result of water contained or released by any
governmental, public, or private dam or reservoir project if an
easement exists on the acreage affected for the containment or release
of the water; or
(8) If losses could be attributed to conditions occurring outside
of the applicable crop year growing season.
(c) Calculation of benefits under this part for ornamental nursery
stock shall not include losses:
(1) Caused by a failure of power supply or brownouts;
(2) Caused by the inability to market nursery stock as a result of
quarantine,
[[Page 37948]]
boycott, or refusal of a buyer to accept production;
(3) Caused by fire;
(4) Affecting crops where weeds and other forms of undergrowth in
the vicinity of the nursery stock that have not been controlled; or
(5) Caused by the collapse or failure of buildings or structures.
(d) Calculation of benefits under this part for honey where the
honey production by colonies or bees was diminished, shall not include
losses:
(1) Where the inability to extract was due to the unavailability of
equipment; the collapse or failure of equipment or apparatus used in
the honey operation;
(2) Resulting from improper storage of honey;
(3) To honey production because of bee feeding;
(4) Caused by the application of chemicals;
(5) Caused by theft, fire, or vandalism;
(6) Caused by the movement of bees by the producer or any other
person;
(7) Due to disease or pest infestation of the colonies; or
(8) Loss calculations shall take into account other conditions and
adjustments provided for in this part.
Sec. 1480.12 Rates and yields; calculating payments.
(a)(1) Payments made under this part to a producer for a loss on a
unit with respect to yield based crops are determined by multiplying
the payment rate established for the crop by CCC, times the loss of
production which exceeds 35 percent of the expected production, as
determined by CCC, of the unit.
(2) Payments made under this part to a producer for a loss on a
unit with respect to value based crops are determined by multiplying:
the payment rate established for the crop by CCC, times the loss of
value which exceeds 35 percent of the expected production value, as
determined by CCC, of the unit.
(3) Payments made under this part may be adjusted by CCC to reflect
losses due to quality factors adversely affected by a disaster. For FSA
loan commodities, production to count may be reduced using the schedule
of premiums and discounts for FSA commodity loans. Additional quality
loss adjustments may be made for single market crops, using a 20
percent quality loss threshold. The quality loss threshold may be
determined by multiplying: 65 percent of the affected quantity, times
65 percent of the result of subtracting: the value of the crop due to
the effects of the disaster, as determined by CCC, from the value of
the crop if it had not been affected by the disaster, as determined by
CCC. Quality adjustments for multiple market crops sold to a lower
priced market as a result of poor quality will be determined by using
the difference between the average market price for the intended use
and the average market price for the actual use, as determined by CCC.
(b) Payment rates for 2001 or 2002 year crop losses shall be:
(1) 50 percent of the maximum established RMA price for insured
crops;
(2) 50 percent of the State average price for non-insurable crops;
and
(3) 45 percent of the maximum established RMA price for uninsured
crops.
(c) Except as provided elsewhere in this part, disaster benefits
under this part for losses to crops shall be paid in an amount
determined by multiplying the loss of production in excess of 35
percent of the expected production by the applicable payment rate
established according to paragraph (a) of this section.
(d) Up to three separate payment rates and yields for the same crop
may be established by the county committee as authorized by the Deputy
Administrator, when there is supporting data from NASS or other sources
approved by CCC that show there is a significant difference in yield or
value based on a distinct and separate end use of the crop. In spite of
differences in yield or values, separate rates or yields shall not be
established for crops with different cultural practices, such as
organically or hydroponically grown.
(e) Production from all end uses of a multi-use crop or all
secondary uses for multiple market crops will be calculated separately
and summarized together.
(f) Each eligible producer's share of a disaster payment shall be
based on the producer's share of the crop or crop proceeds, or, if no
crop was produced, the share the producer would have received if the
crop had been produced.
(g) When calculating a payment for a unit loss:
(1) An unharvested payment factor shall be applied to crop acreage
planted but not harvested;
(2) A prevented planting factor shall be applied to any prevented
planted acreage eligible for payment; and
(3) Unharvested payment factors may be adjusted if costs normally
associated with growing the crop are not incurred.
Sec. 1480.13 Production losses, producer responsibility.
(a) Where available and determined accurate, RMA loss records will
be used for insured crops.
(b) If RMA loss records are not available, or if the FSA county
committee determines the RMA loss records are inaccurate or incomplete,
or if the FSA county committee makes inquiry, producers are responsible
for:
(1) Retaining or providing, when required, the best verifiable or
reliable production records available for the crop;
(2) Summarizing all the production evidence;
(3) Accounting for the total amount of unit production for the
crop, whether or not records reflect this production;
(4) Providing the information in a manner that can be easily
understood by the county committee; and
(5) Providing supporting documentation if the county committee has
reason to question the disaster event or that all production has been
accounted for.
(c) In determining production under this section the producer must
supply verifiable or reliable production records to substantiate
production to the county committee. If the eligible crop was sold or
otherwise disposed of through commercial channels, production records
include: commercial receipts; settlement sheets; warehouse ledger
sheets; or load summaries; appraisal information from a loss adjuster
acceptable to CCC. If the eligible crop was farm-stored, sold, fed to
livestock, or disposed of in means other than commercial channels,
production records for these purposes include: truck scale tickets;
appraisal information from a loss adjuster acceptable to CCC;
contemporaneous diaries; or other documentary evidence, such as
contemporaneous measurements.
(d) Producers must provide all records for any production of a crop
that is grown with an arrangement, agreement, or contract for
guaranteed payment.
Sec. 1480.14 Determination of production.
(a) Production under this part shall include all harvested
production, unharvested appraised production and assigned production
for the total planted acreage of the crop on the unit.
(b) The harvested production of eligible crop acreage harvested
more than once in a crop year shall include the total harvested
production from all these harvests.
(c) If a crop is appraised and subsequently harvested as the
intended use, the actual harvested production shall be used to
determine benefits.
(d) For all crops eligible for loan deficiency payments or
marketing assistance loans with an intended use of grain but harvested
as silage, ensilage,
[[Page 37949]]
cobbage, hay, cracked, rolled, or crimped, production will be adjusted
based on a whole grain equivalent as established by CCC.
(e) For crops with an established yield and market price for
multiple intended uses, a value will be calculated for each use with:
(1) The intended use or uses for disaster purposes based on
historical production and acreage evidence provided by the producer;
and
(2) The eligible acres for each use and the calculation of the
disaster payment will be determined by the county committee according
to instructions issued by the Deputy Administrator.
(f) For crops sold in a market that is not a recognized market for
the crop with no established county average yield and market price, 45
percent of the salvage value received will be deducted from the
disaster payment.
(g) If a producer does not receive compensation based upon the
quantity of the commodity delivered to a purchaser, but has an
agreement or contract for guaranteed payment for production, for
purposes of determination the production shall be the greater of the
actual production or the guaranteed payment converted to production as
determined by CCC.
(h) Production that is commingled between units before it was a
matter or combination of record and cannot be separated by using
records or other means acceptable to CCC shall be prorated to each
respective unit by CCC. Commingled production may be attributed to the
applicable unit, if the producer made the unit production of a
commodity a matter of record before commingling and does any of the
following, as applicable:
(1) Provides copies of verifiable documents showing that production
of the commodity was purchased, acquired, or otherwise obtained from
beyond the unit;
(2) Had the production measured in a manner acceptable to the
county committee; or
(3) Had the current year's production appraised in a manner
acceptable to the county committee.
(i) The county committee shall assign production for the unit when
the county committee determines that:
(1) The producer has failed to provide adequate and acceptable
production records;
(2) The loss to the crop is because of a disaster condition not
covered by this part, or circumstances other than natural disaster, and
there has not otherwise been an accounting of this ineligible cause of
loss;
(3) The producer carries out a practice, such as multiple cropping,
that generally results in lower yields than the established historic
yields;
(4) The producer has a contract to receive a guaranteed payment for
all or a portion of the crop.
(5) A crop is late-planted;
(6) Unharvested acreage was not timely appraised; or
(7) Other appropriate causes exist for such assignment as
determined by the Deputy Administrator.
(j) For peanuts, the actual production shall be all peanuts
harvested for nuts regardless of their disposition or use as adjusted
for low quality.
Sec. 1480.15 Calculation of acreage for crop losses other than
prevented planted.
(a) Acreage shall be calculated using the number of acres shown to
have been planted to a crop.
(b) In cases where there is a repeat crop or a multiple planted
crop in more than one planting period, or if there is multiple cropped
acreage meeting criteria established in paragraph (c) or (d) of this
section, each of these crops may be considered separate crops for 2001
or 2002 CDP if the county committee determines that all of the
following conditions are met:
(1) Both the initial and subsequent planted crops were planted with
an intent to harvest;
(2) Both the initial and subsequent planted crops were planted
within the normal planting period for that crop;
(3) Both the initial and subsequent planted crops meet all other
eligibility provisions of this part including good farming practices;
and
(4) Each planting could reach maturity if each planting was
harvested or would have been harvested.
(c) In cases where there is multiple cropped acreage, each crop may
be eligible for disaster assistance separately if both of the following
conditions are met:
(1) The specific crops are approved by the State Committee as
eligible multiple-cropping practices in accordance with procedures
approved by the Deputy Administrator; and
(2) The farm containing the multiple cropped acreage has a history
of multiple cropping based on timely filed crop acreage reports.
(d) Producers with multiple cropped acreage not meeting the
criteria in paragraph (c) of this section may be eligible for disaster
assistance on more than one crop if the producer has verifiable records
establishing a history of carrying out a successful multiple cropping
practice on the specific crops for which assistance is requested. All
required records acceptable to CCC as determined by the Deputy
Administrator must be provided before payments are issued.
(e) Producers with multiple cropped acreage not meeting the
criteria in paragraphs (c) or (d) of this section must select the crop
for which assistance will be requested. If more than one producer has
an interest in the multiple cropped acreage, all producers must agree
to the crop designated for payment by the end of the application period
or no payment will be approved for any crop on the multiple cropped
acreage.
(f) Benefits under this part shall apply to irrigated crops where
the acreage was affected by a lack of water or contamination by
saltwater intrusion of an irrigation supply resulting from drought
conditions.
Sec. 1480.16 Calculation of prevented planted acreage.
(a) When determining losses under this part, prevented-planted
acreage will be considered separately from planted acreage of the same
crop.
(b) Except as provided in paragraph (c) of this section, for
insured crops, disaster payments under this part for prevented-planted
acreage shall not be made unless RMA documentation indicates that the
eligible producer received a prevented planting payment under the RMA-
administered program.
(c) For insured crops, disaster payments under this part for
prevented-planted acreage will be made available for the following
crops for which prevented planting coverage was not available and for
which the county committee will make an eligibility determination
according to paragraph (d) of this section: peppers; sweet corn (fresh
market); tomatoes (fresh market); tomatoes (processing).
(d) The producer must prove, to the satisfaction of the county
committee, an intent to plant the crop and that such crop could not be
planted because of an eligible disaster. The county committee must be
able to determine the producer was prevented from planting the crop by
an eligible disaster that:
(1) Prevented other producers from planting on acreage with similar
characteristics in the surrounding area; and
(2) Occurred after the previous planting period for the crop.
(3) Unless otherwise approved by the Deputy Administrator, began no
earlier than the planting season for that crop.
(e) Prevented planted disaster benefits under this part shall not
apply to:
(1) Aquaculture, including ornamental fish; perennial forage crops
grown for hay, seed, or grazing; honey;
[[Page 37950]]
maple sap; millet; mint; nursery crops; cultivated wild rice; fresh
market beans; cabbage, pumpkins, sweet potatoes; winter squash,
turfgrass sod, and vine crops;
(2) Uninsured crop acreage that is unclassified for insurance
purposes;
(3) Acreage that is used for conservation purposes or intended to
be left unplanted under any CCC or USDA program;
(4) Any acreage on which a crop other than a cover crop was
harvested, hayed, or grazed during the crop year;
(5) Any acreage for which a cash lease payment is received for the
use of the acreage the same crop year unless the county committee
determines the lease was for haying and grazing rights only and was not
a lease for use of the land;
(6) Acreage for which planting history or conservation plans
indicate that the acreage would have remained fallow for crop rotation
purposes;
(7) Acreage for which the producer or any other person received a
prevented planted payment for any crop for the same acreage, excluding
share arrangements;
(8) Acreage for which the producer cannot provide proof to the
county committee that inputs such as seed, chemicals, and fertilizer
were available to plant and produce a crop with the expectation of at
least producing a normal yield; and
(9) Any other acreage for which, for whatever reason, there is
cause to question whether the crop could have been planted for a
successful and timely harvest, or for which prevented planting credit
is not allowed under the provisions of this part.
(f) Prevented planting payments are not provided on acreage that
had either a previous or subsequent crop planted on the acreage, unless
the county committee determines that all of the following conditions
are met:
(1) There is an established practice of planting two or more crops
for harvest on the same acreage in the same crop year;
(2) Both crops could have reached maturity if each planting was
harvested or would have been harvested;
(3) Both the initial and subsequent planted crops were planted or
prevented-planting within the normal planting period for that crop;
(4) Both the initial and subsequent planted crops meet all other
eligibility provisions of this part including good farming practices;
and
(5) The specific crops meet the eligibility criteria for a separate
crop designation as a repeat or approved multiple cropping practice set
out in Sec. 1480.15.
(g)(1) Disaster benefits under this part shall not apply to crops
where the prevented-planted acreage was affected by a disaster that was
caused by drought unless on the final planting date or the late
planting period for non-irrigated acreage, the area that is prevented
from being planted has insufficient soil moisture for germination of
seed and progress toward crop maturity because of a prolonged period of
dry weather;
(2) Prolonged precipitation deficiencies must be at the D2 level or
higher as determined by using the U.S. Drought Monitor; and
(3) Verifiable information collected by sources whose business or
purpose to record weather conditions, including but not limited to the
local weather reporting stations of the U.S. National Weather Service.
(h) Prevented planting benefits under this part shall apply to
irrigated crops where the acreage was prevented from being planted due
to a lack of water resulting from drought conditions or contamination
by saltwater intrusion of an irrigation supply resulting from drought
conditions.
(i) For uninsured or non-insurable crops and the insured crops
listed in paragraph (c) of this section, for prevented planting
purposes:
(1) The maximum prevented-planted acreage for all crops cannot
exceed the number of acres of cropland in the unit for the crop year
and will be reduced by the number of acres planted in the unit;
(2) The maximum prevented planted acreage for a crop cannot exceed
the number of acres planted by the producer, or that was prevented from
being planted, to the crop in any 1 of the 4 crop years previous to the
disaster year as determined by the county committee;
(3) For crops grown under a contract specifying the number of acres
contracted, the prevented-planted acreage is limited to the result of
the number of acres specified in the contract minus planted acreage;
(4) For each crop type or variety for which separate prices or
yields are sought for prevented-planted acreage, the producer must
provide evidence that the claimed prevented-planted acres were
successfully planted in at least 1 of the most recent 4 crop years; and
(5) The prevented planted acreage must be at least 20 acres or 20
percent of the intended planted acreage in the unit, whichever is less.
(j) Notwithstanding the provisions of part 718 of this chapter,
late-filed crop acreage reports for previous years shall not be
accepted for CDP purposes.
Sec. 1480.17 Quantity adjustments for diminished quality for certain
crops.
(a) For the crops identified in paragraph (b) of this section,
subject to this part, the quantity of production of crops of the
producer shall be adjusted to reflect diminished quality resulting from
the disaster.
(b) Crops eligible for quality adjustments to production are
limited to:
(1) Barley; canola; corn; cotton; crambe, flaxseed; grain sorghum;
mustard seed; oats; peanuts; rapeseed; rice; safflower; soybeans;
sunflower-oil; sunflower-seed; wheat; and
(2) Crops with multiple market uses such as fresh, processed or
juice, as supported by NASS data or other data as CCC determines
acceptable.
(3) Single market crops if the COC determines there is sufficient
data to establish 5 quality loss levels.
(c) The producer must submit documentation for determining the
grade and other discount factors that were applied to the crop.
(d) Quality adjustments will be applied to crops experiencing at
least a 20 percent loss after production has been adjusted to standard
moisture, when applicable.
(e) For all crops listed in paragraph (b)(1) of this section,
except for cotton, if a quality adjustment has been made for multi-
peril crop insurance purposes, an additional adjustment will not be
made.
(f) Quality adjustments for crops, other than cotton and peanuts
listed in paragraph (b)(1) of this section may be made by applying an
adjustment factor based on dividing the CCC marketing assistance loan
rate applicable to the crop and producer determined according to part
1421 of this chapter by the unadjusted county marketing assistance loan
rate for the crop. For crops that receive a grade of ``sample'' and are
marketed through normal channels, production will be adjusted as
determined by CCC. County committees may, with state committee
concurrence, establish county average quality adjustment factors.
(g) Quality adjustments for cotton shall be based on the difference
between:
(1) The loan rate applicable to the crop and producer determined
according to part 1427 of this chapter; and
(2) The adjusted county loan rate. The adjusted county rate is the
county loan rate adjusted for the 5-year county average historical
quality premium or discount, as determined by CCC.
(h) For 2001 quota and non-quota peanuts and 2002 peanuts, quality
[[Page 37951]]
adjustments shall be based on the difference between the actual sales
price, or other proceeds, received and the National average support
price by type of peanut for the applicable crop year.
(i) Quality adjustments for crops with multiple market uses such as
fresh, processed and juice, shall be applied based on the difference
between the producer's historical marketing percentage of each market
use compared to the actual percentage for the 2001 or 2002 crop year.
These quality adjustments are built into the production loss
determination. Production determinations from Federal crop insurance
will not be used.
(j) Except as determined by the Deputy Administrator, quality
adjustments for aflatoxin shall be based on the aflatoxin level. The
producer must provide the county committee with proof of a price
reduction because of aflatoxin. The aflatoxin level must be 20 parts
per billion or more before a quality adjustment will be made. The
quality adjustment factor applied to affected production is .50 if the
production is marketable. If the production is unmarketable due to
aflatoxin levels of at least 20 parts per billion, production will be
adjusted to zero. Any value received will be considered salvage.
(k) Any quantity of the crop determined to be salvage will not be
considered production. Salvage values shall be factored by 0.45 times
the producer's share. This amount will be deducted from the disaster
payment.
(l) Quantity adjustments for diminished quality under this section
will not be applied to crops that are, under Sec. 1480.18, value loss
crops.
(m) Quantity adjustments for diminished quality shall also not
apply under this section to: hay, honey, maple sap, turfgrass sod,
crops marketed for a use other than an intended use for which there is
not an established county price or yield, or any other crop that the
Deputy Administrator deems it appropriate to exclude.
Sec. 1480.18 Value loss crops.
(a) Irrespective of any inconsistent provisions in other sections,
this section shall apply to the following crops, which are considered
``value loss crops'': ornamental nursery; Christmas trees; vegetable
and root stock including ginseng root; aquaculture, including
ornamental fish, and such other crops as may be determined appropriate
for treatment as ``value loss crops''.
(b) For crops specified in paragraph (a) of this section, disaster
benefits under this part are calculated based on the loss of value at
the time of disaster, as determined by CCC.
(c) For aquaculture, disaster benefits under this part for
aquacultural species are limited to those aquacultural species that
were placed in the aquacultural facility by the producer. CDP benefits
shall not be available for aquacultural species that are growing
naturally in the aquaculture facility. Benefits under this part are
limited to aquacultural species that were planted or seeded on property
owned or leased by the producer where that land has readily
identifiable boundaries, and over which the producer has total control
of the waterbed and the ground under the waterbed. Producers who only
have control of the waterbed or the ground under the waterbed but not
both will not be eligible for disaster benefits under this part.
(d) For ornamental nursery crops, disaster benefits under this part
are limited to ornamental nursery crops that were grown in a container
or controlled environment for commercial sale on property owned or
leased by the producer, and cared for and managed using good nursery
growing practices. Indigenous crops are not eligible for benefits under
this part. Producers who participated in the previous Florida Nursery
Program are eligible for either of the following:
(1) 2001 losses that occurred between January 1, 2001 and September
30, 2001.
(2) 2002 losses that occurred between October 1, 2001 and September
30, 2002.
(e) For vegetable and root stock, disaster benefits under this part
are limited to plants grown in a container or controlled environment
for use as transplants or root stock by the producer for commercial
sale on property owned or leased by the producer and managed using good
rootstock or fruit and vegetable plant growing practices.
(f) For ginseng, only ginseng that meets all the requirements of
cultivated ginseng shall be considered as eligible for benefits under
this part. Ginseng is defined as cultivated ginseng roots and seeds
that meet the following requirements:
(1) Grown in raised beds above and away from wet and low areas
protected from flood;
(2) Grown under man-made canopies that provide 75 to 80 percent
shade coverage;
(3) Grown in well drained media with a pH adjustment of at least
5.5 and which protects plants from disease; and
(4) Grown with sufficient fertility and weed control to obtain
expected production results of ginseng root and seed.
(g) Evidence of the above ginseng practice requirements must be
provided by the producer if requested by the county committee. Any
ginseng that is grown under cultivated practices or simulated wild or
woodland conditions that do not meet these requirements are not
eligible for disaster assistance under this part.
(h) Because ginseng is a perennial crop, the producer must provide
annual crop history to establish when the loss occurred and the extent
of such loss. If the producer does not or is unable to provide annual
records to establish the beginning inventory, before the loss, and
ending inventory, after the loss, production shall be assigned by the
county committee.
(i) Aside from differences provided for in this section, all other
conditions for eligibility contained in this part shall be applied to
value loss crops.
Sec. 1480.19 Other provisions for specialty crops.
(a) For turfgrass sod, disaster benefits under this part are
limited to turfgrass sod that would have matured and been harvested
during 2001 or 2002, when a disaster caused in excess of 35 percent of
the expected production to die.
(b) For honey, disaster benefits under this part are limited to
table and non-table honey produced commercially for human consumption.
For calculating benefits, all honey is considered a single crop,
regardless of type or variety of floral source or intended use.
(c) For maple sap, disaster benefits under this part are limited to
maple sap produced on private property in a controlled environment by a
commercial operator for sale as sap or syrup. The maple sap must be
produced from trees that are: located on land the producer controls by
ownership or lease; managed for production of maple sap; and are at
least 30 years old and 12 inches in diameter.
Sec. 1480.20 Misrepresentation and scheme or device.
(a) A producer who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part shall not be entitled to disaster payments and must refund all
such payments received, plus interest as determined in accordance with
part 1403 of this chapter.
(b) A producer shall refund to CCC all disaster payments, plus
interest as determined in accordance with part 1403 of this chapter,
received by such producer with respect to all contracts if the producer
is determined to have knowingly done any of the following.
[[Page 37952]]
(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.
Sec. 1480.21 Offsets, assignments and debt settlement.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person shall be made without regard
to questions of title under State law and without regard to any claim
or lien against the crop, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings found at part 1403 of
this chapter apply to payments.
(b) Any producer entitled to any payment may assign any payments in
accordance with regulations governing the assignment of payments found
at part 1404 of this chapter.
(c) A debt or claim may be settled according to part 1403 of this
chapter.
Sec. 1480.22 Compliance with highly erodible land and wetland
conservation provisions.
Part 12 of this title applies to this part.
Signed in Washington, DC, on June 20, 2003.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 03-16161 Filed 6-23-03; 4:13 pm]
BILLING CODE 3410-05-P