Farm Service Agency, USDA § 760.1510

§ 759.6 7 CFR Ch. VII (1–1–21 Edition)

disaster, will consequently lessen B Public Assistance or Hazard Mitiga- undue hardship and the demand for tion Grant Assistance, and EM; and any other factors considered (ii) The Presidential Major Disaster relevant. declaration is for losses due to severe, general disaster conditions including § 759.6 EM to be made available. but not limited to conditions such as (a) For purposes of the EM Program flood, hurricane, or earthquake. under part 764, subpart I, of this chap- (b) [Reserved] ter, a county will be considered an eligible disaster area as designated by PART 760—INDEMNITY PAYMENT FSA for coverage of the EM Program PROGRAMS as follows: (1) Secretarial designations. When pro- Subpart A—Dairy Indemnity Payment duction losses meet the requirements Program in § 759.5 and the county has been des- PROGRAM OPERATIONS ignated as a disaster area for that reason, or when the discretionary excep- Sec. 760.1 Administration. tion to production losses for EM under 760.2 Definitions. § 759.5(d) has been exercised, the primary and contiguous counties will be PAYMENTS TO DAIRY FARMERS FOR MILK areas in which otherwise eligible pro- 760.3 Indemnity payments on milk. ducers can receive EM loans. 760.4 Normal marketings of milk. (2) Physical loss notification. When 760.5 Fair market value of milk. only qualifying physical losses occur, 760.6 Information to be furnished. 760.7 Other requirements for affected farm- the SED will submit a request to the ers. FSA Administrator to make a deter- 760.8 Application for payments for milk. mination that a natural disaster has 760.9 Other legal recourse. occurred in a county, resulting in severe physical losses. If the FSA Admin- PAYMENTS TO MANUFACTURERS AFFECTED BY PESTICIDES istrator determines that such a natural disaster has occurred, then EM can be 760.20 Payments to manufacturers of dairy made available to eligible farmers for products. 760.21 Application for payments by manu- physical losses only in the primary facturers. county (the county that was the sub- 760.22 Information to be furnished by manu- ject of that determination) and the facturer. counties contiguous to that county. 760.23 Other requirements for manufactur- (3) USDA quarantine. Any quarantine ers. imposed by the Secretary of Agri- GENERAL PROVISIONS culture under the Plant Protection Act or the animal quarantine laws, as de- 760.24 Limitation of authority. fined in section 2509 of the Food, Agri- 760.25 Estates and trusts; minors. 760.26 Appeals. culture, Conservation, and Trade Act 760.27 Setoffs. of 1990, automatically authorizes EM 760.28 Overdisbursement. for production and physical losses re- 760.29 Death, incompetency, or disappear- sulting from the quarantine in a pri- ance. mary county (the county in which the 760.30 Records and inspection thereof. quarantine was in force) and (where the 760.31 Assignment. quarantine effects extend beyond that 760.32 Instructions and forms. 760.33 Availability of funds. county) the counties contiguous to that primary county. Subpart B—General Provisions for Supple- (4) Presidential declaration. Whenever mental Agricultural Disaster Assistance the President declares a Major Disaster Programs Declaration or an Emergency Declara- tion, FSA will make EM available to 760.101 Applicability. eligible applicants in declared and con- 760.102 Administration of ELAP, LFP, LIP, SURE, and TAP. tiguous counties, provided: 760.103 Eligible producer. (i) The Presidential declaration is 760.104 Risk management purchase require- not solely for Category A or Category ments.

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760.105 Waiver for certain crop years; buy- 760.505 Application. in. 760.506 Payment calculation. 760.106 Equitable relief. 760.507 Obligations of a participant. 760.107 Socially disadvantaged, limited resource, or beginning farmer or rancher. Subpart G—Supplemental Revenue 760.108 Payment limitation. Assistance Payments Program 760.109 Misrepresentation and scheme or device. 760.601 Applicability. 760.110 Appeals. 760.602 Definitions. 760.111 Offsets, assignments, and debt set- 760.610 Participant eligibility. tlement. 760.611 Qualifying losses, eligible causes and 760.112 Records and inspections. types of loss. 760.113 Refunds; joint and several liability. 760.613 De minimis exception. 760.114 Minors. 760.614 Lack of access. 760.115 Deceased individuals or dissolved en- 760.620 Time and method of application and tities. certification of interests. 760.116 Miscellaneous. 760.621 Requirement to report acreage and production. Subpart C—Emergency Assistance for 760.622 Incorrect or false producer produc- Livestock, Honeybees, and Farm- tion evidence. Raised Fish Program 760.631 SURE guarantee calculation. 760.632 Payment acres. 760.201 Applicability. 760.633 2008 SURE guarantee calculation. 760.202 Definitions. 760.634 SURE guarantee for value loss crops. 760.203 Eligible losses, adverse weather, and 760.635 Total farm revenue. other loss conditions. 760.636 Expected revenue. 760.204 Eligible livestock, honeybees, and 760.637 Determination of production. farm-raised fish. 760.638 Determination of SURE yield. 760.205 Eligible producers, owners, and con- 760.640 National average market price. tract growers. 760.641 Adjustments made to NAMP to re- 760.206 Notice of loss and application proc- flect loss of quality. ess. 760.650 Calculating SURE. 760.207 Notice of loss and application period. 760.208 Availability of funds. Subpart H—Crop Assistance Program 760.209 Livestock payment calculations. 760.210 Honeybee payment calculations. 760.701 Applicability. 760.211 Farm-raised fish payment calcula- 760.702 Definitions. tions. 760.703 Producer eligibility requirements. 760.704 Time and method of application. Subpart D—Livestock Forage Disaster 760.705 Payment rates and calculation of Program payments. 760.706 Availability of funds. 760.301 Applicability. 760.707 Proof of loss. 760.302 Definitions. 760.708 Miscellaneous provisions and limita- 760.303 Eligible livestock producer. tions. 760.304 Covered livestock. 760.305 Eligible grazing losses. Subpart I—2005–2007 Crop Disaster 760.306 Application for payment. 760.307 Payment calculation. Program 760.800 Applicability. Subpart E—Livestock Indemnity Program 760.801 Administration. 760.401 Applicability. 760.802 Definitions. 760.402 Definitions. 760.803 Eligibility. 760.403 Eligible owners and contract grow- 760.804 Time and method of application. ers. 760.805 Limitations on payments and other 760.404 Eligible livestock. benefits. 760.405 Application process. 760.806 Crop eligibility requirements. 760.406 Payment calculation. 760.807 Miscellaneous provisions. 760.808 General provisions. Subpart F—Tree Assistance Program 760.809 Eligible damaging conditions. 760.810 Qualifying 2005, 2006, or 2007 quantity 760.500 Applicability. crop losses. 760.501 Administration. 760.811 Rates and yields; calculating pay- 760.502 Definitions. ments. 760.503 Eligible losses. 760.812 Production losses; participant re- 760.504 Eligible orchardists and nursery tree sponsibility. growers. 760.813 Determination of production.

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760.814 Calculation of acreage for crop Subpart M—2005–2007 Catfish Grant losses other than prevented planted. Program 760.815 Calculation of prevented planted acreage. 760.1200 Administration. 760.816 Value loss crops. 760.1201 Application for payment. 760.817 Quality losses for 2005, 2006, and 2007 760.1202 Eligible producers. crops. 760.1203 Payment calculation. 760.818 Marketing contracts. 760.819 Misrepresentation, scheme, or de- Subpart N—Dairy Economic Loss vice. Assistance Payment Program 760.820 Offsets, assignments, and debt set- 760.1301 Administration. tlement. 760.1302 Definitions and acronyms. 760.821 Compliance with highly erodible 760.1303 Requesting benefits. land and wetland conservation. 760.1304 Eligibility. 760.1305 Proof of production. Subpart J—2005–2007 Livestock Indemnity 760.1306 Availability of funds. Program 760.1307 Dairy operation payment quantity. 760.1308 Payment rate. 760.900 Administration. 760.1309 Appeals. 760.901 Applicability. 760.1310 Misrepresentation and scheme or 760.902 Eligible counties and disaster peri- device. ods. 760.1311 Death, incompetence, or disappear- 760.903 Definitions. ance. 760.904 Limitations on payments and other 760.1312 Maintaining records. benefits. 760.1313 Refunds; joint and several liability. 760.905 Eligible owners and contract grow- 760.1314 Miscellaneous provisions. ers. 760.906 Eligible livestock. Subpart O—Agricultural Disaster Indemnity 760.907 Application process. Programs 760.908 Deceased individuals or dissolved en- 760.1500 Applicability. tities. 760.1501 Administration. 760.909 Payment calculation. 760.1502 Definitions. 760.910 Appeals. 760.1503 Eligibility. 760.911 Offsets, assignments, and debt set- 760.1504 Miscellaneous provisions. tlement. 760.1505 General provisions. 760.912 Records and inspections. 760.1506 Availability of funds and timing of 760.913 Refunds; joint and several liability. payments. 760.1507 Payment limitation. Subpart K—General Provisions for 2005– 760.1508 Qualifying disaster events. 2007 Livestock Compensation and 760.1509 Eligible and ineligible losses. Catfish Grant Programs 760.1510 Application for payment. 760.1511 Calculating payments for yield- 760.1000 Applicability. based crop losses. 760.1001 Eligible counties, disaster events, 760.1512 Production losses; participant re- and disaster periods. sponsibility. 760.1002 Definitions. 760.1513 Determination of production. 760.1003 Limitations on payments and other 760.1514 Eligible acres. benefits. 760.1515 Calculating payments for value loss crops. Subpart L—2005–2007 Livestock 760.1516 Calculating payments for tree, Compensation Program bush, and vine losses. 760.1517 Requirement to purchase crop in- 760.1100 Applicability. surance or NAP coverage. 760.1101 Administration. 760.1102 Definitions. Subpart P—On-Farm Storage Loss Program 760.1103 Eligible livestock and producers. 760.1600 Applicability. 760.1104 Application for payment. 760.1601 Administration. 760.1105 Application process. 760.1602 Definitions. 760.1106 Payment calculation. 760.1603 Eligible producers. 760.1107 Appeals. 760.1604 Eligible commodities. 760.1108 Offsets, assignments, and debt set- 760.1605 Miscellaneous provisions. tlement. 760.1606 General provisions. 760.1109 Recordkeeping and inspections. 760.1607 Availability of funds and timing of 760.1110 Refunds; joint and several liability. payments.

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760.1608 Payment limitation and AGI. from the commerical market any time 760.1609 Qualifying disaster events. from: 760.1610 Eligible and ineligible losses. (1) Pursuant to the direction of a 760.1611 Application for payment. public agency because of the detection 760.1612 Calculating payments on-farm storage losses. of pesticide residues in such whole milk by tests made by a public agency Subpart Q—Milk Loss Program or under a testing program deemed adequate for the purpose by a public 760.1700 Applicability agency, or 760.1701 Administration. (2) Pursuant to the direction of a 760.1702 Definitions. public agency because of the detection 760.1703 Payments to dairy farmers for milk. of other residues of chemicals or toxic 760.1704 Normal marketings of milk. substances residues, or contamination 760.1705 Fair market value of milk. from nuclear radiation or fallout in 760.1706 Information to be furnished. such whole milk by tests made by a 760.1707 Application for payments for milk public agency or under a testing pro- loss. gram deemed adequate for the purpose 760.1708 Payment limitation and AGI. by a public agency. 760.1709 Limitation of authority. Affected manufacturer means a person 760.1710 Estates and trusts; minors. who manufactures dairy products 760.1711 Setoffs. 760.1712 Overdisbursement. which are removed from the commer- 760.1713 Death, incompetency, or disappear- cial market pursuant to the direction ance. of a public agency because of the detec- 760.1714 Records and inspection of records. tion of pesticide residue in such dairy 760.1715 Assignment. products by tests made by a public 760.1716 Instructions and forms. agency or under a testing program 760.1717 Availability of funds. deemed adequate for the purpose by a 760.1718 Calculating payments for milk public agency. losses. Application period means any period AUTHORITY: 7 U.S.C. 4501 and 1531; 16 U.S.C. during which an affected farmer’s 3801, note; 19 U.S.C. 2497; Title III, Pub. L. whole milk is removed from the com- 109–234, 120 Stat. 474; Title IX, Pub. L. 110–28, mercial market pursuant to direction 121 Stat. 211; Sec. 748, Pub. L. 111–80, 123 Stat. 2131; Title I, Pub. L. 115–123; and Title I, Pub. of a public agency for a reason speci- L. 116–20. fied in paragraph (k) of this section and for which application for payment is Subpart A—Dairy Indemnity made. Base period means the calendar Payment Program month or 4-week period immediately preceding removal of milk from the AUTHORITY: 7 U.S.C. 450j-l. market. SOURCE: 43 FR 10535, Mar. 14, 1978, unless Chemicals or Toxic Substances means otherwise noted. any chemical substance or mixture as defined in the Toxic Substances Con- PROGRAM OPERATIONS trol Act (15 U.S.C. 2602). Commercial market means (1) the mar- § 760.1 Administration. ket to which the affected farmer nor- This indemnity payment program mally delivers his whole milk and from will be carried out by FSA under the which it was removed because of detec- direction and supervision of the Deputy tion therein of a residue of a violating Administrator. In the field, the pro- substance(s) or (2) the market to which gram will be administered by the State the affected manufacturer normally de- and county committees. livers his dairy products and from which they were removed because of § 760.2 Definitions. detection therein of pesticide residue. For purposes of this subject, the fol- County committee means the FSA lowing terms shall have the meanings county committee. specified: Deputy Administrator means the Dep- Affected farmer means a person who uty Administrator for Farm Programs, produces whole milk which is removed FSA.

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FSA means the Farm Service Agency, ment of Agriculture to whom he has U.S. Department of Agriculture. delegated, or to whom he may here- Milk handler means the marketing after delegate, authority to act in his agency to or through which the af- stead. fected dairy farmer marketed his whole State committee means the FSA State milk at the time he was directed by the committee. public agency to remove his whole Violating Substance means one or milk from the commercial market. more of the items defined in para- Nuclear Radiation or Fallout means graphs (f), (g), and (h) of this section. contamination from nuclear radiation Whole milk means milk as it is pro- or fallout from any source. Pay period means (1) in the case of an duced by cows. affected farmer who markets his whole [43 FR 10535, Mar. 14, 1978, as amended by milk through a milk handler, the pe- Amdt. 1, 44 FR 36360, July 22, 1979; 52 FR riod used by the milk handler in set- 17935, May 13, 1987; 53 FR 44001, Nov. 1, 1988; tling with the affected farmer for his 56 FR 1358, Jan. 14, 1991; 61 FR 18485, Apr. 26, whole milk, usually biweekly or 1996; 71 FR 27190, May 10, 2006; 84 FR 28176, monthly, or (2) in the case of an af- June 18, 2019] fected farmer whose commercial market consists of direct retail sales to PAYMENTS TO DAIRY FARMERS FOR MILK consumers, a calendar month. Payment subject to refund means a § 760.3 Indemnity payments on milk. payment which is made by a milk han- An indemnity payment for milk may dler to an affected farmer, and which be made to an affected farmer who is such farmer is obligated to refund to determined by the county committee the milk handler. to be in compliance with all the terms Person means an individual, partner- and conditions of this subpart in the ship, association, corporation, trust, amount of the fair market value of his estate, or other legal entity. normal marketings for the application Pesticide means an economic poison period, as determined in accordance which was registered pursuant to the with §§ 760.4 and 760.5, less (a) any provisions of the Federal Insecticide, amount he received for whole milk Fungicide, and Rodenticide Act, as marketed during the applications pe- amended (7 U.S.C. 135 through 135k), riod, and (b) any payment not subject and approved for use by the Federal to refund which he received from a Government. milk handler with respect to whole Public agency means any Federal, milk removed from the commercial State or local public regulatory agency. market during the application period. Removed from the commercial market [43 FR 10535, Mar. 14, 1978, as amended at 47 means (1) produced and destroyed or FR 24689, June 8, 1982] fed to livestock, (2) produced and delivered to a handler who destroyed it or § 760.4 Normal marketings of milk. disposed of it as salvage (such as sepa- (a) The county committee shall de- rating whole milk, destroying the fat, termine the affected farmer’s normal and drying the skim milk), or (3) pro- marketings which, for the purposes of duced and otherwise diverted to other this subpart, shall be the sum of the than the commercial market. quantities of whole milk which such Same loss means the event or trigger that caused the milk to be removed farmer would have sold in the commer- from the commercial market. For ex- cial market in each of the pay periods ample, if milk is contaminated, the in the application period but for the re- original cause of the contamination moval of his whole milk from the com- was the trigger and any loss related to mercial market because of the detec- that contamination would be consid- tion of a residue of a violating sub- ered the same loss. stance. Secretary means the Secretary of Ag- (b) Normal marketings for each pay riculture of the United States or any period are based on the average daily officer or employee of the U.S. Depart- production during the base period.

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(c) Normal marketings determined in (c) In determining the net price for paragraph (b) of this section are ad- whole milk, the county committee justed for any change in the daily aver- shall deduct from the gross price there- age number of cows milked during each for any transportation, administrative, pay period the milk is off the market and other costs of marketing which it compared with the average number of determines are normally incurred by cows milked daily during the base pe- the affected farmer but which were not riod. incurred because of the removal of his (d) If only a portion of a pay period whole milk from the commercial mar- falls within the application period, nor- ket. mal marketings for such pay period shall be reduced so that they represent § 760.6 Information to be furnished. only that part of such pay period which The affected farmer shall furnish to is within the application period. the county committee complete and [43 FR 10535, Mar. 14, 1978, as amended by accurate information sufficient to en- Amdt. 1, 44 FR 36360, July 22, 1979] able the county committee or the Dep- uty Administrator to make the deter- § 760.5 Fair market value of milk. minations required in this subpart. Such information shall include, but is (a) The county committee shall determine the fair market value of the not limited to: affected farmer’s normal marketings, (a) A copy of the notice from, or which, for the purposes of this subpart, other evidence of action by, the public shall be the sum of the net proceeds agency which resulted in the removal such farmer would have received for his of the affected farmer’s whole milk normal marketings in each of the pay from the commercial market. periods in the application period. (b) The specific name of the violating (b) The county committee shall de- substance causing the removal of his termine the net proceeds the affected whole milk from the commercial mar- farmer would have received in each of ket, if not included in the notice or the pay periods in the application pe- other evidence of action furnished riod (1) in the case of an affected farm- under paragraph (a) of this section. er who markets his whole milk through (c) The quantity and butterfat test of a milk handler, by multiplying the af- whole milk produced and marketed fected farmer’s normal marketings for during the base period. This informa- each such pay period by the average tion must be a certified statement net price per hundred-weight of whole from the affected farmer’s milk han- milk paid during the pay period by dler or any other evidence the county such farmer’s milk handler in the same committee accepts as an accurate area for whole milk similar in quality record of milk production and but- and butterfat test to that marketed by terfat tests during the base period. the affected farmer in the base period (d) The average number of cows used to determine his normal mar- milked during the base period and dur- ketings, or (2) in the case of an affected ing each pay period in the application. farmer whose commercial market con- (e) If the affected farmer markets his sists of direct retail sales to con- whole milk through a milk handler, a sumers, by multiplying the affected statement from the milk handler show- farmer’s normal marketings for each ing, for each pay period in the applica- such pay period by the average net tion period, the average price per hun- price per hundredweight of whole milk, dred-weight of whole milk similar in as determined by the county com- quality to that marketed by the af- mittee, which other producers in the fected farmer during the base period same area who marketed their whole used to determine his normal mar- milk through milk handlers received ketings. If the milk handler has infor- for whole milk similar in quality and mation as to the transportation, ad- butterfat test to that marketed by the ministrative, and other costs of mar- affected farmer during the base period keting which are normally incurred by used to determine his normal mar- producers who market through the ketings. milk handler but which the affected

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farmer did not incur because of re- (2) That the contamination of his moval of his whole milk from the mar- milk was not the result of his failure to ket, the average price stated by the use the pesticide, chemical, or toxic milk handler shall be the average gross substance, according to the directions price paid producers less any such and limitations stated on the label; costs. If the milk handler does not have (3) That the contamination of his such information, the affected farmer milk was not otherwise his fault. shall furnish a statement setting forth (b) If the pesticide, chemical, or toxic such costs, if any. substance contaminating the milk was (f) The amount of proceeds, if any, re- not used by the affected farmer, he es- ceived by the affected farmer from the tablishes each of the following: marketing of whole milk produced dur- (1) He did not know or have reason to ing the application period. believe that any feed which he pur- (g) The amount of any payments not chased and which contaminated his subject to refund made to the affected milk contained a harmful residue of a farmer by the milk handler with re- pesticide, a chemical, or a toxic sub- spect to the whole milk produced dur- stance or was contaminated by nuclear ing the application period and remove radiation or fallout. from the commercial market. (2) None of the milk was produced by (h) To the extent that such informa- dairy cattle which he knew, or had rea- tion is available to the affected farmer, son to know at the time he acquired the name of any pesticide, chemical, or them, were contaminated with residues toxic substance used on the farm with- of pesticides, chemicals or toxic sub- in 24 months prior to the application stances, or by nuclear radiation or fall- period, the use made of the pesticide, out. chemical, or toxic substance, the ap- (3) The contamination of his milk proximate date of such use, and the was not otherwise his fault. name of the manufacturer and the reg- (c) The affected farmer has adopted istration number, if any, on the label recommended practices for eliminating on the container of the pesticide, residues of pesticides, chemicals, or chemical, or toxic substance. toxic substances or contamination (i) To the extent possible, the source from nuclear radiation or fallout from of the pesticide, chemical, or toxic sub- his milk as soon as practicable fol- stance that caused the contamination lowing the discovery of the initial con- of the whole milk, and the results of tamination. any laboratory tests on the feed sup- [43 FR 10535, Mar. 14, 1978, as amended at 47 ply. FR 24689, June 8, 1982] (j) Such other information as the county committee may request to en- § 760.8 Application for payments for able the county committee or the Dep- milk. uty Administrator to make the deter- The affected farmer or his legal rep- minations required in this subpart. resentative, as provided in §§ 760.25 and [43 FR 10535, Mar. 14, 1978, as amended by 760.29, must sign and file an application Amdt. 1, 44 FR 36360, June 22, 1979] for payment on a form which is approved for that purpose by the Deputy § 760.7 Other requirements for af- Administrator. The form must be filed fected farmers. with the county FSA office for the An indemnity payment for milk may county where the farm headquarters be made under this subpart to an af- are located no later than December 31 fected farmer only under the following following the end of the fiscal year in conditions: which the loss occurred, or such later (a) If the pesticide, chemical, or toxic date as the Deputy Administrator may substance, contaminating the milk was specify. The application for payment used by the affected farmer, he estab- shall cover application periods of at lished each of the following: least 28 days, except that, if the entire (1) That the pesticide, chemical or application period, or the last applica- toxic substance, when used, was reg- tion period, is shorter than 28 days, ap- istered (if applicable) and approved for plications for payment may be filed for use as provided in § 760.2(f); such shorter period. The application

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for payment shall be accompanied by and no longer producing milk from its the information required by § 760.6 as most immediately preceding birth well as any other information which after the contaminating event, or have will enable the county committee to exceeded the 18-month period will not determine whether the making of an be compensated any further. Dairy pro- indemnity payment is precluded for ducers that have exceeded the specified any of the reasons set forth in § 760.7. period established by FSA before June Such information shall be submitted 18, 2018 will be allowed to submit one on forms approved for the purpose by additional claim. Dairy cows purchased the Deputy Administrator. or bred after the occurrence of the con- [43 FR 10535, Mar. 14, 1978, as amended at 51 taminating event may not be included FR 12986, Apr. 17, 1986; 52 FR 17935, May 13, in the claim for benefits. 1987] [Amdt. 1, 44 FR 36361, June 22, 1979, as § 760.9 Other legal recourse. amended at 84 FR 28176, June 18, 2019] (a) No indemnity payment shall be PAYMENTS TO MANUFACTURERS made for contaminated milk resulting AFFECTED BY PESTICIDES from residues of chemicals or toxic substances if, within 30 days after re- § 760.20 Payments to manufacturers of ceiving a complete application, the dairy products. Deputy Administrator determines that An indemnity payment may be made other legal recouse is available to the to the affected manufacturer who is de- farmer. An application shall not be termined by the Deputy Administrator deemed complete unless it contains all to be in compliance with all the terms information necessary to make a deter- and conditions of this subpart in the mination as to whether other legal re- amount of the fair market value of the course is available to the farmer. How- product removed from the commercial ever, notwithstanding such a deter- market because of pesticide residues, mination, the Deputy Administrator less any amount the manufacturer re- may reopen the case at a later date and ceives for the product in the form of make a new determination on the mer- salvage. its of the case as may be just and equitable. NOTE: Manufacturers are not eligible for (b) In the event that a farmer repayment when dairy products are contami- ceives an indemnity payment under nated by chemicals, toxic substances (other this subpart, and such farmer is later than pesticides) or nuclear radiation or fallout. compensated for the same loss by the person (or the representative or suc- [43 FR 10535, Mar. 14, 1978, as amended at 47 cessor in interest of such person) re- FR 24689, June 8, 1982] sponsible for such loss, the indemnity payment shall be refunded by the farm- § 760.21 Application for payments by manufacturers. er to the Department of Agriculture: Provided, That the amount of such re- The affected manufacturer, or his fund shall not exceed the amount of legal representatives, shall file an ap- other compensation received by the plication for payment with the Deputy farmer. Administrator, FSA, Washington, D.C., (c) The period eligible for DIPP bene- through the county office serving the fits for the same loss may not extend county where the contaminated prod- past the time period that the impacted uct is located. The application for pay- dairy cows in the dairy herd are no ment may be in the form of a letter or longer lactating or impacted dairy memorandum. Such letter or memo- cows in gestation have delivered a calf randum, however, must be accom- and are no longer lactating from its panied by acceptable documentation to most immediately preceding birth support such application for payment. after the contaminating event, not to exceed 18 months. Claims for milk from § 760.22 Information to be furnished the affected farmer not reinstated to by manufacturer. the commercial markets after the im- The affected manufacturer shall fur- pacted dairy cows in the herd are dry nish the Deputy Administrator,

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through the county committee, com- sponsible for such loss, the indemnity plete and accurate information suffi- payment shall be refunded by the man- cient to enable him to make the deter- ufacturer to the Department of Agri- mination as to the manufacturer’s eli- culture: Provided, That the amount of gibility to receive an indemnity pay- such refund shall not exceed the ment. Such information shall include, amount of other compensation received but is not limited to: by the manufacturer. (a) A copy of the notice or other evidence of action by the public agency [43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982; 51 FR 12987, Apr. 17, which resulted in the product being re- 1986; 52 FR 17935, May 13, 1987] moved from the commerical market. (b) The name of the pesticide causing GENERAL PROVISIONS the removal of the product from the commerical market and, to the extent § 760.24 Limitation of authority. possible, the source of the pesticide. (a) County executive directors and (c) A record of the quantity of milk State and county committees do not or butterfat used to produce the prod- have authority to modify or waive any uct for which an indemnity payment is of the provisions of the regulations in requested. this subpart. (d) The identity of any pesticide used (b) The State committee may take by the affected manufacturer. any action authorized or required by (e) Such other information as the the regulations in this subpart to be Deputy Administrator may request to taken by the county committee when enable him to make the determina- such action has not been taken by the tions required in this subpart. county committee. The State com- § 760.23 Other requirements for manu- mittee may also: facturers. (1) Correct, or require a county com- An indemnity payment may be made mittee to correct, any action taken by under this subpart to an affected man- such county committee which is not in ufacturer only under the following con- accordance with the regulations in this ditions: subpart, or (2) require a county com- (a) If the pesticide contaminating the mittee to withhold taking any action product was used by the affected manu- which is not in accordance with the facturer, he establishes each of the fol- regulations in this subpart. lowing: (1) That the pesticide, when (c) No delegation herein to a State or used, was registered and recommended county committee shall preclude the for such use as provided in § 760.2(f); (2) Deputy Administrator or his designee that the contamination of his product from determining any question arising was not the result of his failure to use under the regulations in this subpart the pesticide in accordance with the di- or from reversing or modifying any de- rections and limitations stated on the termination made by a State or county label of the pesticide; and (3) that the committee. contamination of his product was not otherwise his fault. § 760.25 Estates and trusts; minors. (b) If the pesticide contaminating the (a) A receiver of an insolvent debtor’s product was not used by the affected estate and the trustee of a trust estate manufacturer: (1) He did not know or shall, for the purpose of this subpart, have reason to believe that the milk be considered to represent an insolvent from which the product was processed affected farmer or manufacturer and contained a harmful level of pesticide the beneficiaries of a trust, respec- residue, and (2) the contamination of tively, and the production of the re- his product was not otherwise his fault. ceiver or trustee shall be considered to (c) In the event that a manufacturer be the production of the person or man- receives an indemnity payment under ufacturer he represents. Program docu- this subpart, and such manufacturer is ments executed by any such person will later compensated for the same loss by be accepted only if they are legally the person (or the representative or valid and such person has the authority successor in interest of such person) re- to sign the applicable documents.

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(b) An affected dairy farmer or manu- would otherwise receive an indemnity facturer who is a minor shall be eligi- payment, such payment may be made ble for indemnity payments only if he to the person or persons specified in meets one of the following require- the regulations contained in part 707 of ments: this chapter. The person requesting (1) The right of majority has been such payment shall file Form FSA–325, conferred on him by court proceedings ‘‘Application for Payment of Amounts or by statute; Due Persons Who Have Died, Dis- (2) A guardian has been appointed to appeared, or Have Been Declared In- manage his property and the applicable competent,’’ as provided in that part. program documents are signed by the guardian; or [43 FR 10535, Mar. 14, 1978, as amended at 47 (3) A bond is furnished under which FR 24689, June 8, 1982] the surety guarantees any loss incurred for which the minor would be § 760.30 Records and inspection there- liable had he been an adult. of. (a) The affected farmer, as well as his § 760.26 Appeals. milk handler and any other person who The appeal regulations issued by the furnished information to such farmer Administrator, FSA, part 780 of this or to the county committee for the chapter, shall be applicable to appeals purpose of enabling such farmer to re- by dairy farmers or manufacturers ceive a milk indemnity payment under from determinations made pursuant to this subpart, shall maintain any exist- the regulations in this subpart. ing books, records, and accounts sup- § 760.27 Setoffs. porting any information so furnished for 3 years following the end of the (a) If the affected farmer or manufac- year during which the application for turer is indebted to any agency of the United States and such indebtedness is payment was filed. The affected farm- listed on the county debt record, in- er, his milk handler, and any other per- demnity payments due the affected son who furnishes such information to farmer or manufacturer under the reg- the affected farmer or to the county ulations in this part shall be applied, committee shall permit authorized rep- as provided in the Secretary’s setoff resentatives of the Department of Agri- regulations, part 13 of this title, to culture and the General Accounting Of- such indebtedness. fice, during regular business hours, to (b) Compliance with the provisions of inspect, examine, and make copies of this section shall not deprive the af- such books, records, and accounts. fected farmer or manufacturer of any (b) The affected manufacturer or any right he would otherwise have to con- other person who furnishes information test the justness of the indebtedness to the Deputy Administrator for the involved in the setoff action, either by purposes of enabling such manufac- administrative appeal or by legal ac- turer to receive an indemnity payment tion. under this subpart shall maintain any books, records, and accounts sup- § 760.28 Overdisbursement. porting any information so furnished If the indemnity payment disbursed for 3 years following the end of the to an affected farmer or to a manufac- year during which the application for turer exceeds the amount authorized payment was filed. The affected manu- under the regulations in this subpart, facturer or any other person who fur- the affected farmer or manufacturer nishes such information to the Deputy shall be personally liable for repayment of the amount of such excess. Administrator shall permit authorized representatives of the Department of § 760.29 Death, incompetency, or dis- Agriculture and the General Account- appearance. ing Office, during regular business In the case of the death, incom- hours, to inspect, examine, and make petency, or disappearance of any af- copies of such books, records, and ac- fected farmer or manufacturer who counts.

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§ 760.31 Assignment. (1) Emergency Assistance for Live- stock, Honey Bees, and Farm-Raised No assignment shall be made of any Fish Program (ELAP); indemnity payment due or to come due (2) Livestock Forage Disaster Pro- under the regulations in this subpart. gram (LFP); Any assignment or attempted assign- (3) Livestock Indemnity Payments ment of any indemnity payment due or Program (LIP); to come due under this subpart shall be (4) Supplemental Revenue Assistance null and void. Payments Program (SURE); and (5) Tree Assistance Program (TAP). § 760.32 Instructions and forms. (b) To be eligible for payments under The Deputy Administrator shall these programs, participants must cause to be prepared such forms and in- comply with all provisions under this structions as are necessary for car- subpart and the relevant particular rying out the regulations in this sub- subpart for that program. All other part. Affected farmers and manufactur- provisions of law also apply. ers may obtain information necessary to make application for a dairy indem- § 760.102 Administration of ELAP, nity payment from the county FSA of- LFP, LIP, SURE, and TAP. fice. Form FSA–373—Application for (a) The programs in subparts C Indemnity Payment, is available at the through H of this part will be adminis- county ASC office. tered under the general supervision and direction of the Administrator, Farm [43 FR 10535, Mar. 14, 1978, as amended at 47 Service Agency (FSA), and the Deputy FR 24689, June 8, 1982] Administrator for Farm Programs, FSA (who is referred to as the ‘‘Deputy § 760.33 Availability of funds. Administrator’’ in this part). (a) Payment of indemnity claims will (b) FSA representatives do not have be contingent upon the availability of authority to modify or waive any of FSA funds to pay such claims. Claims the provisions of the regulations of this will be, to the extent practicable with- part as amended or supplemented, ex- in funding limits, paid from available cept as specified in paragraph (e) of funds, on a first-come, first-paid basis, this section. based on the date FSA approves the ap- (c) The State FSA committee will plication, until funds available in that take any action required by the regula- fiscal year have been expended. tions of this part that the county FSA (b) DIPP claims received in a fiscal committee has not taken. The State year after all available funds have been FSA committee will also: expended will not receive payment for (1) Correct, or require a county FSA such claims. committee to correct, any action taken by such county FSA committee that is [75 FR 41367, July 16, 2010] not in accordance with the regulations of this part or Subpart B—General Provisions for (2) Require a county FSA committee Supplemental Agricultural Dis- to withhold taking any action that is aster Assistance Programs not in accordance with this part. (d) No provision or delegation to a State or county FSA committee will SOURCE: 74 FR 31571, July 2, 2009, unless preclude the Administrator, the Dep- otherwise noted. uty Administrator for Farm Programs, or a designee or other such person, § 760.101 Applicability. from determining any question arising (a) This subpart establishes general under the programs of this part, or conditions for this subpart and sub- from reversing or modifying any deter- parts C through H of this part and ap- mination made by a State or county plies only to those subparts. Subparts FSA committee. C through H cover the following pro- (e) The Deputy Administrator for grams provided for in the ‘‘2008 Farm Farm Programs may authorize State Bill’’ (Pub. L. 110–246): and county FSA committees to waive

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or modify non-statutory deadlines, or ministered by RMA under the Federal other program requirements of this Crop Insurance Act (FCIA) (7 U.S.C. part in cases where lateness or failure 1501–1524), except that this obligation to meet such requirements does not ad- will not include crop insurance pilot versely affect operation of the pro- programs so designated by RMA or to grams in this part. Participants have forage crops intended for grazing, and no right to seek an exception under (ii) In the case of a ‘‘noninsurable this provision. The Deputy Administra- commodity,’’ (which is any commodity tor’s refusal to consider cases or cir- for which, as to the particular produc- cumstances or decision not to exercise tion in question, is not an ‘‘insurable this discretionary authority under this commodity,’’ but for which coverage is provision will not be considered an ad- available under the Noninsured Crop verse decision and is not appealable. Disaster Assistance Program (NAP) op- § 760.103 Eligible producer. erated under 7 CFR part 1437), have obtained NAP coverage by filing the (a) In general, the term ‘‘eligible pro- proper paperwork and fee within the ducer’’ means, in addition to other re- relevant deadlines, except that this requirements as may apply, an individual quirement will not include forage on or entity described in paragraph (b) of this section that, as determined by the grazing land. Secretary, assumes the production and (2) LFP, with respect to those graz- market risks associated with the agri- ing lands incurring losses for which as- cultural production of crops or live- sistance is being requested, eligible stock on a farm either as the owner of livestock producers must have: the farm, when there is no contract (i) Obtained a policy or plan of insur- grower, or a contract grower of the ance for the forage crop under FCIA, or livestock when there is a contract (ii) Filed the required paperwork and grower. paid the administrative fee by the ap- (b) To be eligible for benefits, an in- plicable State filing deadline for NAP dividual or entity must be a: coverage for that grazing land. (1) Citizen of the United States; (b) Producers who did not purchase a (2) Resident alien; for purposes of policy or plan of insurance adminis- this part, resident alien means ‘‘lawful tered by RMA in accordance with FCIA alien’’ as defined in 7 CFR part 1400; (7 U.S.C. 1501–1524), or NAP coverage (3) Partnership of citizens of the for their applicable crops, will not be United States; or eligible for assistance under ELAP, (4) Corporation, limited liability cor- LFP, SURE, and TAP, as provided in poration, or other farm organizational paragraph (a) of this section unless the structure organized under State law. producer is one of the classes of farm- § 760.104 Risk management purchase ers for which an exemption under requirements. § 760.107 apply, is exempt under the (a) To be eligible for program pay- ‘‘buy-in’’ provisions of this subpart, or ments under: is granted relief from that requirement (1) ELAP, SURE, and TAP, eligible by the Deputy Administrator under producers for any commodity at any some other provision of this part. location for which the producer seeks (c) Producers who have obtained in- benefits must have for every com- surance by a written agreement as modity on every farm in which the pro- specified in § 400.652(d) of this title even ducer has an interest for the relevant though that production would not nor- program year: mally be considered an ‘‘insurable com- (i) In the case of an ‘‘insurable commodity’’ under the rules of this sub- modity,’’ (which for this part means a part, will be considered to have met commodity for which the Deputy Ad- the risk management purchase require- ministrator determines catastrophic ment of this subpart with respect to coverage is available from the USDA such production. The commodity to Risk Management Agency (RMA)) ob- which the agreement applies will be tained catastrophic coverage or better considered for purposes of this subpart under a policy or plan of insurance ad- to be an ‘‘insurable commodity.’’

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(d) Producers by an administrative (1) Insurable commodity, excluding process who were granted NAP cov- grazing land, the eligible producers on erage for the relevant period as a form the farm agree to obtain a policy or of relief in an administrative pro- plan of insurance under FCIA (7 U.S.C. ceeding, or who were awarded NAP cov- 1501–1524), excluding a crop insurance erage for the relevant period through pilot program under that subtitle, for an appeal through the National Ap- the next insurance year for which crop peals Division (NAD), will be consid- insurance is available to the eligible ered as having met the NAP eligibility producers on the farm at a level of cov- criteria of this section for that crop as erage equal to 70 percent or more of the long as the applicable NAP service fee recorded or appraised average yield in- has been paid. demnified at 100 percent of the ex- (e) The risk management purchase pected market price, or an equivalent requirement for programs specified coverage, and under this part will be determined (2) Noninsurable commodity, the eli- based on the initial intended use of a gible producers on the farm must agree crop at the time a policy or plan of in- to file the required paperwork, and pay surance or NAP coverage was pur- the administrative fee by the applica- chased and as reported on the acreage ble State filing deadline, for NAP for report. the next year for which a policy is available. [74 FR 31571, July 2, 2009, as amended at 74 (d) For producers seeking eligibility FR 46673, Sept. 11, 2009] under paragraph (c) of this section, the applicable buy-in fee for the 2008 crop § 760.105 Waiver for certain crop year was the catastrophic risk protec- years; buy-in. tion plan fee or the applicable NAP (a) For the 2008 crop year, the insur- service fee in effect prior to NAP serv- ance or NAP purchase requirements of ice fee adjustments specified in the 2008 § 760.104 (this is referred to as the ‘‘pur- Farm Bill. chase’’ requirement) will be waived for eligible producers for losses during the § 760.106 Equitable relief. 2008 crop year if the eligible producer (a) The Secretary may provide equi- paid a fee (buy-in fee) equal to the ap- table relief on a case-by-case basis for plicable NAP service fee or cata- the purchase requirement to eligible strophic risk protection plan fee to the participants that: Secretary by September 16, 2008. Pay- (1) Are otherwise ineligible or pro- ment of a buy-in fee under this section vide evidence, satisfactory to FSA, is for the sole purpose of becoming eli- that the failure to meet the require- gible for participation in ELAP, LFP, ments of § 760.104 for one or more eligi- SURE, and TAP. Payment of a buy-in ble crops on the farm was uninten- fee does not provide any actual insur- tional and not because of any fault of ance or NAP coverage or assistance. the participant, as determined by the (b) For the 2009 crop year, the pur- Secretary, or chase requirement will be waived for (2) Failed to meet the requirements purchases where the closing date for of § 760.104 due to the enactment of the coverage occurred prior to August 14, 2008 Farm Bill after the: 2008, so long as the buy-in fee set by (i) Applicable sales closing date for a the Secretary of Agriculture was paid policy or plan of insurance in accord- by January 12, 2009. ance with the FCIA (7 U.S.C. 1501–1524) (c) Any producer of 2008 commodities or who is otherwise ineligible because of (ii) Application closing date for NAP. the purchase requirement and who did (b) Equitable relief will not be grant- not meet the conditions of paragraph ed to participants in instances of: (a) of this section may still be covered (1) A scheme or device that had the for ELAP, SURE, or TAP assistance if effect or intent of defeating the pur- the producer paid the applicable fee de- poses of a program of insurance, NAP, scribed in paragraph (d) of this section or any other program administered no later than May 18, 2009, provided under this part or elsewhere in this that in the case of each: title,

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(2) An intentional decision to not Gender is not included as a covered meet the purchase or buy-in require- group. Socially disadvantaged groups ments, include the following and no others un- (3) Producers against whom sanctions less approved in writing by the Deputy have been imposed by RMA or FSA Administrator: prohibiting the purchase of coverage or (i) American Indians or Alaskan Na- prohibiting the receipt of payments tives, otherwise payable under this part, (ii) Asians or Asian-Americans, (4) Violations of highly erodible land (iii) Blacks or African Americans, and wetland conservation provisions of (iv) Native Hawaiians or other Pa- 7 CFR part 12, cific Islanders, and (5) Producers who are ineligible (v) Hispanics. under any provisions of law, including (2) A ‘‘limited resource farmer or regulations, relating to controlled sub- rancher’’ means for this section a pro- stances (see for example 7 CFR 718.6), ducer who is both: or (i) A producer whose direct or indi- (6) A producer’s debarment by a fed- rect gross farm sales do not exceed eral agency from receiving any federal $100,000 in both of the two calendar government payment if such debar- years that precede the calendar year ment included payments of the type in- that corresponds to the relevant pro- volved in this matter. gram year, adjusted upwards for any (c) In general, no relief that is discre- general inflation since fiscal year 2004, tionary will be allowed except upon a inflation as measured using the Prices finding by the Deputy Administrator Paid by Farmer Index compiled by the or the Deputy Administrator’s designee National Agricultural Statistics Serv- that the person seeking the relief acted ice (NASS), and in good faith as determined in accord- (ii) A producer whose total household ance with such rules and procedures as income is at or below the national pov- may be set by the Deputy Adminis- erty level for a family of four, or less trator. than 50 percent of the county median [74 FR 31571, July 2, 2009, as amended at 76 household income for the same two cal- FR 54075, Aug. 31, 2011] endar years referenced in paragraph (b)(2)(i) of this section, as determined § 760.107 Socially disadvantaged, lim- annually using Commerce Department ited resource, or beginning farmer data. (Limited resource farmer or or rancher. rancher status can be determined using (a) Risk management purchase re- a Web site available through the Lim- quirements, as provided in § 760.104, will ited Resource Farmer and Rancher On- be waived for a participant who, as line Self Determination Tool through specified in paragraphs (b)(1) through the National Resource and Conserva- (3) of this section, is eligible to be con- tion Service at http:// sidered a ‘‘socially disadvantaged farm- www.lrftool.sc.egov.usda.gov/tool.asp.) er or rancher,’’ a ‘‘limited resource (3) A ‘‘beginning farmer or rancher’’ farmer or rancher,’’ or a ‘‘beginning means for this section a person or legal farmer or rancher.’’ entity who for a program year both: (b) To qualify for this section as a (i) Has never previously operated a ‘‘socially disadvantaged farmer or farm or ranch, or who has not operated rancher,’’ ‘‘limited resource farmer or a farm or ranch in the previous 10 rancher,’’ or ‘‘beginning farmer or years, applicable to all members rancher,’’ participants must meet eligi- (shareholders, partners, beneficiaries, bility criteria as follows: etc., as fits the circumstances) of an (1) A ‘‘socially disadvantaged farmer entity, and or rancher’’ is, for this section, a farm- (ii) Will have or has had for the rel- er or rancher who is a member of a so- evant period materially and substan- cially disadvantaged group whose tially participated in the operation of a members have been subjected to racial farm or ranch. or ethnic prejudice because of their (c) If a legal entity requests to be identity as members of a group without considered a ‘‘socially disadvantaged,’’ regard to their individual qualities. ‘‘limited resource,’’ or ‘‘beginning’’

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farmer or rancher, at least 50 percent modity in the absence of the loss, as es- of the persons in the entity must in timated by FSA. their individual capacities meet the (2) [Reserved] definition as provided in paragraphs (d) In applying the limitation on av- (b)(1) through (3) of this section and it erage adjusted gross income (AGI) for must be clearly demonstrated that the 2008, an individual or entity is ineli- entity was not formed for the purposes gible for payment under ELAP, LFP, of avoiding the purchase requirements LIP, SURE, and TAP if the individual’s or formed after the deadline for the or entity’s average adjusted gross in- purchase requirement. come (AGI) exceeds $2.5 million for 2007, 2006, and 2005 under the provisions [74 FR 31571, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011] in part 1400 of this title in effect for 2008. § 760.108 Payment limitation. (e) For 2009 through 2011, the average AGI limitation provisions in part 1400 (a) For 2008, no person, as defined and of this title relating to limits on pay- determined under the provisions in ments for persons or legal entities, ex- part 1400 of this title in effect for 2008 cluding joint ventures and general may receive more than: partnerships, with certain levels of av- (1) $100,000 total for the 2008 program erage adjusted gross income (AGI) will year under ELAP, LFP, LIP, and SURE apply under this subpart and will apply combined or to each applicant for ELAP, LFP, LIP, (2) $100,000 for the 2008 program year SURE, and TAP. Specifically, for 2009 under TAP. through 2011, a person or legal entity (b) For 2009 and subsequent program with an average adjusted gross non- years, no person or legal entity, ex- farm income, as defined in § 1404.3 of cluding a joint venture or general part- this title, that exceeds $500,000 will not nership, as determined by the rules in be eligible to receive benefits under part 1400 of this title may receive, di- this part. rectly or indirectly, more than: (f) The direct attribution provisions (1) $100,000 per program year total in part 1400 of this title apply to ELAP, under ELAP, LFP, LIP, and SURE LFP, LIP, SURE, and TAP for 2009 and combined; or subsequent years. Under those rules, (2) $100,000 per program year under any payment to any legal entity will TAP. also be considered for payment limita- (c) The Deputy Administrator may tion purposes to be a payment to per- take such actions as needed, whether sons or legal entities with an interest or not specifically provided for, to in the legal entity or in a sub-entity. If avoid a duplication of benefits under any such interested person or legal en- the multiple programs provided for in tity is over the payment limitation be- this part, or duplication of benefits re- cause of direct payment or their indi- ceived in other programs, and may im- rect interests or a combination thereof, pose such cross-program payment limi- then the payment to the actual payee tations as may be consistent with the will be reduced commensurate with the intent of this part. amount of the interest of the inter- (1) FSA will review ELAP payments ested person in the payee. Likewise, by after the funding factor as specified in the same method, if anyone with a di- § 760.208 is determined to be 100 percent. rect or indirect interest in a legal enti- FSA will ensure that total ELAP pay- ty or sub-entity of a payee entity ex- ments provided to a participant in a ceeds the AGI levels that would allow a year, together with any amount pro- participant to directly receive a pay- vided to the same participant for the ment under this part, then the pay- same loss as a result of any Federal ment to the actual payee will be re- crop insurance program, the Non- duced commensurately with that inter- insured Crop Disaster Assistance Pro- est. For all purposes under this section, gram, or any other Federal disaster unless otherwise specified in part 1400 program, plus the value of the com- of this title, the AGI figure that will be modity that was not lost, is not more relevant for a person or legal entity than 95 percent of the value of the com- will be an average AGI for the three

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taxable years that precede the most include, but are not limited to, applica- immediately preceding complete tax- tion periods, deadlines, coverage peri- able year, as determined by CCC. ods, crop years, fees, prices, general [74 FR 31571, July 2, 2009, as amended at 74 statutory or regulatory provisions that FR 46673, Sept. 11, 2009] apply to similarly situated participants, national average payment § 760.109 Misrepresentation and prices, regions, crop definition, average scheme or device. yields, and payment factors established (a) A participant who is determined by FSA for any of the programs for to have deliberately misrepresented which this subpart applies or similar any fact affecting a program deter- matters requiring FSA determinations. mination made in accordance with this part, or otherwise used a scheme or de- § 760.111 Offsets, assignments, and vice with the intent to receive benefits debt settlement. for which the participant would not (a) Any payment to any participant otherwise be entitled, will not be enti- under this part will be made without tled to program payments and must re- regard to questions of title under State fund all such payments received, plus law, and without regard to any claim interest as determined in accordance with part 792 of this chapter. The par- or lien against the commodity, or pro- ticipant will also be denied program ceeds, in favor of the owner or any benefits for the immediately subse- other creditor except agencies of the quent period of at least 2 crop years, U.S. Government. The regulations gov- and up to 5 crop years. Interest will run erning offsets and withholdings in part from the date of the original disburse- 792 of this title apply to payments ment by FSA. made under this part. (b) A participant will refund to FSA (b) Any participant entitled to any all program payments, plus interest, as payment may assign any payment(s) in determined in accordance with part 792 accordance with regulations governing of this chapter, provided however, that the assignment of payments in part in any case it will run from the date of 1404 of this title. the original disbursement, received by such participant with respect to all § 760.112 Records and inspections. contracts or applications, as may be (a) Any participant receiving pay- applicable, if the participant is deter- ments under any program in ELAP, mined to have knowingly done any of LFP, LIP, SURE, or TAP, or any other the following: legal entity or person who provides in- (1) Adopted any scheme or device formation for the purposes of enabling that tends to defeat the purpose of the a participant to receive a payment program, under ELAP, LFP, LIP, SURE, or TAP, (2) Made any fraudulent representa- must: tion, or (1) Maintain any books, records, and (3) Misrepresented any fact affecting a program determination. accounts supporting the information for 3 years following the end of the § 760.110 Appeals. year during which the request for pay- (a) Appeals. Appeal regulations set ment was submitted, and forth at parts 11 and 780 of this title (2) Allow authorized representatives apply to this part. of USDA and the Government Account- (b) Determinations not eligible for ad- ability Office, during regular business ministrative review or appeal. FSA deter- hours, to inspect, examine, and make minations that are not in response to a copies of such books or records, and to specific individual participant’s appli- enter the farm and to inspect and cation are not to be construed to be in- verify all applicable livestock and acre- dividual program eligibility determina- age in which the participant has an in- tions or adverse decisions and are, terest for the purpose of confirming the therefore, not subject to administra- accuracy of information provided by or tive review or appeal under parts 11 or for the participant. 780 of this title. Such determinations (b) [Reserved]

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§ 760.113 Refunds; joint and several li- and 718 of this title, and must not oth- ability. erwise be precluded from receiving ben- (a) In the event that the participant efits under those provisions or under fails to comply with any term, require- any law. ment, or condition for payment or as- (b) Rules of the Commodity Credit sistance arising under ELAP, LFP, Corporation that are cited in this part LIP, SURE, or TAP and if any refund will be applied to this subpart in the of a payment to FSA will otherwise be- same manner as if the programs cov- come due in connection with this part, ered in this subpart were programs the participant must refund to FSA all funded by the Commodity Credit Cor- payments made in regard to such mat- poration. ter, together with interest and late- payment charges as provided for in Subpart C—Emergency Assist- part 792 of this chapter provided that ance for Livestock, Honey- interest will in all cases run from the bees, and Farm-Raised Fish date of the original disbursement. Program (b) All persons with a financial interest in an operation or in an application for payment will be jointly and sever- SOURCE: 74 FR 46673, Sept. 11, 2009, unless ally liable for any refund, including re- otherwise noted. lated charges, that is determined to be § 760.201 Applicability. due FSA for any reason under this part. (a) This subpart establishes the terms and conditions under which the § 760.114 Minors. Emergency Assistance for Livestock, A minor child is eligible to apply for Honeybees, and Farm-Raised Fish Pro- program benefits under ELAP, LFP, gram (ELAP) will be administered. LIP, SURE, or TAP if all the eligibility (b) Eligible producers of livestock, requirements are met and the provision honeybees, and farm-raised fish will be for minor children in part 1400 of this compensated to reduce eligible losses title are met. that occurred in the calendar year for which the producer requests benefits. § 760.115 Deceased individuals or dis- The eligible loss must have been a di- solved entities. rect result of eligible adverse weather (a) Payments may be made for eligi- or eligible loss conditions as deter- ble losses suffered by an eligible partic- mined by the Deputy Administrator, ipant who is now a deceased individual including, but not limited to, blizzards, or is a dissolved entity if a representa- wildfires, disease, and insect infesta- tive, who currently has authority to tion. ELAP does not cover losses that enter into a contract, on behalf of the are covered under LFP, LIP, or SURE. participant, signs the application for payment. § 760.202 Definitions. (b) Legal documents showing proof of The following definitions apply to authority to sign for the deceased indi- this subpart and to the administration vidual or dissolved entity must be proof ELAP. The definitions in parts 718 vided. and 1400 of this title also apply, except (c) If a participant is now a dissolved where they conflict with the defini- general partnership or joint venture, tions in this section. all members of the general partnership Adult beef bull means a male beef or joint venture at the time of dissolu- breed bovine animal that was used for tion or their duly authorized represent- breeding purposes that was at least 2 atives must sign the application for years old before the beginning date of payment. the eligible adverse weather or eligible loss condition. § 760.116 Miscellaneous. Adult beef cow means a female beef (a) As a condition to receive benefits breed bovine animal that had delivered under ELAP, LFP, LIP, SURE, or TAP, one or more offspring before the begin- a participant must have been in com- ning date of the eligible adverse weath- pliance with the provisions of parts 12 er or eligible loss condition. A first-

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time bred beef heifer is also considered Bait fish means small fish caught for an adult beef cow if it was pregnant on use as bait to attract large predatory or by the beginning date of the eligible fish. For ELAP, it also must meet the adverse weather or eligible loss condi- definition of aquatic species and not be tion. raised as food for fish; provided, how- Adult buffalo and beefalo bull means a ever, that only bait fish produced in a male animal of those breeds that was controlled environment can generate used for breeding purposes and was at claims under ELAP. least 2 years old before the beginning Buck means a male goat. date of the eligible adverse weather or Commercial use means used in the op- eligible loss condition. eration of a business activity engaged Adult buffalo and beefalo cow means a in as a means of livelihood for profit by female animal of those breeds that had the eligible producer. delivered one or more offspring before Contract means, with respect to con- the beginning date of the eligible ad- tracts for the handling of livestock, a verse weather or eligible loss condi- written agreement between a livestock tion. A first-time bred buffalo or beef- owner and another individual or entity alo heifer is also considered an adult setting the specific terms, conditions, buffalo or beefalo cow if it was preg- and obligations of the parties involved nant by the beginning date of the eligi- regarding the production of livestock ble adverse weather or eligible loss or livestock products. condition. Controlled environment means an envi- Adult dairy bull means a male dairy ronment in which everything that can breed bovine animal that was used pri- practicably be controlled by the partic- marily for breeding dairy cows and was ipant with structures, facilities, and at least 2 years old by the beginning growing media (including, but not lim- date of the eligible adverse weather or ited to, water and nutrients) was in eligible loss condition. fact controlled by the participant at Adult dairy cow means a female bo- the time of the eligible adverse weath- vine dairy breed animal used for the er or eligible loss condition. purpose of providing milk for human County committee or county office consumption that had delivered one or means the respective FSA committee more offspring by the beginning date of or office. the eligible adverse weather or eligible Deputy Administrator or DAFP means loss condition. A first-time bred dairy the Deputy Administrator for Farm heifer is also considered an adult dairy Programs, Farm Service Agency, U.S. cow if it was pregnant by the beginning Department of Agriculture or the des- date of the eligible adverse weather or ignee. eligible loss condition. Eligible adverse weather or eligible loss Agricultural operation means a farm- condition means any disease, adverse ing operation. weather, or other loss condition as de- Application means FSA form used to termined by the Deputy Administrator. apply for either the emergency loss as- The eligible adverse weather or eligible sistance for livestock or emergency loss condition would have resulted in loss assistance for farm-raised fish or agricultural losses not covered by honeybees. other programs in this part for which Aquatic species means any species of the Deputy Administrator determines aquatic organism grown as food for financial assistance needs to be pro- human consumption, fish raised as feed vided to producers. The disease, ad- for fish that are consumed by humans, verse weather, or other conditions may or ornamental fish propagated and include, but are not limited to, bliz- reared in an aquatic medium by a com- zards, wildfires, water shortages, and mercial operator on private property in other factors. Specific eligible adverse water in a controlled environment. weather and eligible loss conditions Catfish and crawfish are both defined may vary based on the type of loss. as aquatic species for ELAP. However, Identification of eligible adverse aquatic species do not include reptiles weather and eligible loss conditions or amphibians. will include locations (National, State,

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or county-level) and start and end 400 pounds or 400 pounds or more at the dates. time of death. For a loss other than Equine animal means a domesticated death, means an animal of those breeds horse, mule, or donkey. that is less than 2 years old that Ewe means a female sheep. weighed 500 pounds or more on or be- Farming operation means a business fore the beginning date of the eligible enterprise engaged in producing agri- adverse weather or eligible loss condi- cultural products. tion. Farm-raised fish means any aquatic Non-adult dairy cattle means a bovine species that is propagated and reared dairy breed animal used for the purpose in a controlled environment. of providing milk for human consump- FSA means the Farm Service Agency. tion that does not meet the definition Game or sport fish means fish pursued of adult dairy cow or bull. Non-adult for sport by recreational anglers; pro- dairy cattle are further delineated by vided, however, that only game or weight categories of either less than sport fish produced in a controlled en- 400 pounds or 400 pounds or more at the vironment can generate claims under time they died. For a loss other than ELAP. death, means a bovine dairy breed ani- Goat means a domesticated, rumi- mal used for the purpose of providing nant mammal of the genus Capra, in- milk for human consumption that is cluding Angora goats. Goats are fur- less than 2 years old that weighed 500 ther delineated into categories by sex pounds or more on or before the begin- (bucks and nannies) and age (kids). ning date of the eligible adverse weath- Kid means a goat less than 1 year old. er or eligible loss condition. Lamb means a sheep less than 1 year Normal grazing period, with respect to old. a county, means the normal grazing pe- Livestock owner, for death loss pur- riod during the calendar year with re- poses, means one having legal owner- spect to each specific type of grazing ship of the livestock for which benefits land or pastureland in the county. are being requested on the day such Normal mortality means the numerical livestock died due to an eligible ad- amount, computed by a percentage, as verse weather or eligible loss condi- established for the area by the FSA tion. For all other purposes of loss State Committee, of expected livestock under ELAP, ‘‘livestock owner’’ means deaths, by category, that normally one having legal ownership of the live- occur during a calendar year for a pro- stock for which benefits are being re- ducer. quested during the 60 days prior to the beginning date of the eligible adverse Poultry means domesticated chick- weather or eligible loss condition. ens, turkeys, ducks, and geese. Poultry are further delineated into categories Nanny means a female goat. by sex, age, and purpose of production Non-adult beef cattle means a beef breed bovine animal that does not meet as determined by FSA. the definition of adult beef cow or bull. Ram means a male sheep. Non-adult beef cattle are further delin- Secretary means the Secretary of Ag- eated by weight categories of either riculture or a designee of the Sec- less than 400 pounds or 400 pounds or retary. more at the time they died. For a loss Sheep means a domesticated, rumi- other than death, means a bovine ani- nant mammal of the genus Ovis. Sheep mal less than 2 years old that that are further defined by sex (rams and weighed 500 pounds or more on or be- ewes) and age (lambs) for purposes of fore the beginning date of the eligible dividing into categories for loss cal- adverse weather or eligible loss condi- culations. tion. State committee, State office, county Non-adult buffalo or beefalo means an committee, or county office means the re- animal of those breeds that does not spective FSA committee or office. meet the definition of adult buffalo or Swine means a domesticated omnivo- beefalo cow or bull. Non-adult buffalo rous pig, hog, or boar. Swine for pur- or beefalo are further delineated by poses of dividing into categories for weight categories of either less than loss calculations are further delineated

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into categories by sex and weight as determined by the Deputy Adminis- determined by FSA. trator, including, but not limited to, United States means all 50 States of blizzard, flood, hurricane, tidal surge, the United States, the Commonwealth tornado, volcanic eruption, wildfire on of Puerto Rico, the Virgin Islands of non-Federal land, or lightning; the United States, Guam, and the Dis- (3) A loss resulting from the addi- trict of Columbia. tional cost incurred for providing or transporting livestock feed to eligible § 760.203 Eligible losses, adverse weather, and other loss conditions. livestock due to an eligible adverse weather or eligible loss condition as (a) An eligible loss covered under this determined by the Deputy Adminis- subpart is a loss that an eligible pro- trator, including, but not limited to, ducer or contract grower of livestock, costs associated with equipment rental honeybees, or farm-raised fish incurs fees for hay lifts and snow removal. due to an eligible adverse weather or The additional costs incurred must eligible loss condition, as determined by the Deputy Administrator, (includ- have been incurred for losses suffered ing, but not limited to, blizzards and in the county where the eligible ad- wildfires). verse weather or eligible loss condition (b) A loss covered under LFP, LIP, or occurred; SURE is not eligible for ELAP. (4) A loss resulting from the addi- (c) To be eligible, the loss must have tional cost of purchasing additional occurred: livestock feed, above normal quan- (1) During the calendar year for tities, required to maintain the eligible which payment is being requested and livestock during an eligible adverse (2) Due to an eligible adverse weather weather or eligible loss condition, until event or loss condition that occurred additional livestock feed becomes on or after January 1, 2008, and before available, as determined by the Deputy October 1, 2011. Administrator. To be eligible, the addi- (d) For a livestock feed loss to be tional feed purchased above normal considered an eligible loss, the live- quantities must be feed that is fed to stock feed loss must be one of the fol- maintain livestock in the county where lowing: the eligible adverse weather or eligible (1) Loss of purchased forage or loss condition occurred. feedstuffs that was intended for use as (e) For a grazing loss to be considered feed for the participant’s eligible live- eligible, the grazing loss must have stock that was physically located in been incurred on eligible grazing lands the county where the eligible adverse physically located in the county where weather or eligible loss condition oc- the eligible adverse weather or eligible curred on the beginning date of the eli- loss condition occurred. The grazing gible adverse weather or eligible loss loss must be due to an eligible adverse condition. The loss must be due to an weather or eligible loss condition, as eligible adverse weather or eligible loss determined by the Deputy Adminis- condition, as determined by the Deputy Administrator, including, but not lim- trator, including, but not limited to, ited to, blizzard, flood, hurricane, tidal flood, freeze, hurricane, hail, tidal surge, tornado, volcanic eruption, wild- surge, volcanic eruption, and wildfire fire on non-Federal land, or lightning; on non-Federal land. The grazing loss (2) Loss of mechanically harvested will not be eligible if it is due to an ad- forage or feedstuffs intended for use as verse weather condition covered by feed for the participant’s eligible live- LFP as specified in subpart D, such as stock that was physically located in drought or wildfire on federally man- the county where the eligible adverse aged land where the producer is prohib- weather or eligible loss condition oc- ited by the Federal agency from graz- curred on the beginning date of the eli- ing the normally permitted livestock gible adverse weather or eligible loss on the managed rangeland due to a condition. The loss must have occurred fire. after harvest due to an eligible adverse (f) For a loss due to livestock death weather or eligible loss condition, as to be considered eligible, the livestock

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death must have occurred in the coun- (i) For a death loss for bait fish or ty where the eligible loss condition oc- game fish to be considered eligible, the curred. The livestock death must be producer must have incurred the loss due to an eligible loss condition deter- in the county where the eligible ad- mined as eligible by the Deputy Ad- verse weather or eligible loss condition ministrator and not related to an eligi- occurred. The bait fish or game fish ble adverse weather event as specified death must be due to an eligible ad- in Subpart E for LIP. verse weather or eligible loss condition (g) For honeybee or farm-raised fish as determined by the Deputy Adminis- feed losses to be considered eligible, trator including, but not limited to, an the honeybee or farm-raised fish feed earthquake, flood, hurricane, tidal producer must have incurred the loss surge, tornado, and volcanic eruption. in the county where the eligible ad- [74 FR 46673, Sept. 11, 2009, as amended at 75 verse weather or eligible loss condition FR 19188, Apr. 14, 2010; 76 FR 54075, Aug. 31, occurred. The honeybee or farm-raised 2010] fish feed losses must be for feed that was intended as feed for the honeybees § 760.204 Eligible livestock, honeybees, or farm-raised fish that was damaged and farm-raised fish. or destroyed due to an eligible adverse (a) To be considered eligible live- weather or eligible loss condition, as stock for livestock feed losses and graz- determined by the Deputy Adminis- ing losses, livestock must meet all the trator, including, but not limited to, following conditions: earthquake, excessive wind, flood, hur- (1) Be alpacas, adult or non-adult ricane, tidal surge, tornado, volcanic dairy cattle, adult or non-adult beef eruption, and wildfire. cattle, adult or non-adult buffalo, adult (h) For honeybee colony or honeybee or non-adult beefalo, deer, elk, emus, hive losses to be considered eligible, equine, goats, llamas, poultry, rein- the honeybee colony or honeybee hive deer, sheep, or swine; producer must have incurred the loss (2) Be livestock that would normally in the county where the eligible ad- have been grazing the eligible grazing verse weather or eligible loss condition land or pastureland during the normal occurred. The honeybee colony or hon- grazing period for the specific type of eybee hive losses must be due to an eli- grazing land or pastureland for the gible adverse weather or eligible loss county; condition, as determined by the Deputy (3) Be livestock that is owned, cash- Administrator, including, but not lim- leased, purchased, under contract for ited to, earthquake, excessive wind, purchase, or been raised by a contract flood, hurricane, tornado, volcanic grower or an eligible livestock pro- eruption, and wildfire. To be eligible ducer, during the 60 days prior to the for a loss of honeybees due to colony beginning date of the eligible adverse collapse disorder, the eligible honeybee weather or eligible loss condition; producer must provide acceptable doc- (4) Be livestock that has been main- umentation to support that the loss tained for commercial use as part of was due to colony collapse disorder. the producer’s farming operation on Except for 2008 and 2009 honeybee the beginning date of the eligible ad- losses, acceptable documentation must verse weather or eligible loss condi- include an acceptable colony collapse tion; disorder certification by an inde- (5) Be livestock that has not been pendent third party as determined by produced and maintained for reasons the Deputy Administrator, plus any other than commercial use as part of a other documentation requested by farming operation; and FSA. For 2008 and 2009 honeybee losses (6) Be livestock that was not in a such an independent certification is feedlot, on the beginning date of the el- not required in all cases, but rather a igible adverse weather or eligible loss self-certification by the honeybee pro- condition, as a part of the normal busi- ducer as determined acceptable by the ness operation of the producer, as de- Deputy Administrator may be allowed termined by the Deputy Administrator. in addition to whatever other docu- (b) The eligible livestock types for mentation might be requested. feed losses and grazing losses are:

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(1) Adult beef cows or bulls, eligibility for payments will be cal- (2) Adult buffalo or beefalo cows or culated separately for each producer bulls, with respect to each category: (3) Adult dairy cows or bulls, (i) Adult beef bulls; (4) Alpacas, (ii) Adult beef cows; (5) Deer, (iii) Adult buffalo or beefalo bulls; (6) Elk, (iv) Adult buffalo or beefalo cows; (7) Emus, (v) Adult dairy bulls; (8) Equine, (vi) Adult dairy cows; (9) Goats, (vii) Alpacas; (10) Llamas, (viii) Chickens, broilers, pullets; (11) Non-adult beef cattle, (ix) Chickens, chicks; (12) Non-adult buffalo or beefalo, (x) Chickens, layers, roasters; (13) Non-adult dairy cattle, (xi) Deer; (14) Poultry, (xii) Ducks; (15) Reindeer, (xiii) Ducks, ducklings; (16) Sheep, and (xiv) Elk; (17) Swine; (xv) Emus; (c) Ineligible livestock for feed losses (xvi) Equine; and grazing losses include, but are not (xvii) Geese, goose; limited to: (xviii) Geese, gosling; (1) Livestock that were or would have (xix) Goats, bucks; been in a feedlot, on the beginning date (xx) Goats, nannies; of the eligible adverse weather or eligi- (xxi) Goats, kids; ble loss condition, as a part of the nor- (xxii) Llamas; mal business operation of the producer, (xxiii) Non-adult beef cattle; as determined by FSA; (xxiv) Non-adult buffalo or beefalo; (2) Yaks; (xxv) Non-adult dairy cattle; (3) Ostriches; (xxvi) Reindeer; (4) All beef and dairy cattle, and buffalo and beefalo that weighed less than (xxvii) Sheep, ewes; 500 pounds on the beginning date of the (xxviii) Sheep, lambs; eligible adverse weather or eligible loss (xxix) Sheep, rams; condition; (xxx) Swine, feeder pigs under 50 (5) Any wild free roaming livestock, pounds; including horses and deer; (xxxi) Swine, sows, boars, barrows, (6) Livestock produced or maintained gilts 50 to 150 pounds; for reasons other than commercial use (xxxii) Swine, sows, boars, barrows, as part of a farming operation, includ- gilts over 150 pounds; ing, but not limited to, livestock pro- (xxxiii) Turkeys, poults; and duced or maintained exclusively for (xxxiv) Turkeys, toms, fryers, and recreational purposes, such as: roasters. (i) Roping, (e) Under ELAP, ‘‘contract growers’’ (ii) Hunting, will only be deemed to include pro- (iii) Show, ducers of livestock, other than (iv) Pleasure, feedlots, whose income is dependent on (v) Use as pets, or the actual weight gain and survival of (vi) Consumption by owner. the livestock. For death losses for con- (d) For death losses for livestock tract growers to be eligible, the live- owners to be eligible, the livestock stock must meet all of the following must meet all of the following condi- conditions: tions: (1) Be poultry or swine, as defined in (1) Be alpacas, adult or non-adult § 760.202, and meet all the conditions in dairy cattle, beef cattle, beefalo, buf- paragraph (f) of this section. falo, deer, elk, emus, equine, goats, lla- (2) Be one of the following categories mas, poultry, reindeer, sheep, or swine, of animals for which calculations of and meet all the conditions in para- eligibility for payments will be cal- graph (f) of this section. culated separately for each contract (2) Be one of the following categories grower with respect to each category: of animals for which calculations of (i) Chickens, broilers, pullets;

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(ii) Chickens, layers, roasters; gible adverse weather or eligible loss (iii) Geese, goose; condition; (iv) Swine, boars, sows; (4) Been a honeybee colony for which (v) Swine, feeder pigs; the producer had an eligible loss of a (vi) Swine, lightweight barrows, honeybee colony, honeybee hive, or gilts; honeybee feed; the feed must have been (vii) Swine, sows, boars, barrows, intended as feed for honeybees. gilts; and (h) For fish to be eligible to generate (viii) Turkeys, toms, fryers, and payments under ELAP, the fish must roasters. be produced in a controlled environ- (f) For livestock death losses to be ment so to be considered ‘‘farm raised considered eligible livestock for the fish’’ as defined in this subpart, and the purpose of generating payments under farm-raised fish must: this subpart, livestock must meet all of (1) For feed losses: the following conditions: (i) Be an aquatic species that is prop- (1) They must have died: agated and reared in a controlled envi- (i) On or after the beginning date of ronment; the eligible loss condition; and (ii) Be maintained and harvested for (ii) On or after January 1, 2008, and commercial use as part of a farming no later than 60 calendar days from the operation; and ending date of the eligible loss condi- (iii) Be physically located in the tion, but before November 30, 2011; and county where the eligible adverse (iii) As a direct result of an eligible weather or eligible loss condition oc- loss condition that occurs on or after curred on the beginning date of the eli- January 1, 2008, and before October 1, gible adverse weather or eligible loss 2011; and condition. (iv) In the calendar year for which (2) For death losses: payment is being requested; and (i) Be bait fish or game fish that are (2) Been maintained for commercial propagated and reared in a controlled use as part of a farming operation on environment; the day the livestock died; and (ii) Been maintained for commercial (3) Before dying, not have been pro- use as part of a farming operation; and duced or maintained for reasons other (iii) Been physically located in the than commercial use as part of a farm- county where the eligible loss adverse ing operation, such non-eligible uses weather or eligible loss condition oc- being understood to include, but not be curred on the beginning date of the eli- limited to, any uses of wild free roam- gible adverse weather or eligible loss ing animals or use of the animals for condition. recreational purposes, such as pleasure, [74 FR 46673, Sept. 11, 2009, as amended at 76 hunting, roping, pets, or for show. FR 54075, Aug. 31, 2011] (g) For honeybee losses to be eligible, the honeybee colony must meet the fol- § 760.205 Eligible producers, owners, lowing conditions: and contract growers. (1) Been maintained for the purpose (a) To be considered an eligible live- of producing honey or pollination for stock producer for livestock feed losses commercial use in a farming operation and to receive payments, the partici- on the beginning date of the eligible pant must have owned, cash-leased, adverse weather or eligible loss condi- purchased, entered into a contract to tion; purchase, or been a contract grower of (2) Been physically located in the eligible livestock during the 60 days county where the eligible adverse prior to the beginning date of the eligi- weather or eligible loss condition oc- ble adverse weather or eligible loss curred on the beginning date of the eli- condition and must have had a loss gible adverse weather or eligible loss that is determined to be eligible as condition; specified in § 760.203(d), and the pro- (3) Been a honeybee colony in which ducer’s eligible livestock must have the participant has a risk in the honey been livestock that would normally production or pollination farming oper- have been grazing the eligible grazing ation on the beginning date of the eli- land or pastureland during the normal

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grazing period for the specific type of animal, the animal must be in one of grazing land or pastureland for the the categories specified in § 760.204(e), county as specified in paragraph and the contract grower must have (b)(1)(i) or (ii) of this section. had: (b) To be considered an eligible live- (i) A written agreement with the stock producer for grazing losses and owner of eligible livestock setting the to receive payments, the participant specific terms, conditions, and obliga- must have: tions of the parties involved regarding (1) Owned, cash-leased, purchased, en- the production of livestock; tered into a contract to purchase, or (ii) Control of the eligible livestock been a contract grower of eligible live- on the day the livestock died; and stock during the 60 days prior to the (iii) A risk of loss in the animal. beginning date of the eligible adverse (d) To be considered an eligible hon- weather or eligible loss condition, must eybee producer, a participant must have had a loss that is determined to have an interest and risk in an eligible be eligible as specified in § 760.203(e), honeybee colony, as specified in and the loss must have occurred on § 760.204(g), for the purpose of producing land that is: honey or pollination for commercial (i) Native or improved pastureland use as part of a farming operation and with permanent vegetative cover or must have had a loss that is deter- (ii) Planted to a crop planted specifi- mined to be eligible as specified in cally for the purpose of providing graz- § 760.203(g) or (h). ing for covered livestock; (e) To be considered an eligible farm- (2) Have had eligible livestock that raised fish producer for feed loss pur- would normally have been grazing the poses, the participant must have pro- eligible grazing land or pastureland duced eligible farm-raised fish, as spec- during the normal grazing period for ified in § 760.204(h)(1), with the intent to the specific type of grazing land or harvest for commercial use as part of a pastureland for the county as specified farming operation and must have had a in paragraph (b)(1)(i) or (ii) of this sec- loss that is determined to be eligible as tion; specified in § 760.203(g); (3) Provided for the eligible livestock (f) A producer seeking payments pastureland or grazing land, including must not be ineligible under the re- cash leased pastureland or grazing land strictions applicable to foreign persons for covered livestock that is physically contained in § 760.103(b) and must meet located in the county where the eligi- all other requirements of subpart B and ble adverse weather or loss condition other applicable USDA regulations. occurred during the normal grazing period for the county. § 760.206 Notice of loss and application (c) For livestock death losses to be process. eligible the producer must have had a (a) To apply for ELAP, the partici- loss that is determined to be eligible as pant that suffered eligible livestock, specified in § 760.203(f) and in addition honeybee, or farm-raised fish losses to other eligibility rules that may must submit, to the FSA administra- apply to be eligible as a: tive county office that maintains the (1) Livestock owner for the payment participant’s farm records for the agri- with respect to the death of an animal cultural operation, the following: under this subpart, the applicant must (1) A notice of loss to FSA as speci- have had legal ownership of the live- fied in § 760.207(a), stock on the day the livestock died and (2) A completed application as speci- under conditions in which no contract fied in § 760.207(b) for one or both of the grower could have been eligible for following: ELAP payment with respect to the ani- (i) For livestock feed, grazing and mal. Eligible types of animal cat- death losses, the participant must sub- egories for which losses can be cal- mit a completed Emergency Loss As- culated for an owner are specified in sistance for Livestock Application; § 760.204(d). (ii) For honeybee feed, honeybee col- (2) Contract grower for ELAP pay- ony, honeybee hive, or farm-raised fish ment with respect to the death of an feed or death losses, the participant

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must submit a completed Emergency (3) Private insurance documents, Loss Assistance for Farm-Raised Fish (4) Property tax records, or Honeybees Application; (5) Sales and purchase receipts, (3) A report of acreage; (6) State colony registration docu- (4) A copy of the participant’s grower mentation, and contract, if the participant is a con- (7) Chattel inspections. tract grower; and (d) For the loss of honeybee colonies (5) Other supporting documents re- due to colony collapse disorder, the quired for FSA to determine eligibility participant must also provide accept- of the participant, livestock, and loss. able documentation or certification (b) For livestock, honeybee, or farm- that the loss of the honeybee colony raised fish feed losses, participant must was due to colony collapse disorder. provide verifiable documentation of: Except for 2008 and 2009 honeybee col- (1) Purchased feed intended as feed ony losses, acceptable documentation for livestock, honeybees, or farm- must include an independent third raised fish that was lost, or additional feed purchased above normal quan- party certification determined accept- tities to sustain livestock, honeybees, able by the Deputy Administrator, plus and farm-raised fish for a short period such additional information and docu- of time until additional feed becomes mentation as may be requested. For available, due to an eligible adverse 2008 and 2009 honeybee colony losses a weather or eligible loss condition. To self-certification may be accepted by be considered acceptable documenta- FSA together with any additional in- tion, the participant must provide formation demanded by FSA as deter- original feed receipts and each feed re- mined appropriate by the Deputy Ad- ceipt must include the date of feed pur- ministrator. chase, name, address, and telephone (e) For livestock death losses, the number of feed vendor, type and quan- participant must provide evidence of tity of feed purchased, cost of feed pur- loss, current physical location of live- chased, and signature of feed vendor if stock in inventory, and physical loca- the vendor does not have a license to tion of claimed livestock at the time of conduct this type of transaction. death. The participant must provide: (2) Harvested feed intended as feed (1) Documentation listing the quan- for livestock, honeybees, or farm- tity and kind of livestock that died as raised fish that was lost due to an eli- a direct result of the eligible loss con- gible adverse weather or eligible loss dition during the calendar year for condition. Documentation may in- which payment is being requested, clude, but is not limited to, weight which must include: Purchase records, tickets, truck scale tickets, contem- veterinarian records, bank or other poraneous diaries used to verify that loan papers, rendering truck receipts, the crop was stored with the intent to Federal Emergency Management Agen- feed the crop to livestock, honeybees, cy records, National Guard records, or farm-raised fish, and custom harvest written contracts, production records, documents that clearly identify the Internal Revenue Service records, prop- amount of feed produced from the ap- erty tax records, private insurance doc- plicable acreage. Documentation must uments, or other similar verifiable doc- clearly identify the acreage from which uments as determined by FSA. the feed was produced. (2) Adequate proof that the death of (c) For eligible honeybee colony and the eligible livestock occurred as a di- honeybee hive losses and eligible farm- rect result of an eligible loss condition raised fish losses, the participant must in the calendar year for which payment also provide documentation of inven- is requested. tory on the beginning date of the eligi- (3) If adequate verifiable proof of ble adverse weather or loss condition death documentation is not available, and the ending inventory. Documenta- the participant must provide reliable tion may include, but is not limited to, records, in conjunction with verifiable any combination of the following: beginning and ending inventory (1) A report of acreage, records, as proof of death. Reliable (2) Loan records, records may include: Contemporaneous

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producer records, dairy herd improve- untary; however, without all required ment records, brand inspection records, data program, payment will not be ap- vaccination records, pictures, and proved or provided. other similar reliable documents, as [74 FR 46673, Sept. 11, 2009, as amended at 75 determined by FSA. FR 19188, Apr. 14, 2010] (4) Certification of livestock deaths by third parties will be acceptable for § 760.207 Notice of loss and application eligibility determination only if period. verifiable proof of death records or reli- (a) In addition to submitting an ap- able proof of death records in conjunc- plication for payment at the appro- tion with verifiable beginning and end- priate time, the participant that suf- ing inventory records are not available fered eligible livestock, honeybee, or and both of the following conditions farm-raised fish losses that create or are met: could create a claim for benefits must: (i) The livestock owner or livestock (1) For losses during calendar year contract grower, as applicable, cer- 2008 and in calendar year 2009 prior to tifies in writing: September 11, 2009, provide a notice of (A) That there is no other verifiable loss to FSA no later than December 10, or reliable documentation of death 2009; available; (2) For losses on or after September (B) The number of livestock, by cat- 11, 2009, the participant must provide a egory as determined by FSA, was in in- notice of loss to FSA within the earlier ventory at the time the applicable loss of: condition occurred; (i) 30 calendar days of when the loss (C) The physical location of the live- is apparent to the participant or stock, by category, in inventory when (ii) 30 calendar days after the end of the deaths occurred; and the calendar year in which the loss oc- (D) Any other details required for curred. FSA to determine the certification ac- (3) The participant must submit the ceptable; and notice of loss required in paragraphs (ii) The third party is an independent (a)(1) and (a)(2) of this section to the source who is not affiliated with the administrative FSA county office farming operation such as a hired hand (b) In addition to the notices of loss and is not a ‘‘family member,’’ defined required in paragraph (a) of this sec- as a person to whom a member in the tion, a participant must also submit a farming operation or their spouse is re- completed application for payment no lated as a lineal ancestor, lineal de- later than: scendant, sibling, spouse, or otherwise (1) 30 calendar days after the end of by marriage, and provides their tele- the calendar year in which the loss oc- phone number, address, and a written curred or statement containing specific details (2) December 10, 2009 for losses that about: occurred during 2008. (A) Their knowledge of the livestock deaths; § 760.208 Availability of funds. (B) Their affiliation with the live- By law, ‘‘up to’’ $50 million per year stock owner; for the years in question may be ap- (C) The accuracy of the deaths proved for use by the Secretary and ac- claimed by the livestock owner or con- cordingly, within that cap, the only tract grower including, but not limited funds that will be considered available to, the number and kind or type of the to pay claims will be that amount ap- participant’s livestock that died be- proved by the Secretary. Nothing in cause of the eligible loss condition; and these regulations will limit the ability (D) Any other information required of the Secretary to restrict the avail- for FSA to determine the certification ability of funds for the program as per- acceptable. mitted by the relevant legislation. (f) FSA will use the data furnished by Payments will not be made for claims the participant and the third party to arising out of a particular year until, determine eligibility for program pay- for all claims for that year, the time ment. Furnishing the data is vol- for applying for a payment has passed.

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In the event that, within the limits of (b) Payments for an eligible livestock the funding made available by the Sec- producer for grazing losses, except for retary within the statutory cap, ap- losses due to wildfires on non-Federal proval of eligible applications would land, will be calculated based on 60 per- result in expenditures in excess of the cent of the lesser of: amount available, FSA will prorate the (1) The total value of the feed cost for available funds by a national factor to all covered livestock owned by the eli- reduce the total expected payments to gible livestock producer based on the the amount made available by the Sec- number of days grazing was lost, not to retary. FSA will make payments based exceed 90 days of daily feed cost for all on the factor for the national rate de- covered livestock, or termined by FSA. FSA will prorate the (2) The total value of grazing lost for payments in such manner as it deter- all eligible livestock based on the nor- mines appropriate and reasonable. mal carrying capacity, as determined Claims that are unpaid or prorated for by the Secretary, of the eligible graz- a calendar year for any reason will not ing land of the eligible livestock pro- be carried forward for payment under ducer for the number of grazing days other funds for later years or other- lost, not to exceed 90 days of lost graz- wise, but will be considered, as to any ing. unpaid amount, void and nonpayable. (c) The total value of feed cost to be used in the calculation for paragraph § 760.209 Livestock payment calculations. (b)(1) of this section is based on the number of days grazing was lost and (a) Payments for an eligible livestock equals the product obtained by multi- producer will be calculated based on plying: losses for no more than 90 days during (1) A payment quantity equal to the the calendar year. Payment calcula- feed grain equivalent, as determined in tions for feed losses will be based on 60 paragraph (d) of this section; percent of the producer’s actual cost (2) A payment rate equal to the corn for: price per pound, as determined in para- (1) Livestock feed that was purchased graph (e) of this section; forage or feedstuffs intended for use as (3) The number of all covered live- feed for the participant’s eligible livestock owned by the eligible producer stock that was physically damaged or converted to an animal unit basis; destroyed due to the direct result of an eligible adverse weather or eligible loss (4) The number of days grazing was condition, as provided in § 760.203(d)(1); lost, not to exceed 90 calendar days (2) Livestock feed that was mechani- during the normal grazing period for cally harvested forage or feedstuffs in- the specific type of grazing land; and tended for use as feed for the partici- (5) The producer’s ownership share in pant’s eligible livestock that was phys- the livestock. ically damaged or destroyed after har- (d) The feed grain equivalent to be vest due to the direct result of an eligi- used in the calculation for paragraph ble adverse weather or eligible loss (c)(1) of this section equals, in the case condition, as provided in § 760.203(d)(2); of: (3) The additional cost incurred for (1) An adult beef cow, 15.7 pounds of providing or transporting livestock corn per day or feed to eligible livestock due to an eli- (2) Any other type or weight of live- gible adverse weather or eligible loss stock, an amount determined by the condition, as provided in § 760.203(d)(3); Secretary that represents the average or number of pounds of corn per day nec- (4) The additional cost of purchasing essary to feed that specific type of live- additional livestock feed above normal, stock. to maintain the eligible livestock dur- (e) The corn price per pound to be ing an eligible adverse weather or eligi- used in the calculation for paragraph ble loss condition until additional live- (c)(2) of this section equals the stock feed becomes available, as pro- quotient obtained by dividing: vided in § 760.203(d)(4). (1) The higher of:

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(i) The national average corn price death losses due to an eligible loss con- per bushel of corn for the 12-month pe- dition will be based on the following: riod immediately preceding March 1 of (1) Payments will be calculated by the calendar year for which payments multiplying: are calculated; or (i) The national payment rate for (ii) The national average corn price each livestock category times per bushel of corn for the 24-month pe- (ii) The number of eligible livestock riod immediately preceding March 1 of that died in each category as a result the calendar year for which payments of an eligible loss condition in excess of are calculated; by normal mortality, as determined in (2) 56. paragraph (d)(2) of this section; (f) The total value of grazing lost to (2) Normal mortality for each live- be used in the calculation for para- stock category as determined by FSA graph (b)(2) of this section equals the on a statewide basis using local data product obtained by multiplying: sources including, but not limited to, (1) A payment quantity equal to the State livestock organizations and the feed grain equivalent of 15.7 pounds of Cooperative Extension Service for the corn per day; State. (2) A payment rate equal to the corn (3) National payment rates to be used price per pound, as determined in para- in the calculation for paragraph (b)(1) graph (e) of this section; of this section for eligible livestock (3) The number of animal units the owners and eligible livestock contract eligible livestock producer’s grazing growers are: land or pastureland can sustain during (i) A national payment rate for eligi- the normal grazing period in the coun- ble livestock owners that is based on 75 ty for the specific type of grazing land percent of the average fair market or pastureland, in the absence of an eli- value of the applicable livestock as gible adverse weather or eligible loss computed using nationwide prices for condition, determined by dividing the: the previous calendar year unless some (i) Number of eligible grazing land or other price is approved by the Deputy pastureland acres of the specific type Administrator. of grazing land or pastureland by (ii) A national payment rate for eligi- (ii) The normal carrying capacity of ble livestock contract growers that is the specific type of eligible grazing based on 75 percent of the relevant av- land or pastureland; and erage income loss sustained by the con- (4) The number of days grazing was tract grower, with respect to the dead lost, not to exceed 90 calendar days livestock. during the normal grazing period for (i) Payments calculated in this sec- the specific type of grazing land. tion are subject to the adjustments and (g) Payments for an eligible livestock limits provided for in this part. producer for grazing losses due to a wildfire on non-Federal land will be § 760.210 Honeybee payment calcula- calculated by multiplying: tions. (1) The result of dividing: (a) An eligible honeybee producer (i) The number of acres of grazing may receive payments for honeybee land or pastureland acres affected by feed losses due to an eligible adverse the fire by weather or loss condition, as provided (ii) The normal carrying capacity of in § 760.203(g), based on 60 percent of the the specific type of eligible grazing producer’s actual cost for honeybee land or pastureland; times feed that was: (2) The daily value of grazing as cal- (1) Damaged or destroyed due to an culated by FSA under this section; eligible adverse weather or eligible loss times condition and (3) The number of days grazing was (2) Intended as feed for an eligible lost due to fire, not to exceed 180 cal- honeybee colony, as provided in endar days; times § 760.204(g); (4) 50 percent. (b) An eligible honeybee producer (h) Payments for an eligible live- may receive payments for honeybee stock producer for eligible livestock colony losses due to an eligible adverse

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weather or eligible loss condition, as (c) Payments calculated in this sec- provided in § 760.203(h), based on 60 per- tion or elsewhere with respect to ELAP cent of the average fair market value are subject to the adjustments and lim- for the number of honeybee colonies its provided for in this part and are that were damaged or destroyed due to also subject to the payment limita- an eligible adverse weather or eligible tions and average adjusted gross in- loss condition, as computed using na- come limitations that are contained in tionwide prices unless some other price subpart B. data is approved for use by the Deputy Administrator, for losses in excess of [74 FR 46673, Sept. 11, 2009, as amended at 75 FR 19189, Apr. 14, 2010] normal honeybee mortality, as determined by the Deputy Administrator. (c) An eligible honeybee producer Subpart D—Livestock Forage may receive payments for honeybee Disaster Program hive losses due to an eligible adverse weather or eligible loss condition, as SOURCE: 74 FR 46680, Sept. 11, 2009, unless provided in § 760.203(h), based on 60 per- otherwise noted. cent of the average fair market value for the number of honeybee hives that § 760.301 Applicability. were damaged or destroyed due to an (a) This subpart establishes the eligible adverse weather or eligible loss terms and conditions under which the condition, as computed using nation- Livestock Forage Disaster Program wide prices unless some other price (LFP) will be administered. data is approved for use by the Deputy (b) Eligible livestock producers will Administrator. be compensated for eligible grazing (d) Payments calculated in this sec- losses for covered livestock that occur tion are subject to the adjustments and due to a qualifying drought or fire that limits provided for in this part. occurs: [74 FR 46673, Sept. 11, 2009, as amended at 75 (1) On or after January 1, 2008, and FR 19188, Apr. 14, 2010] before October 1, 2011, and (2) In the calendar year for which § 760.211 Farm-raised fish payment benefits are being requested. calculations. (a) An eligible farm-raised fish pro- § 760.302 Definitions. ducer may receive payments for fish The following definitions apply to feed losses due to an eligible adverse this subpart and to the administration weather or eligible loss condition, as of LFP. The definitions in parts 718 and provided in § 760.203(g), based on 60 per- 1400 of this title also apply, except cent of the producer’s actual replace- where they conflict with the defini- ment cost for the fish feed that was: tions in this section. (1) Damaged or destroyed due to an Adult beef bull means a male beef eligible adverse weather or eligible loss breed bovine animal that was at least 2 condition and years old and used for breeding pur- (2) Intended as feed for the eligible poses on or before the beginning date of farm-raised fish, as provided in a qualifying drought or fire. § 760.204(h)(1). Adult beef cow means a female beef (b) An eligible producer of farm- breed bovine animal that had delivered raised game or sport fish may receive one or more offspring. A first-time bred payments for death losses of farm- beef heifer is also considered an adult raised fish due to an eligible adverse beef cow if it was pregnant on or before weather or eligible loss condition, as the beginning date of a qualifying provided in § 760.203(i), based on 60 per- drought or fire. cent of the average fair market value Adult buffalo and beefalo bull means a of the game fish or sport fish that died male animal of those breeds that was as a direct result of an eligible adverse at least 2 years old and used for breed- weather or eligible loss condition, as ing purposes on or before the beginning computed using nationwide prices un- date of a qualifying drought or fire. less some other price data is approved Adult buffalo and beefalo cow means a for use by the Deputy Administrator. female animal of those breeds that had

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delivered one or more offspring. A on the actual weight gain and survival first-time bred buffalo or beefalo heifer of the livestock. is also considered an adult buffalo or Equine animal means a domesticated beefalo cow if it was pregnant on or be- horse, mule, or donkey. fore the beginning date of a qualifying Farming operation means a business drought or fire. enterprise engaged in producing agri- Adult dairy bull means a male dairy cultural products. breed bovine animal at least 2 years old Federal Agency means, with respect used primarily for breeding dairy cows to the control of grazing land, an agen- on or before the beginning date of a cy of the Federal government that qualifying drought or fire. manages rangeland on which livestock Adult dairy cow means a female dairy is generally permitted to graze. For the breed bovine animal used for the pur- purposes of this section, it includes, pose of providing milk for human con- but is not limited to, the U.S. Depart- sumption that had delivered one or ment of the Interior (DOI) Bureau of more offspring. A first-time bred dairy Indian Affairs (BIA), DOI Bureau of heifer is also considered an adult dairy Land Management (BLM), and USDA cow if it was pregnant on or before the Forest Service (FS). beginning date of a qualifying drought Goat means a domesticated, rumi- or fire. nant mammal of the genus Capra, in- Agricultural operation means a farm- cluding Angora goats. ing operation. Non-adult beef cattle means a beef Application means the ‘‘Livestock breed bovine animal that weighed 500 Forage Disaster Program’’ form. pounds or more on or before the begin- Commercial use means used in the op- ning date of a qualifying drought or eration of a business activity engaged fire but that does not meet the defini- in as a means of livelihood for profit by tion of adult beef cow or bull. the eligible livestock producer. Non-adult buffalo or beefalo means an Contract means, with respect to con- animal of those breeds that weighed 500 tracts for the handling of livestock, a pounds or more on or before the begin- written agreement between a livestock ning date of a qualifying drought or owner and another individual or entity fire, but does not meet the definition of setting the specific terms, conditions, adult buffalo or beefalo cow or bull. and obligations of the parties involved Non-adult dairy cattle means a bovine regarding the production of livestock animal, of a breed used for the purpose or livestock products. of providing milk for human consump- Covered livestock means livestock of tion, that weighed 500 pounds or more an eligible livestock producer that, on or before the beginning date of a during the 60 days prior to the begin- qualifying drought or fire, but that ning date of a qualifying drought or does not meet the definition of adult fire, the eligible livestock producer dairy cow or bull. owned, leased, purchased, entered into Normal carrying capacity means, with a contract to purchase, was a contract respect to each type of grazing land or grower of, or sold or otherwise disposed pastureland in a county, the normal of due to a qualifying drought during carrying capacity that would be ex- the current production year. It in- pected from the grazing land or cludes livestock that the producer oth- pastureland for livestock during the erwise disposed of due to drought in normal grazing period in the county, in one or both of the two production years the absence of a drought or fire that di- immediately preceding the current pro- minishes the production of the grazing duction year as determined by the Sec- land or pastureland. retary. Notwithstanding the foregoing Normal grazing period means, with re- portions of this definition, covered spect to a county, the normal grazing livestock for ‘‘contract growers’’ will period during the calendar year with not include livestock in feedlots. respect to each specific type of grazing ‘‘Contract growers’’ under LFP will land or pastureland in the county only include producers of livestock not served by the applicable county com- in feedlots whose income is dependent mittee.

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Owner means one who had legal own- stock that rents or leases pastureland ership of the livestock for which bene- or grazing land owned by another per- fits are being requested during the 60 son on a rate-of-gain basis. (That is, days prior to the beginning of a quali- where the lease or rental agreement fying drought or fire. calls for payment based in whole or in Poultry means a domesticated chick- part on the amount of weight gained by en, turkey, duck, or goose. Poultry are the animals that use the pastureland further delineated by sex, age, and pur- or grazing land.) pose of production, as determined by (d) A producer seeking payment must FSA. not be ineligible for payments under Sheep means a domesticated, rumi- the restrictions applicable to foreign nant mammal of the genus Ovis. persons contained in § 760.103(b) and Swine means a domesticated omnivo- must meet all other requirements of rous pig, hog, or boar. Swine are fur- subpart B and other applicable USDA ther delineated by sex and weight, as regulations. determined by FSA. (e) If a contract grower is an eligible U.S. Drought Monitor is a system for livestock producer for covered live- classifying drought severity according stock, the owner of that livestock is to a range of abnormally dry to excep- not eligible for payment. tional drought. It is a collaborative ef- fort between Federal and academic § 760.304 Covered livestock. partners, produced on a weekly basis, (a) To be considered covered live- to synthesize multiple indices, out- stock for LFP payments, livestock looks, and drought impacts on a map must meet all the following conditions: and in narrative form. This synthesis (1) Be adult or non-adult beef cattle, of indices is reported by the National adult or non-adult beefalo, adult or Drought Mitigation Center at http:// non-adult buffalo, adult or non-adult www.drought.unl.edu/dm/monitor.html. dairy cattle, alpacas, deer, elk, emus, equine, goats, llamas, poultry, rein- § 760.303 Eligible livestock producer. deer, sheep, or swine; (a) To be considered an eligible live- (2) Be livestock that would normally stock producer, the eligible producer have been grazing the eligible grazing on a farm must: land or pastureland in the county: (1) During the 60 days prior to the be- (i) During the normal grazing period ginning date of a qualifying drought or for the specific type of grazing land or fire, own, cash or share lease, or be a pastureland for the county or contract grower of covered livestock or (ii) When the Federal agency prohib- (2) Provide pastureland or grazing ited the eligible livestock producer land for covered livestock, including from using the managed rangeland for cash-leased pastureland or grazing grazing due to a fire; land, that is: (3) Be livestock that the eligible live- (i) Physically located in a county af- stock producer: fected by a qualifying drought during (i) During the 60 days prior to the be- the normal grazing period for the coun- ginning date of a qualifying drought or ty or fire: (ii) Rangeland managed by a Federal (A) Owned, agency for which the otherwise eligible (B) Leased, livestock producer is prohibited by the (C) Purchased, Federal agency from grazing the nor- (D) Entered into a contract to pur- mal permitted livestock due to a quali- chase, or fying fire. (E) Was a contract grower of; or (b) The eligible livestock producer (ii) Sold or otherwise disposed of due must have certified that the livestock to qualifying drought during: producer has suffered a grazing loss due (A) The current production year or to a qualifying drought or fire to be eli- (B) 1 or both of the 2 production gible for LFP payments. years immediately preceding the cur- (c) An eligible livestock producer rent production year; does not include any owner, cash or (4) Been maintained for commercial share lessee, or contract grower of live- use as part of the producer’s farming

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operation on the beginning date of the (i) Roping, qualifying drought or fire; (ii) Hunting, (5) Not have been produced and main- (iii) Show, tained for reasons other than commer- (iv) Pleasure, cial use as part of a farming operation. (v) Use as pets, or Such excluded uses include, but are not (vi) Consumption by owner. limited to, any uses of wild free roam- [74 FR 46680, Sept. 11, 2009, as amended at 75 ing animals or use of the animals for FR 19189, Apr. 14, 2010] recreational purposes, such as pleasure, roping, hunting, pets, or for show; and § 760.305 Eligible grazing losses. (6) Not have been livestock that were (a) A grazing loss due to drought is or would have been in a feedlot, on the eligible for LFP only if the grazing loss beginning date of the qualifying for the covered livestock occurs on drought or fire, as a part of the normal land that: business operation of the eligible live- (1) Is native or improved pastureland stock producer, as determined by the with permanent vegetative cover or Secretary. (2) Is planted to a crop planted spe- (b) The covered livestock categories cifically for the purpose of providing are: grazing for covered livestock; and (1) Adult beef cows or bulls, (3) Is grazing land or pastureland (2) Adult buffalo or beefalo cows or that is owned or leased by the eligible bulls, livestock producer that is physically (3) Adult dairy cows or bulls, located in a county that is, during the (4) Alpacas, normal grazing period for the specific (5) Deer, type of grazing land or pastureland for (6) Elk, the county, rated by the U.S. Drought (7) Emu, Monitor as having a: (8) Equine, (i) D2 (severe drought) intensity in (9) Goats, any area of the county for at least 8 (10) Llamas, consecutive weeks during the normal (11) Non-adult beef cattle, grazing period for the specific type of (12) Non-adult buffalo or beefalo, grazing land or pastureland for the (13) Non-adult dairy cattle, county, as determined by the Sec- (14) Poultry, retary, or (15) Reindeer, (ii) D3 (extreme drought) or D4 (ex- (16) Sheep, and ceptional drought) intensity in any (17) Swine. area of the county at any time during (c) Livestock that are not covered in- the normal grazing period for the spe- clude, but are not limited to: cific type of grazing land or (1) Livestock that were or would have pastureland for the county, as deter- been in a feedlot, on the beginning date mined by the Secretary. (As specified of the qualifying drought or fire, as a elsewhere in this subpart, the amount part of the normal business operation of potential payment eligibility will be of the eligible livestock producer, as higher than under (a)(3)(i) of this sec- determined by the Secretary; tion where the D4 trigger applies or (2) Yaks; where the D3 condition as determined (3) Ostriches; by the Secretary lasts at least 4 weeks (4) All beef and dairy cattle, and buf- during the normal grazing period for falo and beefalo that weighed less than the specific type of grazing land or 500 pounds on the beginning date of the pastureland for the county.) qualifying drought or fire; (b) A grazing loss is not eligible for (5) Any wild free roaming livestock, LFP if the grazing loss due to drought including horses and deer; and on land used for haying or grazing (6) Livestock produced or maintained under the Conservation Reserve Pro- for reasons other than commercial use gram established under subchapter B of as part of a farming operation, includ- chapter 1 of subtitle D of title XII of ing, but not limited to, livestock pro- the Food Security Act of 1985 (16 U.S.C. duced or maintained for recreational 3831–3835a). purposes, such as: (c) A fire qualifies for LFP only if:

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(1) The grazing loss occurs on range- (6) Adequate proof, as determined by land that is managed by a Federal FSA that the grazing loss: agency and (i) Was for the covered livestock; (2) The eligible livestock producer is (ii) If the loss of grazing occurred as prohibited by the Federal agency from the result of a fire that the: grazing the normal permitted livestock (A) Loss was due to a fire and on the managed rangeland due to a (B) Participant was prohibited by the fire. Federal agency from grazing the nor- (d) An eligible livestock producer mal permitted livestock on the man- may be eligible for LFP payments only aged rangeland due to a fire; on those grazing lands incurring losses (iii) Occurred on or after January 1, for which the livestock producer: 2008, and before October 1, 2011; and (1) Meets the risk management pur- (iv) Occurred in the calendar year for chase requirements specified in which payments are being requested; § 760.104; or (7) Adequate proof, absent an appro- (2) Does not meet the risk manage- priate waiver (if there is a waiver, it ment purchase requirements specified itself must be documented by the pro- in § 760.104 because the risk manage- ducer), as determined by FSA, that the ment purchase requirement is waived participant had obtained, for the graz- according to §§ 760.105, 760.106, or ing land incurring the losses for which 760.107. assistance is being requested, one or both of the following: § 760.306 Application for payment. (i) A policy or plan of insurance under the Federal Crop Insurance Act (a) To apply for LFP, the participant (7 U.S.C. 1501–1524); or that suffered eligible grazing losses: (ii) Filed the required paperwork, and (1) During 2008, must submit a com- paid the administrative fee by the ap- pleted application for payment and re- plicable State filing deadline, for the quired supporting documentation to noninsured crop disaster assistance the administrative FSA county office program; no later than December 10, 2009 or (8) Any other supporting documenta- (2) During 2009 and later years, must tion as determined by FSA to be nec- submit a completed application for essary to make a determination of eli- payment and required supporting docu- gibility of the participant. Supporting mentation to the administrative FSA documents include, but are not limited county office no later than 30 calendar to: Verifiable purchase and sales days after the end of the calendar year records; grower contracts; veterinarian in which the grazing loss occurred. records; bank or other loan papers; ren- (b) A participant must also provide a dering truck receipts; Federal Emer- copy of the grower contract, if a con- gency Management Records; National tract grower, and other supporting doc- Guard records; written contracts; pro- uments required for determining eligi- duction records; private insurance doc- bility as an applicant at the time the uments; sales records; and similar doc- participant submits the completed ap- uments determined acceptable to FSA. plication for payment. Supporting doc- (c) Data furnished by the participant uments must include: will be used to determine eligibility for (1) Evidence of loss, program benefits. Furnishing the data (2) Current physical location of live- is voluntary; however, without all re- stock in inventory, quired data, program benefits will not (3) Evidence of meeting risk manage- be approved or provided. ment purchase requirements as specified in subpart B, § 760.307 Payment calculation. (4) Evidence that grazing land or (a) An eligible livestock producer pastureland is owned or leased, will be eligible to receive payments for (5) A report of acreage according to grazing losses for qualifying drought as part 718 of this chapter for the grazing specified in § 760.305(a) equal to one, lands incurring losses for which assist- two, or three times the monthly pay- ance is being requested under this sub- ment rate specified in paragraphs (e) or part; (f) of this section. Total LFP payments

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to an eligible livestock producer in a weeks during the normal grazing pe- calendar year for grazing losses due to riod for the specific type of grazing qualifying drought will not exceed land or pastureland for the county, or three monthly payments for the same is rated as having a D4 (exceptional livestock. Payments calculated in this drought) intensity in any area of the section or elsewhere with respect to county at any time during the normal LFP are subject to the adjustments grazing period for the specific type of and limits provided for in this part and grazing land or pastureland for the are also subject to the payment limita- county. tions and average adjusted gross in- (e) The monthly payment rate for come provisions that are contained in LFP for grazing losses due to a quali- subpart B. Payment may only be made fying drought, except as provided in to the extent that eligibility is specifi- paragraph (f) of this section, will be cally provided for in this subpart. equal to 60 percent of the lesser of: Hence, with respect to drought, pay- (1) The monthly feed cost for all cov- ments will be made only as a ‘‘one ered livestock owned or leased by the month’’ payment, a ‘‘two month’’ pay- eligible livestock producer, as deter- ment, or a ‘‘three month’’ payment mined in paragraph (g) of this section based on the provisions of paragraphs or (b), (c), and (d) of this section. (2) The monthly feed cost calculated (b) To be eligible to receive a one by using the normal carrying capacity month payment, that is a payment of the eligible grazing land of the eligi- equal to the monthly feed cost as de- ble livestock producer, as determined termined under paragraph (g) of this in paragraph (j) of this section. section, the eligible livestock producer (f) In the case of an eligible livestock must own or lease grazing land or producer that sold or otherwise dis- pastureland that is physically located posed of covered livestock due to a in a county that is rated by the U.S. qualifying drought in 1 or both of the 2 Drought Monitor as having at least a production years immediately pre- D2 severe drought (intensity) in any ceding the current production year, the area of the county for at least 8 con- payment rate is 80 percent of the secutive weeks during the normal graz- monthly payment rate calculated in ing period for the specific type of graz- paragraph (e) of this section. ing land or pastureland in the county. (g) The monthly feed cost for covered (c) To be eligible to receive a two livestock equals the product obtained month payment, that is a payment by multiplying: equal to twice the monthly feed cost as (1) 30 days; determined under paragraph (g) of this (2) A payment quantity equal to the section, the eligible livestock producer amount referred to in paragraph (h) of must own or lease grazing land or this section as the ‘‘feed grain equiva- pastureland that is physically located lent’’, as determined under paragraph in a county that is rated by the U.S. (h) of this section; and Drought Monitor as having at least a D3 (extreme drought) intensity in any (3) A payment rate equal to the corn area of the county at any time during price per pound, as determined in para- the normal grazing period for the spe- graph (i) of this section. cific type of grazing land or (h) The feed grain equivalent equals, pastureland for the county. in the case of: (d) To be eligible to receive a three (1) An adult beef cow, 15.7 pounds of month payment, that is a payment corn per day or equal to three times the monthly feed (2) In the case of any other type or cost as determined under paragraph (g) weight of covered livestock, an amount of this section, the eligible livestock determined by the Secretary that rep- producer must own or lease grazing resents the average number of pounds land or pastureland that is physically of corn per day necessary to feed that located in a county that is rated by the specific type of livestock. U.S. Drought Monitor as having at (i) The corn price per pound equals least a D3 (extreme drought) intensity the quotient obtained by dividing: in any area of the county for at least 4 (1) The higher of:

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(i) The national average corn price Federal lease of the eligible livestock per bushel for the 12-month period im- producer. mediately preceding March 1 of the calendar year for which LFP payment is Subpart E—Livestock Indemnity calculated or Program (ii) The national average corn price per bushel for the 24-month period immediately preceding March 1 of the cal- SOURCE: 74 FR 31575, July 2, 2009, unless otherwise noted. endar year for which LFP payment is calculated § 760.401 Applicability. (2) By 56. (j) The monthly feed cost using the (a) This subpart establishes the normal carrying capacity of the eligi- terms and conditions under which the ble grazing land equals the product ob- Livestock Indemnity Program (LIP) tained by multiplying: will be administered under Titles XII (1) 30 days; and XV of the 2008 Farm Bill (Pub. L. (2) A payment quantity equal to the 110–246). feed grain equivalent of 15.7 pounds of (b) Eligible livestock owners and con- corn per day; tract growers will be compensated in (3) A payment rate equal to the corn accordance with § 760.406 for eligible price per pound, as determined in para- livestock deaths in excess of normal graph (i) of this section; and mortality that occurred in the cal- (4) The number of animal units the endar year for which benefits are being eligible livestock producer’s grazing requested as a direct result of an eligi- land or pastureland can sustain during ble adverse weather event. An ‘‘eligible the normal grazing period in the coun- adverse weather event’’ is one, as de- ty for the specific type of grazing land termined by the Secretary, occurring or pastureland, in the absence of a in the program year that could and did, drought or fire, determined by dividing even when normal preventative or cor- the: rective measures were taken and good (i) Number of eligible grazing land or farming practices were followed, di- pastureland acres of the specific type rectly result in the death of livestock. of grazing land or pastureland by Because feed can be purchased or oth- (ii) The normal carrying capacity of erwise obtained in the event of a the specific type of eligible grazing drought, drought is not an eligible ad- land or pastureland as determined verse weather event except when an- under this subpart. thrax, resulting from drought, causes (k) An eligible livestock producer the death of eligible livestock. will be eligible to receive payments for grazing losses due to a fire as specified § 760.402 Definitions. in § 760.305(c): The following definitions apply to (1) For the period, subject to para- this subpart. The definitions in parts graph (l)(2) of this section: 718 and 1400 of this title also apply, ex- (i) Beginning on the date on which cept where they conflict with the defi- the Federal Agency prohibits the eligi- nitions in this section. ble livestock producer from using the Adult beef bull means a male beef managed rangeland for grazing and breed bovine animal that was at least 2 (ii) Ending on the earlier of the last years old and used for breeding pur- day of the Federal lease of the eligible poses before it died. livestock producer or the day that Adult beef cow means a female beef would make the period a 180 day period breed bovine animal that had delivered and one or more offspring before dying. A (2) For grazing losses that occur on first-time bred beef heifer is also con- not more than 180 days per calendar sidered an adult beef cow if it was preg- year. nant at the time it died. (3) For 50 percent of the monthly feed Adult buffalo and beefalo bull means a cost, as determined under § 760.308(g), male animal of those breeds that was pro-rated to a daily rate, for the total at least 2 years old and used for breed- number of livestock covered by the ing purposes before it died.

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Adult buffalo and beefalo cow means a Lamb means a sheep less than 1 year female animal of those breeds that had old. delivered one or more offspring before Livestock owner means one having dying. A first-time bred buffalo or beef- legal ownership of the livestock for alo heifer is also considered an adult which benefits are being requested on buffalo or beefalo cow if it was preg- the day such livestock died. nant at the time it died. Nanny means a female goat. Adult dairy bull means a male dairy Non-adult beef cattle means a beef breed bovine animal at least 2 years old breed bovine animal that does not meet used primarily for breeding dairy cows the definition of adult beef cow or bull. before it died. Non-adult beef cattle are further delin- Adult dairy cow means a female bo- eated by weight categories of either vine dairy breed animal used for the less than 400 pounds or 400 pounds or purpose of providing milk for human more at the time they died. consumption that had delivered one or Non-adult buffalo or beefalo means an more offspring before dying. A first- animal of those breeds that does not time bred dairy heifer is also consid- meet the definition of adult buffalo or ered an adult dairy cow if it was preg- beefalo cow or bull. Non-adult buffalo nant at the time it died. or beefalo are further delineated by Adverse weather means damaging weight categories of either less than weather events, including, but not lim- 400 pounds or 400 pounds or more at the ited to, hurricanes, floods, blizzards, time of death. disease, wildfires, extreme heat, and Non-adult dairy cattle means a dairy extreme cold. breed bovine animal, of a breed used for Agricultural operation means a farm- the purpose of providing milk for ing operation. human consumption, that does not Application means the ‘‘Livestock In- meet the definition of adult dairy cow demnity Program’’ form. or bull. Non-adult dairy cattle are fur- Buck means a male goat. ther delineated by weight categories of Commercial use means used in the op- either less than 400 pounds or 400 eration of a business activity engaged pounds or more at the time they died. in as a means of livelihood for profit by Normal mortality means the numerical the eligible producer. amount, computed by a percentage, as Contract means, with respect to con- established for the area by the FSA tracts for the handling of livestock, a State Committee, of expected livestock written agreement between a livestock deaths, by category, that normally owner and another individual or entity occur during a calendar year for a pro- setting the specific terms, conditions, ducer. and obligations of the parties involved Poultry means domesticated chick- regarding the production of livestock ens, turkeys, ducks, and geese. Poultry or livestock products. are further delineated by sex, age, and Deputy Administrator or DAFP means purpose of production as determined by the Deputy Administrator for Farm FSA. Programs, Farm Service Agency, U.S. Ram means a male sheep. Department of Agriculture or the des- Secretary means the Secretary of Ag- ignee. riculture or a designee of the Sec- Equine animal means a domesticated retary. horse, mule, or donkey. Sheep means a domesticated, rumi- Ewe means a female sheep. nant mammal of the genus Ovis. Sheep Farming operation means a business are further defined by sex (rams and enterprise engaged in producing agri- ewes) and age (lambs) for purposes of cultural products. dividing into categories for loss cal- FSA means the Farm Service Agency. culations. Goat means a domesticated, rumi- State committee, State office, county nant mammal of the genus Capra, in- committee, or county office means the re- cluding Angora goats. Goats are fur- spective FSA committee or office. ther defined by sex (bucks and nannies) Swine means a domesticated omnivo- and age (kids). rous pig, hog, or boar. Swine for pur- Kid means a goat less than 1 year old. poses of dividing into categories for

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loss calculations are further delineated (c) To be considered eligible livestock by sex and weight as determined by for the purpose of generating payments FSA. under this subpart, livestock must United States means all fifty States of meet all of the following conditions: the United States, the Commonwealth (1) Died as a direct result of an eligi- of Puerto Rico, the Virgin Islands, ble adverse weather event that oc- Guam, and the District of Columbia. curred on or after January 1, 2008, and before October 1, 2011; § 760.403 Eligible owners and contract (2) Died no later than 60 calendar growers. days from the ending date of the appli- (a) In addition to other eligibility cable adverse weather event, but before rules that may apply, to be eligible as November 30, 2011; a: (3) Died in the calendar year for (1) Livestock owner for benefits with which benefits are being requested; respect to the death of an animal under (4) Been maintained for commercial this subpart, the applicant must have use as part of a farming operation on had legal ownership of the eligible live- the day they died; and stock on the day the livestock died and (5) Before dying, not have been pro- under conditions in which no contract duced or maintained for reasons other grower could have been eligible for than commercial use as part of a farm- benefits with respect to the animal. El- ing operation, such non-eligible uses igible types of animal categories for being understood to include, but not be which losses can be calculated for an limited to, any uses of wild, free roam- owner are specified in § 760.404(a). ing animals or use of the animals for (2) Contract grower for benefits with recreational purposes, such as pleasure, respect to the death of an animal, the hunting, roping, pets, or for show. animal must be in one of the categories (d) The following categories of ani- specified on § 760.404(b), and the con- mals owned by a livestock owner are tract grower must have had eligible livestock and calculations of (i) A written agreement with the eligibility for payments will be cal- owner of eligible livestock setting the culated separately for each producer specific terms, conditions, and obliga- with respect to each category: tions of the parties involved regarding (1) Adult beef bulls; the production of livestock; (2) Adult beef cows; (ii) Control of the eligible livestock (3) Adult buffalo or beefalo bulls; on the day the livestock died; and (4) Adult buffalo or beefalo cows; (iii) A risk of loss in the animal. (5) Adult dairy bulls; (b) A producer seeking payment must (6) Adult dairy cows; not be ineligible under the restrictions (7) Alpacas; applicable to foreign persons contained (8) Chickens, broilers, pullets; in § 760.103(b) and must meet all other (9) Chickens, chicks; requirements of subpart B and other (10) Chickens, layers, roasters; applicable USDA regulations. (11) Deer; (12) Ducks; § 760.404 Eligible livestock. (13) Ducks, ducklings; (a) To be considered eligible live- (14) Elk; stock for livestock owners, the kind of (15) Emus; livestock must be alpacas, adult or (16) Equine; non-adult dairy cattle, beef cattle, buf- (17) Geese, goose; falo, beefalo, elk, emus, equine, llamas, (18) Geese, gosling; sheep, goats, swine, poultry, deer, or (19) Goats, bucks; reindeer and meet all the conditions in (20) Goats, nannies; paragraph (c) of this section. (21) Goats, kids; (b) To be considered eligible live- (22) Llamas; stock for contract growers, the kind of (23) Non-adult beef cattle; livestock must be poultry or swine as (24) Non-adult buffalo or beefalo; defined in § 760.402 and meet all the (25) Non-adult dairy cattle; conditions in paragraph (c) of this sec- (26) Reindeer; tion. (27) Sheep, ewes;

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(28) Sheep, lambs; completed application for payment no (29) Sheep, rams; later than (30) Swine, feeder pigs under 50 (1) 30 calendar days after the end of pounds; the calendar year in which the loss of (31) Swine, sows, boars, barrows, gilts livestock occurred or 50 to 150 pounds; (2) September 13, 2009 for losses dur- (32) Swine, sows, boars, barrows, gilts ing 2008. over 150 pounds; (c) Applicants must submit sup- (33) Turkeys, poults; and porting documentation with their ap- (34) Turkeys, toms, fryers, and roast- plication. For contract growers, the in- ers. formation must include a copy of the (e) The following categories of ani- grower contract and other documents mals are eligible livestock for contract establishing their status. In addition, growers and calculations of eligibility for all applicants, including contract for payments will be calculated sepa- growers, supporting documents must rately for each producer with respect to each category: show: (1) Chickens, broilers, pullets; (1) Evidence of loss, (2) Chickens, layers, roasters; (2) Current physical location of live- (3) Geese, goose; stock in inventory, (4) Swine, boars, sows; (3) Physical location of claimed live- (5) Swine, feeder pigs; stock at the time of death, and (6) Swine, lightweight barrows, gilts; (4) Inventory numbers and other in- (7) Swine, sows, boars, barrows, gilts; ventory information necessary to es- and tablish actual mortality as required by (8) Turkeys, toms, fryers, and roast- FSA. ers. (d) The participant must provide ade- [74 FR 31575, July 2, 2009, as amended at 76 quate proof that the death of the eligi- FR 54075, Aug. 31, 2011] ble livestock occurred as a direct result of an eligible adverse weather § 760.405 Application process. event in the calendar year for which (a) In addition to submitting an ap- benefits are requested. The quantity plication for payment at the appro- and kind of livestock that died as a di- priate time, a producer or contract rect result of the eligible adverse grower that suffered livestock losses weather event during the calendar year that create or could create a claim for for which benefits are being requested benefits must: may be documented by: purchase (1) For losses during 2008 and losses records; veterinarian records; bank or in 2009, prior to July 13, 2009, provide a other loan papers; rendering-plant notice of loss to FSA no later than truck receipts; Federal Emergency September 13, 2009. Management Agency records; National (2) For losses on or after July 13, 2009, Guard records; written contracts; pro- provide a notice of loss to FSA within duction records; Internal Revenue the earlier of: Service records; property tax records; (i) 30 calendar days of when the loss private insurance documents; and of livestock is apparent to the partici- other similar verifiable documents as pant or determined by FSA. (ii) 30 calendar days after the end of (e) If adequate verifiable proof of the calendar year in which the loss of death documentation is not available, livestock occurred. the participant may provide reliable (3) The participant must submit the records, in conjunction with verifiable notice of loss required in paragraphs beginning and ending inventory (a)(1) and (a)(2) to the FSA administra- records, as proof of death. Reliable tive county office that maintains the records may include contemporaneous participant’s farm records for the agri- producer records, dairy herd improve- cultural operation. ment records, brand inspection records, (b) In addition to the notices of loss vaccination records, pictures, and required in paragraph (a) of this sec- other similar reliable documents as de- tion, a participant must also submit a termined by FSA.

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(f) Certification of livestock deaths § 760.406 Payment calculation. by third parties may be accepted only (a) Under this subpart, separate pay- if verifiable proof of death records or ment rates for eligible livestock own- reliable proof of death records in con- ers and eligible livestock contract junction with verifiable beginning and growers are specified in paragraphs (b) ending inventory records are not avail- and (c) of this section, respectively. able and both of the following condi- Payments for LIP are calculated by tions are met: multiplying the national payment rate (1) The livestock owner or livestock for each livestock category by the contract grower, as applicable, cer- number of eligible livestock in excess tifies in writing: of normal mortality in each category (i) That there is no other verifiable that died as a result of an eligible ad- or reliable documentation of death verse weather event. Normal mortality available; for each livestock category will be de- (ii) The number of livestock, by cat- termined by FSA on a State-by-State egory identified in this subpart and by basis using local data sources includ- FSA were in inventory at the time the ing, but not limited to, State livestock applicable adverse weather event oc- organizations and the Cooperative Ex- curred; tension Service for the State. Adjust- (iii) The physical location of the live- ments will be applied as specified in stock, by category, in inventory when paragraph (d) of this section. the deaths occurred; and (b) The LIP national payment rate (iv) Other details required for FSA to for eligible livestock owners is based determine the certification acceptable; on 75 percent of the average fair mar- and ket value of the applicable livestock as (2) The third party is an independent computed using nationwide prices for source who is not affiliated with the the previous calendar year unless some farming operation such as a hired hand other price is approved by the Deputy and is not a ‘‘family member,’’ defined Administrator. as a person whom a member in the (c) The LIP national payment rate farming operation or their spouse is re- for eligible livestock contract growers lated as lineal ancestor, lineal descend- is based on 75 percent of the average in- ant, sibling, spouse, and provides their come loss sustained by the contract telephone number, address, and a writ- grower with respect to the dead live- ten statement containing specific de- stock. tails about: (d) The LIP payment calculated for (i) Their knowledge of the livestock eligible livestock contract growers will deaths; be reduced by the amount the partici- (ii) Their affiliation with the live- pant received from the party who con- stock owner; tracted with the producer to raise the (iii) The accuracy of the deaths livestock for the loss of income from claimed by the livestock owner or con- the dead livestock. tract grower including, but not limited to, the number and kind or type of the Subpart F—Tree Assistance participant’s livestock that died be- Program cause of the eligible adverse weather event; and SOURCE: 75 FR 25108, May 7, 2010, unless (iv) Other information required by otherwise noted. FSA to determine the certification acceptable. § 760.500 Applicability. (g) Data furnished by the participant (a) This subpart establishes the and the third party will be used to de- terms and conditions under which the termine eligibility for program bene- Tree Assistance Program (TAP) will be fits. Furnishing the data is voluntary; administered under Titles XII and XV however, without all required data proof the Food, Conservation, and Energy gram benefits will not be approved or Act of 2008 (Pub. L. 110–246, the 2008 provided. Farm Bill).

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(b) Eligible orchardists and nursery Lost means, with respect to the ex- tree growers will be compensated as tent of damage to a tree or other plant, specified in § 760.506 for eligible tree, that the plant is destroyed or the dam- bush, and vine losses in excess of 15 age is such that it would, as deter- percent mortality, or, where applica- mined by FSA, be more cost effective ble, 15 percent damage, adjusted for to replace the tree or other plant than normal mortality and normal damage, to leave it in its deteriorated, low-pro- that occurred in the calendar year for ducing state. which benefits are being requested and Natural disaster means plant disease, as a direct result of a natural disaster. insect infestation, drought, fire, freeze, flood, earthquake, lightning, or other § 760.501 Administration. natural occurrence of such magnitude The program will be administered as or severity so as to be considered disas- specified in § 760.102 and in this subpart. trous, as determined by the Deputy Ad- ministrator. § 760.502 Definitions. Normal damage means the percentage, The following definitions apply to as established for the area by the FSA this subpart. The definitions in parts State Committee, of trees, bushes, or 718 and 1400 of this title also apply, ex- vines in the individual stand that cept where they conflict with the defi- would normally be damaged during a nitions in this section. calendar year for a producer. Bush means, a low, branching, woody Normal mortality means percentage, as plant, from which at maturity of the established for the area by the FSA bush, an annual fruit or vegetable crop State Committee, of expected lost is produced for commercial purposes, trees, bushes, or vines in the individual such as a blueberry bush. The defini- stand that normally occurs during a tion does not cover plants that produce calendar year for a producer. This term a bush after the normal crop is har- refers to the number of whole trees, vested such as asparagus. bushes, or vines that are destroyed or Commercial use means used in the op- damaged beyond rehabilitation. Mor- eration of a business activity engaged tality does not include partial damage in as a means of livelihood for profit by such as lost tree limbs. the eligible producer. Seedling means an immature tree, County committee means the respective FSA committee. bush, or vine that was planted in the ground or other growing medium to County office means the FSA or U.S. grow a new tree, bush, or vine for com- Department of Agriculture (USDA) Service Center that is responsible for mercial purposes. servicing the farm on which the trees, Stand means a contiguous acreage of bushes, or vines are located. the same type of trees (including Cutting means a piece of a vine which Christmas trees, ornamental trees, was planted in the ground to propagate nursery trees, and potted trees), bushes a new vine for the commercial produc- (including shrubs), or vines. tion of fruit, such as grapes, kiwi fruit, State committee means the respective passion fruit, or similar fruit. FSA committee. Deputy Administrator or DAFP means Tree means a tall, woody plant hav- the Deputy Administrator for Farm ing comparatively great height, and a Programs, FSA, USDA, or the des- single trunk from which an annual ignee. crop is produced for commercial pur- Eligible nursery tree grower means a poses, such as a maple tree for syrup, person or legal entity that produces papaya tree, or orchard tree. Trees nursery, ornamental, fruit, nut, or used for pulp or timber are not consid- Christmas trees for commercial sale. ered eligible trees under this subpart. Eligible orchardist means a person or Vine means a perennial plant grown legal entity that produces annual crops under normal conditions from which an from trees, bushes, or vines for com- annual fruit crop is produced for commercial purposes. mercial market for human consump- FSA means the Farm Service Agency. tion, such as grape, kiwi, or passion

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fruit, and that has a flexible stem sup- loss of existing stock planted for com- ported by climbing, twining, or creep- mercial purposes) trees, bushes, or ing along a surface. Perennials that are vines for commercial purposes, or have normally propagated as annuals such a production history, for commercial as tomato plants, biennials such as the purposes, of planted or existing trees, plants that produce strawberries, and bushes, or vines; annuals such as pumpkins, squash, cu- (2) Have suffered eligible losses of eli- cumbers, watermelon, and other mel- gible trees, bushes, or vines occurring ons, are excluded from the term vine in between January 1, 2008, and Sep- this subpart. tember 30, 2011, as a result of a natural disaster or related condition; § 760.503 Eligible losses. (3) Meet the risk management pur- (a) To be considered an eligible loss chase requirement as specified in under this subpart: § 760.104 or the waiver requirements in (1) Eligible trees, bushes, or vines § 760.105 or § 760.107; and must have been lost or damaged as a (4) Have continuously owned the result of natural disaster as deter- stand from the time of the disaster mined by the Deputy Administrator; until the time that the TAP applica- (2) The individual stand must have tion is submitted. sustained a mortality loss or damage, (b) A new owner of an orchard or as the case may be, loss in excess of 15 nursery who does not meet the require- percent after adjustment for normal ments of paragraph (a) of this section mortality or damage; may receive TAP payments approved (3) The loss could not have been pre- for the previous owner of the orchard vented through reasonable and avail- or nursery and not paid to the previous able measures; and owner, if the previous owner of the or- (4) The trees, bushes, or vines, in the chard or nursery agrees to the succes- absence of a natural disaster, would sion in writing and if the new owner: not normally have required rehabilita- (1) Acquires ownership of trees, tion or replanting within the 12-month bushes, or vines for which benefits have period following the loss. been approved; (b) The damage or loss must be visi- (2) Agrees to complete all approved ble and obvious to the county com- practices that the original owner has mittee representative. If the damage is not completed; and no longer visible, the county com- (3) Otherwise meets and assumes full mittee may accept other evidence of responsibility for all provisions of this the loss as it determines is reasonable. part, including refund of payments (c) The county committee may re- made to the previous owner, if applica- quire information from a qualified ex- ble. pert, as determined by the county com- (c) A producer seeking payment must mittee, to determine extent of loss in not be ineligible under the restrictions the case of plant disease or insect in- applicable to citizenship and foreign festation. corporations contained in § 760.103(b) (d) The Deputy Administrator will and must meet all other requirements determine the types of trees, bushes, of subpart B of this part. and vines that are eligible. (d) Federal, State, and local govern- (e) An individual stand that did not ments and agencies and political sub- sustain a sufficient loss as specified in divisions thereof are not eligible for paragraph (a)(2) of this section is not payment under this subpart. eligible for payment, regardless of the amount of loss sustained. § 760.505 Application. (a) To apply for TAP, a producer that § 760.504 Eligible orchardists and suffered eligible tree, bush, or vine nursery tree growers. losses that occurred: (a) To be eligible for TAP payments, (1) During calendar years 2008, 2009, the eligible orchardist or nursery tree or 2010, prior to May 7, 2010, must pro- grower must: vide an application for payment and (1) Have planted, or be considered to supporting documentation to FSA no have planted (by purchase prior to the later than July 6, 2010.

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(2) On or after May 7, 2010, must pro- (1) For the cost of planting seedlings vide an application for payment and or cuttings, to replace lost trees, supporting documentation to FSA bushes, or vines, the lesser of: within 90 calendar days of the disaster (i) 70 percent of the actual cost of the event or date when the loss of trees, practice, or bushes, or vines is apparent to the pro- (ii) The amount calculated using ducer. rates established by the Deputy Ad- (b) The producer must submit the ap- ministrator for the practice. plication for payment within the time (2) For the cost of pruning, removal, specified in paragraph (a) of this sec- and other costs incurred for salvaging tion to the FSA administrative county damaged trees, bushes, or vines, or in office that maintains the producer’s the case of mortality, to prepare the farm records for the agricultural oper- land to replant trees, bushes, or vines, ation. the lesser of: (c) A complete application includes (i) 50 percent of the actual cost of the all of the following: practice, or (1) A completed application form pro- (ii) The amount calculated using vided by FSA; rates established by the Deputy Ad- (2) An acreage report for the farming ministrator for the practice. operation as specified in part 718, sub- (b) An orchardist or nursery tree part B, of this chapter; grower that did not plant the trees, (3) Subject to verification and a loss bushes, or vines, but has a production amount determined appropriate by the history for commercial purposes on county committee, a written estimate planted or existing trees and lost the of the number of trees, bushes, or vines trees, bushes, or vines as a result of a lost or damaged that is certified by the natural disaster, in excess of 15 percent producer or a qualified expert, includ- damage or mortality (adjusted for nor- ing the number of acres on which the mal damage or mortality), will be eli- loss occurred; and gible for the salvage, pruning, and land (4) Sufficient evidence of the loss to preparation payment calculation as allow the county committee to cal- specified in paragraph (a)(2) of this sec- culate whether an eligible loss oc- tion. To be eligible for the replanting curred. payment calculation as specified in (d) Before requests for payment will paragraph (a)(1) of this section, the or- be approved, the county committee: chardist or nursery grower who did not (1) Must make an eligibility deter- plant the stock must be a new owner mination based on a complete applica- who meets all of the requirements of tion for assistance; § 760.504(b) or be considered the owner (2) Must verify actual qualifying of the trees under provisions appearing losses and the number of acres involved elsewhere in this subpart. by on-site visual inspection of the land (c) Eligible costs for payment cal- and the trees, bushes, or vines; culation include costs for: (3) May request additional informa- (1) Seedlings or cuttings, for tree, tion and may consider all relevant in- bush, or vine replanting; formation in making its determina- (2) Site preparation and debris han- tion; and dling within normal horticultural prac- (4) Must verify actual costs to com- tices for the type of stand being re-es- plete the practices, as documented by tablished, and necessary to ensure suc- the producer. cessful plant survival; (3) Pruning, removal, and other costs § 760.506 Payment calculations. incurred to salvage damaged trees, (a) Payment to an eligible orchardist bushes, or vines, or, in the case of tree or nursery tree grower for the cost of mortality, to prepare the land to re- replanting or rehabilitating trees, plant trees, bushes, or vines; bushes, or vines damaged or lost due to (4) Chemicals and nutrients nec- a natural disaster, in excess of 15 per- essary for successful establishment; cent damage or mortality (adjusted for (5) Labor to plant seedlings or normal damage or mortality), will be cuttings as determined reasonable by calculated as follows: the county committee; and

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(6) Labor used to transplant existing tributable to replanting versus reha- seedlings established through natural bilitation is acceptable. In the event regeneration into a productive tree that the county committee determines stand. the documentation does not include ac- (d) The following costs are not eligi- ceptable detail of cost allocation, the ble: county committee will pro-rate pay- (1) Costs for fencing, irrigation, irri- ment based on physical inspection of gation equipment, protection of seed- the loss, damage, replanting, and reha- lings from wildlife, general improve- bilitation. ments, re-establishing structures, and (j) The cumulative total quantity of windscreens. acres planted to trees, bushes, or vines (2) Any other costs not listed in para- for which a producer may receive pay- graphs (c)(1) through (c)(6) of this sec- ment under this part for losses that oc- tion, unless specifically determined eli- curred between January 1, 2008, and gible by the Deputy Administrator. September 30, 2011, will not exceed 500 (e) Producers must provide the coun- acres. ty committee documentation of actual costs to complete the practices, such as § 760.507 Obligations of a participant. receipts for labor costs, equipment (a) Eligible orchardists and nursery rental, and purchases of seedlings or tree growers must execute all required cuttings. documents and complete the TAP-fund- (f) When lost stands are replanted, ed practice within 12 months of appli- the types planted may be different cation approval. from those originally planted. The al- (b) Eligible orchardist or nursery tree ternative types will be eligible for pay- growers must allow representatives of ment if the new types have the same FSA to visit the site for the purposes general end use, as determined and ap- of certifying compliance with TAP re- proved by the county committee. Pay- quirements. ments for alternative types will be (c) Producers who do not meet all ap- based on the lesser of rates established plicable requirements and obligations to plant the types actually lost or the will not be eligible for payment. cost to establish the alternative used. If the type of plantings, seedlings, or Subpart G—Supplemental Rev- cuttings differs significantly from the types lost, the costs may not be ap- enue Assistance Payments proved for payment. Program (g) When lost stands are replanted, the types planted may be planted on SOURCE: 74 FR 68490, Dec. 28, 2009, unless the same farm in a different location otherwise noted. than the lost stand. To be eligible for payment, site preparation costs for the § 760.601 Applicability. new location must not exceed the cost (a) This subpart specifies the terms to re-establish the original stand in the and conditions of the Supplemental original location. Revenue Assistance Payments Pro- (h) Eligible orchardists or nursery gram (SURE). tree growers may elect not to replant (b) Assistance in the form of SURE the entire eligible stand. If so, the payments is available for crop losses county committee will calculate pay- occurring in the crop year 2008 through ment based on the number of quali- September 30, 2011, caused by disaster fying trees, bushes, or vines actually as determined by the Secretary. Crop replanted. losses must have occurred in crop year (i) If a practice, such as site prepara- 2008 or subsequent crop years due to an tion, is needed to both replant and re- eligible disaster event that occurs on habilitate trees, bushes, or vines, the or before September 30, 2011. producer must document the expenses (c) SURE provides disaster assistance attributable to replanting versus reha- to eligible participants on farms in: bilitation. The county committee will (1) Disaster counties designated by determine whether the documentation the Secretary, which also includes of expenses detailing the amounts at- counties contiguous to such declared

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disaster counties, if the participant in- (i) 100 percent of the per unit price curred actual production losses of at for the crop used to calculate a crop in- least 10 percent to at least one crop of surance indemnity for the applicable economic significance on the farm; and crop insurance if a crop insurance in- (2) Any county, if the participant indemnity is triggered. If a price is not curred eligible total crop losses of available, then the price is 100 percent greater than or equal to 50 percent of of the NAP established price for the the normal production on the farm, as crop, times measured by revenue, including a loss (ii) The relevant per unit quantity of of at least 10 percent to at least one the crop produced on the farm, ad- crop of economic significance on the justed for quality losses, plus farm. (2) For each noninsurable crop on the (d) Subject to the provisions in sub- farm, excluding value loss crops, the part B of this part, SURE payments product obtained by multiplying: will be issued on 60 percent of the dif- (i) 100 percent of the per unit NAP es- ference between the SURE guarantee tablished price for the crop, times and total farm revenue, calculated using the National Average Market (ii) The relevant per unit quantity of Price as specified in this subpart. the crop produced on the farm, adjusted for quality losses, plus [74 FR 68490, Dec. 28, 2009, as amended at 76 (3) For value loss crops, the value of FR 54075, Aug. 31, 2011] inventory immediately after the dis- § 760.602 Definitions. aster. Adjusted actual production history (a) The following definitions apply to yield means a yield that will not be less all determinations made under this than the participant’s actual produc- subpart. tion history yield for a year and: (b) The terms defined in parts 718, 1400, and 1437 of this title and subpart (1) In the case of an eligible partici- B of this part will be applicable, except pant on a farm that has at least 4 years where those definitions conflict with of actual production history for an in- the definitions set forth in this section surable crop that are established other In the event that a definition in any of than pursuant to section 508(g)(4)(B) of those parts conflicts with the defini- FCIA, the average of the production tions set forth in this subpart, the defi- history for the eligible participant nitions in this subpart apply. Any addi- without regard to any yields estab- tional conflicts will be resolved by the lished under that section; Deputy Administrator. (2) In the case of an eligible partici- Actual crop acreage means all acreage pant on a farm that has less than 4 for each crop planted or intended to be years of actual production history for planted on the farm. an insurable crop, of which one or more Actual production history yield means were established pursuant to section the average of the actual production 508(g)(4)(B) of FCIA, the average of the history yields for each insurable or production history for the eligible par- noninsurable crop as calculated under ticipant as calculated without includ- the Federal Crop Insurance Act (FCIA) ing the lowest of the yields established (7 U.S.C. 1501–1524) or Noninsured Crop pursuant to section 508(g)(4)(B) of Disaster Assistance Program (NAP) as FCIA; or set forth in part 1437 of this title, re- (3) In all other cases, the actual pro- spectively. FSA will use the actual production history yield of the eligible duction history yield data provided for participant on a farm. crop insurance or NAP, if available, in Adjusted NAP yield means a yield that the SURE payment calculation. will not be less than the participant’s Actual production on the farm means, actual production history yield for unless the Deputy Administrator deter- NAP for a year and: mines that the context requires other- (1) In the case of an eligible partici- wise, the sum obtained by adding: pant on a farm that has at least 4 years (1) For each insurable crop on the of actual production history under farm, excluding value loss crops, the NAP that are not replacement yields, product obtained by multiplying: the average of the production history

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without regard to any replacement covered under crop insurance adminis- yields; tered in accordance with FCIA by (2) In the case of an eligible partici- RMA. pant on a farm that has less than 4 Crop of economic significance means years of actual production history any crop, as defined in this subpart under NAP that are not replacement that contributed, or, if the crop is not yields, the average of the production successfully produced, would have con- history without including the lowest of tributed or is expected to contribute, 5 replacement yields; or percent or more of the total expected (3) In all other cases, the actual pro- revenue from all of a participant’s duction history yield of the eligible crops on a farm. participant on the farm under NAP. Crop year means as determined by the Administrative fee means a fixed fee Deputy Administrator for a commodity payable by a participant for NAP or on a nationwide basis the calendar year crop insurance coverage, including buy-in fees, based on the number of in which the crop is normally har- covered crops under NAP or insurance vested or, where more than one cal- under FCIA. endar year is involved, the calendar Appraised production means produc- year in which the majority of the crop tion determined by FSA, or an insur- would have been harvested. For crops ance provider approved by FCIC, that on which catastrophic risk protection, was unharvested, but which was deter- as defined in this section, is available, mined to reflect the crop’s yield poten- the crop year will be as defined as in tial at the time of appraisal. An ap- such coverage. Crop year determina- praisal may be provided in terms of a tions by the Deputy Administrator will potential value of the crop. be final in all cases and, because these Aquaculture means the reproduction are matters of general applicability, and rearing of aquatic species as speci- will not considered by the Farm Serv- fied in part 1437 of this title in con- ice Agency to be subject to administra- trolled or selected environments. tive appeal. Brownout means a disruption of elec- Determined acreage or determined pro- trical or other similar power source for duction means the amount of acres or any reason. A brownout, although it production for a farm established by a may indirectly have an adverse effect representative of FSA by use of appro- on crops, is not a disaster for the pur- priate means such as official acreage, poses of this subpart and losses caused digitizing and planimetering areas on by a brownout will not be considered a the photograph or other photographic qualifying loss. image, or computations from scaled di- Catastrophic risk protection (CAT) mensions or ground measurements. In means the minimum level of coverage the case of production, any production offered by the Risk Management Agen- established by a representative of FSA cy (RMA) for crop insurance. CAT is through audit, review, measurement, further specified in parts 402 and 1437 of appraisal, or other acceptable means of this title. Counter-cyclical program payment yield determining production, as determined means the weighted average payment by FSA. yield established under part 1412, sub- Disaster means damaging weather, in- part C of this title. cluding drought, excessive moisture, County expected yield means an esti- hail, freeze, tornado, hurricane, ty- mated yield, expressed in a specific phoon, excessive wind, excessive heat, unit of measure equal to the average of weather-related saltwater intrusion, the most recent five years of official weather-related irrigation water ra- county yields established by FSA, ex- tioning, or any combination thereof cluding the years with the highest and and adverse natural occurrences such lowest yields, respectively. as earthquakes or volcanic eruptions. Crop insurance indemnity means, for Disaster includes a related condition the purpose of this subpart, the net that occurs as a result of the damaging payment to a participant excluding the weather or adverse natural occurrence value of the premium for crop losses and exacerbates the condition of the

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crop, such as disease and insect infesta- (1) For insurable crops, harvested is tion. It does not include brownouts or as defined according to the applicable power failures. crop insurance policy administered in Disaster county means a county in- accordance with FCIA by RMA; cluded in the geographic area covered (2) For NAP-covered single harvest by a qualifying natural disaster des- crops, a mature crop that has been re- ignation under section 321(a) of the moved from the field, either by hand or Consolidated Farm and Rural Develop- mechanically; ment Act (7 U.S.C. 1961(a)) and for (3) For noninsurable crops with po- SURE, the term ‘‘disaster county’’ also tential multiple harvests in one year or includes a county contiguous to a one crop harvested over multiple years, county declared a disaster by the Sec- that the participant has, by hand or retary; however, farms not in a dis- mechanically, removed at least one aster county may qualify under SURE mature crop from the field during the where for the relevant period, as deter- crop year; or mined under this subpart, the actual (4) For mechanically harvested non- production on a farm is less than 50 insurable crops, that the mature crop percent of the normal production on has been removed from the field and the farm. placed in or on a truck or other con- Double-cropping means, as determined veyance, except hay is considered har- by the Deputy Administrator on a re- vested when in the bale, whether regional basis, planting for harvest a moved from the field or not. Grazing of crop of a different commodity on the land will not be considered harvested same acres in cycle with another crop for the purpose of determining an in a 12-month period in an area where unharvested or prevented planting pay- such double-cropping is considered nor- ment factor. mal, or could be considered to be nor- Initial crop means a first crop planted mal, for all growers and under normal for which assistance is provided under growing conditions and normal agricul- this subpart. tural practices for the region and being Insurable crop means an agricultural able to repeat the same cycle in the commodity (excluding livestock) for following 12-month period. which the participant on a farm is eli- Farm means, for the purposes of de- gible to obtain a policy or plan of crop termining SURE eligibility, the en- insurance administered in accordance tirety of all crop acreage in all coun- with FCIA by RMA. Such a crop for ties that a producer planted or in- which the participant purchased insur- tended to be planted for harvest for ance from RMA is referred to as an in- normal commercial sale or on-farm sured crop. livestock feeding, including native and Insurance is available means when improved grassland intended for crop information is contained in RMA’s haying. In the case of aquaculture, ex- county actuarial documents for a par- cept for species for which an Aqua- ticular crop and a policy or plan of in- culture Grant Program payment was surance administered in accordance received, the term ‘‘farm’’ includes all with FCIA by RMA. If the Adjusted acreage used for all aquatic species Gross Revenue Plan of crop insurance being produced in all counties that the was the only plan of insurance avail- producer intended to harvest for nor- able for the crop in the county in the mal commercial sale. In the case of applicable crop year, insurance is con- honey, the term ‘‘farm’’ means all bees sidered not available for that crop. If and beehives in all counties that the an AGR plan or a pilot plan was the participant intended to be harvested only plan available, producers are not for a honey crop for normal commer- required to purchase it to meet the cial sale. risk management purchase require- FCIC means the Federal Crop Insur- ment, but it will satisfy the risk man- ance Corporation, a wholly owned Gov- agement purchase requirement. In that ernment Corporation operated and case, the other ways to meet the re- managed by USDA RMA. quirement would be, if all the require- FSA means the Farm Service Agency. ments of this subpart are met, a buy-in Harvested means: or NAP.

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Intended use means the original use method, at a correct depth, into a seed for which a crop or a commodity is bed that has been properly prepared for grown and produced. the planting method and production Marketing year means the 12 months practice normal to the area, as deter- immediately following the established mined by the FSA county committee. final harvest date of the crop of a com- Prevented planting means the inabil- modity, as determined by the Deputy ity to plant an eligible crop with prop- Administrator, and not an individual er equipment during the planting pe- participant’s final harvest date. FSA riod as a result of a disaster, as deter- will use the marketing year determined by FSA. All prevented planted mined by NASS, when available. cropland must meet conditions pro- Maximum average loss level means the vided in § 718.103 of this chapter. Addi- maximum level of crop loss that will be tionally, all insured crops must satisfy used in calculating SURE payments for the provisions of prevented planting a participant without reliable or provided in § 457.8 of this title. verifiable production records as defined Price election means, for an insured in this section. Loss levels are ex- crop, the crop insurance price elected pressed in either a percent of loss or a by the participant multiplied by the yield per acre, and reflect the amount percentage of price elected by the par- of production that a participant should ticipant. have produced considering the eligible Production means quantity of a crop disaster conditions in the area or coun- or commodity produced on the farm ex- ty, as determined by the FSA county pressed in a specific unit of measure in- committee in accordance with instruc- cluding, but not limited to, bushels or tions issued by the Deputy Adminis- pounds and used to determine the nor- trator. mal production on a farm. Normal pro- Multi-use crop means a crop intended duction for the whole farm is stated in for more than one use during the cal- terms of revenue, because different endar year such as grass harvested for crops may have different units of meas- seed, hay, or grazing. ure. Multiple planting means the planting for harvest of the same crop in more Qualifying loss means a 10 percent than one planting period in a crop year loss of at least one crop of economic on the same or different acreage. This significance due to disaster and on a is also sometimes referred in this rule farm that is either: as multiple cropping. (1) Located in a disaster county (a NAMP means the national average county for which a Secretarial disaster market price determined in accordance designation has been issued or in a with §§ 760.640 and 760.641. county contiguous to a county that has NASS is the USDA National Agricul- received a Secretarial disaster designa- tural Statistics Service. tion), or Noninsurable crop means a commer- (2) If not located in any disaster cially produced crop for which the eli- county or county contiguous to such a gible participants on a farm may ob- county, but has an overall loss greater tain coverage under NAP. than or equal to 50 percent of normal Noninsured Crop Disaster Assistance production on the farm (expected rev- Program or NAP means the FSA pro- enue for all crops on the farm) due to gram carried out under 7 U.S.C. 7333, as disaster. specified in part 1437 of this title. Qualifying natural disaster designation Normal production on the farm means, means a natural disaster designated by for purposes of the revenue calcula- the Secretary for production losses tions of this subpart, the sum of the ex- under section 321(a) of the Consolidated pected revenue for all crops on the Farm and Rural Development Act (7 farm. It is stated in terms of revenue, U.S.C. 1961(a)). because different crops may have dif- Related condition means, with respect ferent units of measure. to a disaster, a condition that causes Planted acreage means land in which deterioration of a crop such as insect seed, plants, or trees have been placed, infestation, plant disease, or aflatoxin appropriate for the crop and planting that is accelerated or exacerbated as a

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result of damaging weather, as deter- USDA means United States Depart- mined by the Deputy Administrator. ment of Agriculture. Reliable production records means evi- Value loss crop has the meaning speci- dence provided by the participant to fied in part 1437, subpart D of this title. the FSA county office that FSA deter- Unless otherwise announced by FSA, mines is adequate to substantiate the value loss crops for SURE include amount of production reported when aquaculture, floriculture, ornamental verifiable records are not available, in- nursery, Christmas trees, mushrooms, cluding copies of receipts, ledgers of in- ginseng, and turfgrass sod. come, income statements, deposit Verifiable production records mean evi- slips, register tapes, invoices for cus- dence that is used to substantiate the tom harvesting, records to verify pro- amount of production reported and duction costs, contemporaneous meas- that can be verified by FSA through an urements, truck scale tickets, and con- independent source. temporaneous diaries. When the term Volunteer stand means plants that ‘‘acceptable production records’’ is grow from seed residue or are indige- used in this rule, it may be either reli- nous or are not planted. Volunteer able or verifiable production records, plants may sprout from seeds left be- as defined in this section. hind during a harvest of a previous Reported acreage or production means crop; be unintentionally introduced to information obtained from the partici- land by wind, birds, or fish; or be inad- pant or the participant’s agent, on a vertently mixed into a crop’s growing form prescribed by FSA or through in- medium. surance records. RMA means the Risk Management § 760.610 Participant eligibility. Agency. (a) In addition to meeting the eligi- Salvage value means the dollar bility requirements of § 760.103, a par- amount or equivalent for the quantity ticipant must meet all of the following of the commodity that cannot be mar- conditions: keted or sold in any recognized market (1) All insurable crops on the partici- for the crop. pant’s farm must be covered by crop in- Secretary means the Secretary of Ag- surance administered by RMA in ac- riculture. cordance with FCIA, and all non- State means a State; the District of insured crops must be covered under Columbia, the Commonwealth of Puer- NAP, as specified in § 760.104, unless the to Rico, and any other territory or pos- participant meets the requirements in session of the United States. either § 760.105 or § 760.107. At the dis- Subsequent crop means any crop cretion of FSA, the equitable relief planted after an initial crop, on the provisions in § 760.106 may apply. same land, during the same crop year. (2) Crop losses must have occurred in SURE means the Supplemental Rev- crop year 2008 or subsequent crop years enue Assistance Payments Program. due to an eligible disaster event that Unit of measure means: occurred on or before September 30, (1) For all insurable crops, the FCIC 2011. established unit of measure; (i) For insured crops, the coverage (2) For all noninsurable crops, if period, as defined in the insurance pol- available, the established unit of meas- icy, must have begun on or before Sep- ure used for the NAP price and yield; tember 30, 2011; (3) For aquatic species, a standard (ii) For NAP crops, the coverage pe- unit of measure such as gallons, riod must have begun on or before Sep- pounds, inches or pieces, established by tember 30, 2011; and the FSA State committee for all aquat- (iii) The final planting date for that ic species or varieties; crop according to the Federal crop in- (4) For turfgrass sod, a square yard; surance or NAP policy must have been (5) For maple sap, a gallon; and on or before September 30, 2011. (6) For all other crops, the smallest (3) A qualifying loss as defined in unit of measure that lends itself to the § 760.602 must have occurred. greatest level of accuracy, as deter- (4) The participant must have been in mined by the FSA State committee. compliance with the Highly Erodible

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Land Conservation and Wetland Con- authority to sign for the deceased par- servation provisions of part 12 of this ticipant or dissolved entity must be title, for 2008 and subsequent crop provided. If a participant is now a dis- years through September 30, 2011, as solved general partnership or joint ven- applicable, and must not otherwise be ture, all members of the general part- barred from receiving benefits or pay- nership or joint venture at the time of ments under part 12 of this title or any dissolution or their duly authorized other law. representatives must sign the applica- (5) The participant must not be ineli- tion for payment. Eligibility of such gible or otherwise barred from the req- participant will be determined, as it is uisite risk management insurance pro- for other participants, based upon own- grams or NAP because of past viola- ership share and risk in producing the tions where those insurance programs crop. or NAP would otherwise be available absent such violations. (e) Participants receiving payments (6) The participant must have an en- under the Emergency Assistance for titlement to an ownership share of the Livestock, Honey Bees, and Farm- crop and also assume production and Raised Fish Program (ELAP) as speci- market risks associated with the pro- fied in subpart C of this part are not el- duction of the crop. In the event the igible to receive payments under SURE crop was planted but not produced, par- for the same loss. ticipants must have an ownership (f) Participants with a farming inter- share of the crop that would have been est in multiple counties who apply for produced. SURE payment based on a Secretarial (i) Any verbal or written contract disaster designation must have a 10 that precludes the grower from having percent loss of a crop of economic sig- an ownership share renders the grower nificance located in at least one dis- ineligible for payments under this sub- aster county, as defined in this subpart. part, to be eligible for SURE. (ii) Growers growing eligible crops under contract are not eligible partici- [74 FR 68490, Dec. 28, 2009, as amended at 76 pants under this subpart unless the FR 54075, Aug. 31, 2011] grower has an ownership share of the crop. § 760.611 Qualifying losses, eligible (b) In the event that a producer is de- causes and types of loss. termined not to be an eligible producer (a) Eligible causes of loss are disas- of a crop in accordance with this sec- ters which cause types of losses where tion, such crop will be disregarded in the crop could not be planted or where determining the producer’s production crop production was adversely affected or eligibility for payments under this in quantity, quality, or both. A quali- subpart. However, any insurance, farm fying loss, as defined in this subpart, program, or NAP payments received by must be the result of a disaster. the producer on such crop will count as (b) A loss will not be considered a farm revenue if that producer is an eli- qualifying loss if any of the following gible participant as a producer of other apply: crops. (1) The cause of the loss was not the (c) Participants may not receive pay- result of disaster; ments with respect to volunteer stands of crops. Volunteer stands will not be (2) The cause of loss was due to poor considered in either the calculation of management decisions or poor farming revenue or of the SURE guarantee. practices, as determined by the FSA (d) A deceased applicant or an appli- county committee on a case-by-case cant that is a dissolved entity that suf- basis; fered losses prior to the death or the (3) The cause of loss was due to fail- dissolution that met all eligibility cri- ure of the participant to re-seed or re- teria prior to death or dissolution may plant to the same crop in a county be eligible for payments for such losses where it is customary to re-seed or re- if an authorized representative signs plant after a loss before the final plant- the application for payment. Proof of ing date;

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(4) The cause of loss was due to water (2) Losses caused by improper storage contained or released by any govern- of honey; mental, public, or private dam or res- (3) Losses caused by bee feeding; ervoir project if an easement exists on (4) Losses caused by the application the acreage affected by the contain- of chemicals; ment or release of the water; (5) Losses caused by theft or fire not (5) The cause of loss was due to con- caused by a natural condition includ- ditions or events occurring outside of ing, but not limited to, arson or van- the applicable crop year growing sea- dalism; son; or (6) Losses caused by the movement of (6) The cause of loss was due to a bees by the participant or any other brownout. legal entity or person; (c) The following types of loss, re- (7) Losses caused by disease or pest gardless of whether they were the re- infestation of the colonies, unless ap- sult of a disaster, are not qualifying proved by the Secretary; losses: (8) Losses of income from pollinators; (1) Losses to crops not intended for or harvest in the applicable crop year; (9) Losses of equipment or facilities. (2) Losses of by-products resulting from processing or harvesting a crop, § 760.613 De minimis exception. such as, but not limited to, cotton (a) Participants seeking the de mini- seed, peanut shells, wheat or oat straw, mis exception to the risk management or corn stalks or stovers; purchase requirements of this subpart, (3) Losses to home gardens; or to a must certify: crop subject to a de minimis election (1) That a specific crop on the farm is according to § 760.613; not a crop of economic significance on (4) Losses of crops that were grazed the farm; or or, if prevented from being planted, had (2) That the administrative fee re- the intended use of grazing; or quired for the purchase of NAP cov- (5) Losses of first year seeding for erage for a crop exceeds 10 percent of forage production, or immature fruit the value of that coverage. crops. (b) To be eligible for a de minimis ex- (d) The following losses of orna- ception to the risk management pur- mental nursery stock are not a quali- chase requirement in § 760.104, the par- fying loss: ticipant must elect such exception at (1) Losses caused by a failure of the same time the participant files the power supply or brownout as defined in application for payment and the cer- § 760.602; tification of interests, as specified in (2) Losses caused by the inability to § 760.620, and specify the crop or crops market nursery stock as a result of for which the participant is requesting quarantine, boycott, or refusal of a such exception. buyer to accept production; (c) FSA will not consider the value of (3) Losses caused by fires that are not any crop elected under paragraph (b) of the result of disaster; this section in calculating both the (4) Losses affecting crops where SURE guarantee and the total farm weeds and other forms of undergrowth revenue. in the vicinity of nursery stock have (d) All provisions of this subpart not been controlled; or apply in the event a participant does (5) Losses caused by the collapse or not obtain an exception according to failure of buildings or structures. this section. (e) The following losses for honey, where the honey production by colo- § 760.614 Lack of access. nies or bees was diminished, are not a In addition to other provisions for qualifying loss: eligibility provided for in this part, the (1) Losses caused by the unavail- Deputy Administrator may provide as- ability of equipment or the collapse or sistance to participants who suffered failure of equipment or apparatus used 2008 production losses that meet the in the honey operation; lack of access provisions in 19 U.S.C.

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2497(g)(7)(F), where deemed appro- of a participant to provide an accurate priate, and consistent with the statu- certification of interests as part of the tory provision. Such a determination application may render the participant to exercise that authority, and the ineligible for any assistance under terms on which to exercise that au- SURE. thority, will be considered to be a de- (d) To elect a de minimis exception termination of general effect, not a to the risk management purchase re- ‘‘relief’’ determination, and will not be quirement for a crop or crops, the par- considered by the Farm Service Agency ticipant must meet the requirements to be appealable administratively ei- specified in § 760.613. When electing a de ther within FSA or before the National minimis exception, the participant Appeals Division. must specify the crops for which the exception is requested and provide the § 760.620 Time and method of applica- certification and supporting docu- tion and certification of interests. mentation for that exception at the (a) Each producer interested in ob- time the application and certification taining a SURE payment must file an of interests is filed with FSA. application for payment and provide an accurate certification of interests. The § 760.621 Requirement to report acre- application will be on a form pre- age and production. scribed by FSA and will require infor- (a) As a condition of eligibility for mation or certifications from the pro- payment under this subpart, partici- ducer regarding any other assistance, pants must submit an accurate and payment, or grant benefit the producer timely report of all cropland, non-crop- has received for any of the producer’s land, prevented planting, and subse- crops or interests on a farm as defined quent crop acreage and production for in this subpart; regardless of whether the farm in all counties. the crop or interest is covered in the (b) Acreage and production reports farm’s SURE guarantee according to that have been submitted to FSA for § 760.631. The producer’s certification of NAP or to RMA for crop insurance pur- interests will help FSA establish poses may satisfy the requirement of whether the producer is an eligible par- paragraph (a) of this section provided ticipant. that the participant’s certification of (b) Eligible participants with a quali- interests submitted as required by fying loss as defined in this subpart § 760.620 corresponds to the report re- must submit an application for pay- quirements in paragraph (a) of this sec- ment and certification of interests by tion, as determined by the FSA county March 1 of the calendar year that is committee. two years after the relevant cor- (c) Reports of production submitted responding calendar year for the crop for NAP or FCIA purposes must satisfy year which benefits are sought to be el- the requirements of NAP or FCIA, as igible for payment (for example, the applicable. In all other cases, in order final date to submit an application for for production reports or appraisals to a SURE payment for the 2009 crop year be considered acceptable for SURE, will be March 1, 2011). Producers who production reports and appraisals must do not submit the application by that meet the requirements set forth in part date will not be eligible for payment. 1437 of this title. (c) To the extent available and prac- (d) In any case where production re- ticable, FSA will assist participants ports or an appraisal is not acceptable, with information regarding their inter- maximum loss provisions apply as ests in a farm, as of the date of certifi- specified in § 760.637. cation, based on information already available to FSA from various sources. § 760.622 Incorrect or false producer However, the participant is solely reproduction evidence. sponsible for providing an accurate cer- (a) If production evidence, including tification from which FSA can deter- but not limited to acreage and produc- mine the participant’s farm interests tion reports, provided by a participant for the purposes of this program. As de- is false or incorrect, as determined by termined appropriate by FSA, failure the FSA county committee at any time

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after an application for payment is (iv) The coverage level elected by the made, the FSA county committee will participant. If a coverage level was not determine whether: elected or a participant is eligible as (1) The participant submitting the specified in § 760.105, § 760.106, or production evidence acted in good faith § 760.107, a coverage level of 50 percent or took action to defeat the purposes of will be used in the calculation. the program, such that the information (2) For each noninsurable crop on a provided was intentionally false or in- farm except for value loss crops, 120 correct. percent of the product obtained by (2) The same false, incorrect, or unac- multiplying: ceptable production evidence was sub- (i) 100 percent of the NAP established mitted for payment(s) under crop in- price for the crop; surance or NAP, and if so, for NAP cov- (ii) The payment acres determined ered crops, make any NAP program ad- according to § 760.632; justments according to § 1437.15 of this (iii) The SURE yield calculated ac- title. cording to § 760.638; and (b) If the FSA county committee de- (iv) 50 percent. termines that the production evidence (3) The guarantee for value loss crops submitted is false, incorrect, or unac- as calculated according to § 760.634. ceptable, and the participant who sub- (4) In the case of an insurable crop mitted the evidence did not act in good for which crop insurance provides for faith or took action to defeat the pur- an adjustment in the guarantee liabil- poses of the program, the provisions of ity, or indemnity, such as in the case § 760.109, including a denial of future of prevented planting, that adjustment program benefits, will apply. The Dep- will be used in determining the guar- uty Administrator may take further antee for the insurable crop. action, including, but not limited to, making further payment reductions or (5) In the case of a noninsurable crop requiring refunds or taking other legal for which NAP provides for an adjust- action. ment in the level of assistance, such as (c) If the FSA county committee de- in the case of unharvested crops, that termines that the production evidence adjustment will be used for deter- is false, incorrect, or unacceptable, but mining the guarantee for the noninsur- the participant who submitted the evi- able crop. dence acted in good faith, payment (b) Those participants who are eligi- may be adjusted and a refund may be ble according to § 760.105, § 760.106, or required. § 760.107 who do not have crop insurance or NAP coverage will have their SURE § 760.631 SURE guarantee calculation. guarantee calculated based on cata- (a) Except as otherwise provided in strophic risk protection or NAP cov- this part, the SURE guarantee for a erage available for those crops. farm is the sum obtained by adding the (c) FSA will not include in the SURE dollar amounts calculated in para- guarantee the value of any crop that graphs (a)(1) through (a)(3) of this sec- has a de minimis exception, according tion. to § 760.613. (1) For each insurable crop on the (d) For crops where coverage may farm except for value loss crops, 115 exist under both crop insurance and percent of the product obtained by NAP, such as for pasture, rangeland, multiplying together: and forage, adjustments to the guar- (i) The price election. If a price elec- antee will be the product obtained by tion was not made or a participant is multiplying the county expected yield eligible as specified in §§ 760.105, 760.106, for that crop times: or 760.107, then the percentage of price (1) 115 percent; will be 55 percent of the NAP estab- (2) 100 percent of the NAP established lished price; price; (ii) The payment acres determined (3) The payment acres determined ac- according to § 760.632; cording to § 760.632; (iii) The SURE yield as calculated ac- (4) The SURE yield calculated according to § 760.638; and cording to § 760.638; and

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(5) The coverage level elected by the part 1437 of this title and all other pro- participant. visions of this subpart are satisfied. (e) Participants who do not have a (f) Provisions of part 718 of this title SURE yield as specified in § 760.638 will specifying what is considered pre- have a yield determined for them by vented planting and how it must be the Deputy Administrator. documented and reported will apply to (f) The SURE guarantee may not be this payment acreage for SURE. greater than 90 percent of the sum of (g) Subject to the provisions of this the expected revenue for each of the subpart, the FSA county committee crops on a farm, as determined by the will: Deputy Administrator. (1) Use the most accurate data available when determining planted and pre- § 760.632 Payment acres. vented planted acres; and (a) Payment acres as calculated in (2) Disregard acreage of a crop pro- this section are used in determining duced on land that is not eligible for both total farm revenue and the SURE crop insurance or NAP. guarantee for a farm. Payment acreage (h) For any crop acreage for which will be calculated using the lesser of crop insurance or NAP coverage is can- the reported or determined acres shown celed, those acres will no longer be con- to have been planted or prevented from sidered the initial crop and will, there- being planted to a crop. fore, no longer be eligible for SURE. (b) Initial crop acreage will be the (i) Notwithstanding any other provi- payment acreage for SURE, unless the sions of these or other applicable regu- provisions for subsequent crops in this lations that relate to tolerance in part section are met. Subsequently planted 718 of this title, if a farm has a crop or prevented planted acre acreage is that has both FSA and RMA acreage considered acreage for SURE only if for insured crops, payment acres for the provisions of this section are met. the SURE guarantee calculation will All plantings of an annual or biennial be based on acres for which an indem- crop are considered the same as a nity was received if RMA acres do not planting of an initial crop in tropical differ from FSA acres by more than the regions as defined in part 1437, subpart larger of 5 percent or 10 acres not to ex- F, of this title. ceed 50 acres. If the difference between (c) In cases where there is double FSA and RMA acres is more than the cropped acreage, each crop may be in- larger of 5 percent or 10 acres not to excluded in the acreage for SURE only if ceed 50 acres, then the payment acres the specific crops are either insured for the SURE guarantee will be cal- crops eligible for double cropping ac- culated using RMA acres. In that case, cording to RMA or approved by the the participant will be notified of the FSA State committee as eligible dou- discrepancy and that refunds of un- ble cropping practices in accordance earned payments may be required after with procedures approved by the Dep- FSA and RMA reconcile acreage data. uty Administrator. (d) Except for insured crops, partici- § 760.633 2008 SURE guarantee calculation. pants with double cropped acreage not meeting the criteria in paragraph (c) of (a) For a participant who is eligible this section may have such acreage in- due to the 2008 buy-in waiver for risk cluded in the acreage for SURE on management purchase under the provi- more than one crop only if the partici- sions of § 760.105(c), the SURE guar- pant submits verifiable records estab- antee for their farm for the 2008 crop lishing a history of carrying out a suc- will be calculated according to § 760.631, cessful double cropping practice on the or according to § 760.634 for value loss specific crops for which payment is re- crops, with the exception that the: quested. (1) Price election in § 760.631(a)(1)(i) is (e) Participants having multiple 100 percent of the NAP established plantings may have each planting in- price for the crop; cluded in the SURE guarantee only if (2) Coverage level in § 760.631(a)(1)(iv) the planting meets the requirements of is 70 percent; and

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(3) The percent specified in will not be eligible for SURE assistance § 760.631(a)(2)(iv) is 70 percent instead of on those species for which a grant ben- 50 percent; and efit was received under the Aqua- (4) Coverage level used in culture Grant Program for feed losses § 760.634(a)(1)(ii) is 70 percent; and associated with that species. (5) The percent specified in (c) In the case of an insurable value § 760.634(a)(2)(ii) is 70 percent instead of loss crop for which crop insurance pro- 50 percent. vides for an adjustment in the guar- (b) For those 2008 crops that meet the antee, liability, or indemnity, such as requirements of §§ 760.104, 760.105(a), in the case of inventory exceeding peak 760.106, or 760.107, the SURE guarantee inventory value, the adjustment will be will be the higher of: used in determining the SURE guar- (1) The guarantee calculated accord- antee for the insurable crop. ing to § 760.631, or according to § 760.634 (d) In the case of a noninsurable for value loss crops, with the exception value loss crop for which NAP provides that the percent specified in for an adjustment in the level of assist- §§ 760.631(a)(1) and 760.634(a)(1) will be ance, such as in the case of 120 percent instead of 115 percent; unharvested field grown inventory, the (2) The guarantee calculated accord- adjustment will be used in determining ing to § 760.631, or according to § 760.634 the SURE guarantee for the noninsur- for value loss crops, will be used with able crop. the exception that the: (i) Price election in § 760.631(a)(1)(i) is § 760.635 Total farm revenue. 100 percent of the NAP established (a) For the purpose of SURE payment price for the crop; and calculation, total farm revenue will (ii) Coverage level in equal the sum obtained by adding the §§ 760.631(a)(1)(iv) and 760.634(a)(1)(ii) amounts calculated in paragraphs (a)(1) will be 70 percent; and through (a)(12) of this section. (iii) The percent specified in (1) The estimated actual value for §§ 760.631(a)(2)(iv) and 760.634(a)(2)(ii) each crop produced on a farm, except will be 70 percent instead of 50 percent. for value loss crops, which equals the § 760.634 SURE guarantee for value product obtained by multiplying: loss crops. (i) The actual production of the pay- (a) The SURE guarantee for value ment acres for each crop on a farm for loss crops will be the sum of the purposes of determining losses under amounts calculated in paragraphs (a)(1) FCIA or NAP; and and (a)(2) of this section, except as oth- (ii) NAMP, as calculated for the mar- erwise specified. keting year as specified in § 760.640 and (1) For each insurable crop on the as adjusted if required as specified in farm, 115 percent of the product ob- § 760.641. tained by multiplying: (2) The estimated actual value for (i) The value of inventory imme- each value loss crop produced on a diately prior to disaster, and farm that equals the value of inventory (ii) The coverage level elected by the immediately after disaster. participant. If a coverage level was not (3) 15 percent of the amount of any elected or a participant is eligible as direct payments made to the partici- specified in §§ 760.106 or 760.107, a cov- pant under part 1412 of this title. erage level of 27.5 percent will be used (4) The total amount of any counter- in the calculation. cyclical and average crop revenue elec- (2) For each noninsurable crop on the tion payments made to the participant farm, 120 percent of the product ob- under part 1412 of this title. tained by multiplying: (5) The total amount of any loan defi- (i) The value of inventory imme- ciency payments, marketing loan diately prior to a disaster, and gains, and marketing certificate gains (ii) 50 percent. made to the participant under parts (b) Aquaculture participants who re- 1421 and 1434 of this title. ceived assistance under the Aqua- (6) The amount of payments for pre- culture Grant Program (Pub. L. 111–5) vented planting.

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(7) The amount of crop insurance in- able, then the price is 100 percent of demnities. the NAP established price for the crop, (8) The amount of NAP payments re- and ceived. (b) For each noninsurable crop, ex- (9) The value of any guaranteed pay- cept value loss crops, the product ob- ments made to a participant in lieu of tained by multiplying production pursuant to an agreement (1) The SURE yield as specified in or contract, if the crop is included in § 760.638; the SURE guarantee. (2) The payment acres as specified in (10) Salvage value for any crops § 760.632; and salvaged. (3) 100 percent of the NAP price. (11) The value of any other disaster (c) For each value loss crop, the assistance payments provided by the value of inventory immediately prior Federal Government for the same loss to the disaster. for which the eligible participant applied for SURE. § 760.637 Determination of production. (12) For crops for which the eligible (a) Except for value loss crops, pro- participant received a waiver under the duction for the purposes of this part in- provisions of § 760.105(c) or obtained re- cludes all harvested, appraised, and as- lief according to § 760.106, the value designed production for the payment termined by FSA based on what the acres determined according to § 760.632. participant would have received, irre- (b) The FSA county committee will spective of any other provision, if NAP use the best available data to deter- or crop insurance coverage had been mine production, including RMA and obtained. NAP loss records and yields for insured (b) Sale of plant parts or by-products, and noninsured crops. such as straw, will not be counted as (c) The production of any eligible farm revenue. crop harvested more than once in a (c) For value loss crops: crop year will include the total har- (1) Other inventory on hand or mar- vested production from all harvests. keted at some time other than imme- (d) Crop production losses occurring diately prior to and immediately after in tropical regions, as defined in part the disaster event are irrelevant for 1437, subpart F of this chapter, will be revenue purposes and will not be count- based on a crop year beginning on Jan- ed as revenue for SURE. uary 1 and ending on December 31 of (2) Revenue will not be adjusted for the same calendar year. All crop har- market loss. vests in tropical regions that take (3) Quality losses will not be consid- place between those dates will be con- ered in determining revenue. sidered a single crop. (4) In no case will market price de- (e) Any record of an appraisal of crop clines in value loss crops, due to any production conducted by RMA or FSA cause, be considered in the calculation through a certified loss adjustor will be of payments for those crops. used if available. Unharvested appraised production will be included in § 760.636 Expected revenue. the calculation of revenue under The expected revenue for each crop SURE. If the unharvested appraised on a farm is: crop is subsequently harvested for the (a) For each insurable crop, except original intended use, the larger of the value loss crops, the product obtained actual or appraised production will be by multiplying: used to determine payment. (1) The SURE yield as specified in (1) If no appraisal is available, the § 760.638; participant is required to submit (2) The payment acres as specified in verifiable or reliable production evi- § 760.632; and dence. (3) 100 percent of the price for the (2) If the participant does not have crop used to calculate a crop insurance verifiable or reliable production evi- indemnity for an applicable policy of dence, the FSA county committee will insurance if a crop insurance indem- use the higher of the participant’s crop nity is triggered. If a price is not avail- certification or the maximum average

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loss level to determine the partici- whether or not records reflect this pro- pant’s crop production losses. duction; (f) Production will be adjusted based (4) Providing the information in a on a whole grain equivalent, as estab- manner that can be easily understood lished by FSA, for all crops with an in- by the FSA county committee; and tended use of grain, but harvested as (5) Providing supporting documenta- silage, cobbage, or hay, cracked, rolled, tion if the FSA county committee has or crimped. reason to question the disaster event (g) For crops sold in a market that is or that all production has been taken not a recognized market for that crop into account. and has no established county expected yield and NAMP, the quantity of such (k) The participant must supply crops will not be considered produc- verifiable or reliable production tion; rather, 100 percent of the salvage records to substantiate production to value will be included in the revenue the FSA county committee. If the eli- calculation. gible crop was sold or otherwise dis- (h) Production from different coun- posed of through commercial channels, ties that is commingled on the farm be- acceptable production records include: fore it was a matter of record and can- Commercial receipts; settlement not be separated by using records or sheets; warehouse ledger sheets or load other means acceptable to FSA will summaries; or appraisal information have the NAMP prorated to each re- from a loss adjuster acceptable to FSA. spective county by FSA. Commingled If the eligible crop was farm-stored, production may be attributed to the sold, fed to livestock, or disposed of by applicable county, if the participant means other than commercial chan- made the location of production of a nels, acceptable production records for crop a matter of record before commin- these purposes include: Truck scale gling, if the participant does either of tickets; appraisal information from a the following: loss adjuster acceptable to FSA; con- (1) Provides copies of verifiable docu- temporaneous reliable diaries; or other ments showing that production of the documentary evidence, such as con- crop was purchased, acquired, or other- temporaneous reliable measurements. wise obtained from the farm in that Determinations of reliability with re- county; or spect to this paragraph will take into (2) Had the farm’s production in that county measured in a manner accept- account, as appropriate, the ability of able to the FSA county committee. the agency to verify the evidence as (i) The FSA county committee will well as the similarity of the evidence assign production for the purpose of to reports or data received by FSA for NAMP for the farm if the FSA county the crop or similar crops. Other factors committee determines that the partici- deemed relevant may also be taken pant failed to provide verifiable or reli- into account. able production records. (l) If no verifiable or reliable produc- (j) If RMA loss records are not avail- tion records are available, the FSA able, or if the FSA county committee county committee will use the higher determines that the RMA loss records of the participant’s certification or the as reported by the insured participant maximum average loss level to deter- appear to be questionable or incom- mine production. plete, or if the FSA county committee (m) Participants must provide all makes inquiry, then participants are records for any production of a crop responsible for: that is grown with an arrangement, (1) Retaining and providing, when re- agreement, or contract for guaranteed quired, the best available verifiable payment. and reliable production records avail- (n) FSA may verify the production able for the crops; (2) Summarizing all the production evidence submitted with records on file evidence; at the warehouse, gin, or other entity (3) Accounting for the total amount that received or may have received the of production for the crop on a farm, reported production.

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§ 760.638 Determination of SURE yield. § 760.640 National average market price. (a) Except for value loss crops as specified in § 760.634, a SURE yield will (a) The Deputy Administrator will be determined for each crop, type, and establish the National Average Market intended use on a farm, using the high- Price (NAMP) using the best sources er of the participant’s weighted: available, as determined by the Deputy (1) Adjusted actual production his- Administrator, which may include, but tory yield as determined in paragraph are not limited to, data from NASS, Cooperative Extension Service, Agri- (b) of this section; or cultural Marketing Service, crop insur- (2) Counter-cyclical yield as deter- ance, and NAP. mined in paragraph (c) of this section. (b) NAMP may be adjusted by the (b) The adjusted actual production FSA State committee, in accordance history yield, as defined in § 760.602, with instructions issued by the Deputy will be weighted by the applicable crop Administrator and as specified in year total planted and prevented plant- § 760.641, to recognize average quality ed acres, by crop, type, and intended loss factors that are reflected in the use for each county. RMA data will be market by county or part of a county. used for calculating the SURE yield for (c) With respect to a crop for which insured crops. an eligible participant on a farm re- (c) The counter-cyclical yield for a ceives assistance under NAP, the crop on a SURE farm will be weighted NAMP will not exceed the price of the in such manner as FSA deems fit tak- crop established under NAP. ing into account a desire for a con- (d) To the extent practicable, the sistent system and FSA’s ability to NAMP will be established on a har- make timely yield determinations. vested basis without the inclusion of (d) Participants who do not purchase transportation, storage, processing, crop insurance or NAP coverage, but marketing, or other post-harvest ex- who are otherwise eligible for payment, penses, as determined by FSA. will have a SURE yield determined by (e) NAMP may be adjusted by the the FSA county committee as follows: FSA State committee, as authorized by (1) A weighted yield, based on planted The Deputy Administrator, to reflect regional variations in price consistent and prevented planted acres, the loca- with those prices established under the tion county, crop type, and intended FCIA or NAP. use, will be determined at 65 percent of the county expected yield for each § 760.641 Adjustments made to NAMP crop. to reflect loss of quality. (2) The SURE yield will be the higher (a) The Deputy Administrator will of the yield calculated using the meth- authorize FSA county committees, od in paragraph (d)(1) of this section or with FSA State committee concur- 65 percent of the weighted counter-cy- rence, to adjust NAMP for a county or clical yield as determined in paragraph part of a county: (c) of this section. (1) To reflect the average quality dis- (e) For those participants with crop counts applied to the local or regional insurance but without an adjusted ac- market price of a crop due to a reduc- tual production history yield, a SURE tion in the intrinsic characteristics of yield will be determined by the appli- the production resulting from adverse cable FSA county committee. This weather, as determined annually by paragraph will apply in the case where the State office of the FSA; or the insurance policy does not require (2) To account for a crop for which an actual production history yield, or the value is reduced due to excess where a participant has no production moisture resulting from a disaster re- history. lated condition. (3) For adjustments specified in para- [74 FR 68490, Dec. 28, 2009, as amended at 75 graphs (a)(1) and (a)(2) of this section, FR 19189, Apr. 14, 2010] an adjustment factor that represents the regional or local price received for

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the crop in the county will be cal- SOURCE: 75 FR 65428, Oct. 25, 2010, unless culated by the FSA State committee. otherwise noted. The adjustment factor will be based on the average actual market price com- § 760.701 Applicability. pared to NAMP. (a) This subpart specifies the eligi- (b) For adjustments made under bility requirements and payment cal- paragraph (a) of this section, partici- culations for the Crop Assistance Pro- pants must provide verifiable evidence gram (CAP), which will be adminis- of actual or appraised production, tered using funds authorized by Sec- clearly indicating an average loss of tion 32 of the Agricultural Adjustment value caused by poor quality or exces- Act of 1935 (7 U.S.C. 612c, as amended). sive moisture that meets or exceeds (b) CAP, within the limits of the the quality adjustment for the county funds made available by the Secretary or part of a county established in para- for this program, is intended to help re- graph (a)(3) of this section to be eligi- establish purchasing power to pro- ble to receive the quality-adjusted ducers of long grain rice, medium or NAMP as part of their SURE payment short grain rice, upland cotton, soy- calculation. In order to be considered beans, and sweet potatoes who suffered at all for the purpose of quality adjust- a five percent or greater loss in the 2009 ments, the verifiable evidence of pro- crop year due to disaster. duction must itself detail the extent of (c) Only producers who have a share the quality loss for a specific quantity. in a farm located in a disaster county With regard to test evidence, in addi- (a county that is the primary county tion to meeting all the requirements of that is the subject of a Secretarial dis- this section, tests must have been completed by January 1 of the year fol- aster designation for 2009 crop year due lowing harvest. to excessive moisture and related conditions, as determined by FSA) are eli- § 760.650 Calculating SURE. gible for CAP benefits. (a) Subject to the provision of this § 760.702 Definitions. subpart, SURE payments for crop losses in crop year 2008 and subsequent The following definitions apply to crop years will be calculated as the CAP. The definitions in parts 718, 760, amount equal to 60 percent of the dif- and 1400 of this title also apply, except ference between: where they conflict with the defini- (1) The SURE guarantee, as specified tions in this section. in § 760.631, § 760.633 or § 760.634 of this Acceptable production records means subpart, and verifiable or reliable production (2) The total farm revenue, as speci- records deemed acceptable by FSA. fied in § 760.635. Application means the CAP applica- (b) In addition to the other provi- tion form. sions of this subpart and subpart B of Application period means the 45-day this part, SURE payments may be ad- period established by the Deputy Ad- justed downward as necessary to insure ministrator for producers on farms in compliance with the payment limita- disaster counties to apply for CAP that tions in subpart B and to insure that ends December 9, 2010. payments do not exceed the maximum Approved yield means the amount of amount specified in § 760.108(a)(1) or production per acre, computed in ac- (b)(1) or otherwise exceed the perceived cordance with FCIC’s Actual Produc- intent of 19 U.S.C. 2497(j). Such adjust- tion History (APH) Program at part ments can include, but are not limited 400, subpart G of this title or, for crops to, adjustments to insure that there is not included under part 400, subpart G no duplication of benefits as specified of this title, the yield used to deter- in § 760.108(c). mine the guarantee. For crops covered under NAP, the approved yield is estab- Subpart H—Crop Assistance lished according to part 1437 of this Program title. Considered planted means acreage ap- AUTHORITY: 7 U.S.C. 612c. proved as prevented planted or failed in

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accordance with § 718.103 of this chap- acres of the crop for the farm. Expected ter. production may be used to assist pro- Crop means the reported or deter- ducers in determining whether the pro- mined 2009 crop year planted and con- ducer has a crop or crops that suffered sidered planted acres of long grain rice, a qualifying loss of five percent and to medium or short grain rice, upland cot- determine whether that crop is eligible ton, soybean, or sweet potatoes as re- for CAP benefits. flected on 2009 crop year form FSA–578, Historic yield means, for a producer on Report of Acreage, for a producer in a a farm, the higher of the county aver- disaster county as of October 22, 2010. age yield or the producer’s approved Subsequent crops, replacement crops, yields for eligible crops on the farm. reseeded crops, and replanted crops are (1) An insured producer’s yield will be not eligible crops under this part and the higher of the county average yield no revision of the Report of Acreage listed or the approved federal crop in- that would increase an eligibility for surance APH, for the disaster year. payment will be permitted to produce (2) A NAP producer’s yield will be the that effect. higher of the county average yield or Crop year means for 2009: NAP approved yield for the disaster (1) For insurable crops, the crop year year. as defined according to the applicable Replacement crop means the planting crop insurance policy; or approved prevented planting of any (2) For NAP covered crops, the crop crop for harvest following the failed year as provided in part 1437 of this planting or prevented planting of a title. crop of long grain rice, medium or Disaster means excessive moisture or short grain rice, upland cotton, soy- related condition, resulting from any beans, or sweet potatoes not in a recog- of the following: flood, flash flooding, nized double-cropping sequence. Re- excessive rain, moisture, humidity, se- placement crops are not eligible for vere storms, thunderstorms, ground CAP. saturation or standing water, hail, win- Reseeded or replanted crop means the ter storms, ice storms, snow, blizzard, second planting of a crop of long grain hurricane, typhoons, tropical storms, rice, medium or short grain rice, up- and cold wet weather. A disaster does land cotton, soybeans, or sweet pota- not include brownouts or power fail- toes on the same acreage after the first ures. planting of that same crop that failed. Disaster county means a county included in the geographic area covered § 760.703 Producer eligibility require- by a qualifying natural disaster des- ments. ignation under section 321(a) of the (a) A producer must meet all of the Consolidated Farm and Rural Develop- requirements in this subpart to be eli- ment Act (7 U.S.C. 1961(a)). For CAP, gible for a CAP payment. the term ‘‘disaster county’’ is limited (b) To be eligible, a producer must be to those primary counties declared a an individual or entity who is entitled disaster by the Secretary for excessive to an ownership share of an eligible moisture or a related condition, which crop and who has the production and are limited to designations based on market risks associated with the agri- any of the following: flood, flash flood- cultural production of the crop on a ing, excessive rain, moisture, humid- farm. An eligible producer must be a: ity, severe storms, thunderstorms, (1) Citizen of the United States; ground saturation or standing water, (2) Resident alien, which for purposes hail, winter storms, ice storms, snow, of this subpart means ‘‘lawful alien’’ as blizzard, hurricane, typhoons, tropical defined in 7 CFR part 1400; storms, and cold wet weather. (3) Partnership of citizens of the Expected production means, for a pro- United States; or ducer on a farm who attempts to deter- (4) Corporation, limited liability cor- mine what the producer might produce poration, or other farm organizational for an eligible crop on a farm, the his- structure organized under State law. toric yield multiplied by the producer’s (c) To be eligible, a producer must share of planted and considered planted have:

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(1) Produced a 2009 crop year planted quantity losses, producers need to or considered planted long grain rice, apply a standard similar to the historic medium or short grain rice, upland cot- yield provisions used under previous ad ton, soybean, or sweet potato crop in a hoc disaster programs. Those provi- 2009 eligible disaster county, and sions provided that a historic yield was (2) Suffered a five percent or greater the higher of a county average yield or loss in an eligible disaster county in a producer’s approved yield. Thus, if an 2009. A list of the disaster counties for applicant is determining whether a CAP is available on the FSA Web site farm has a crop that suffered a loss of and at FSA county offices. five percent or greater on the farm’s planted and considered planted acre- § 760.704 Time and method of applica- age, the applicant could compare the tion. amount successfully produced in 2009 (a) To request a CAP payment, the from those planted and considered producer must submit a CAP applica- planted acres to what the participant tion on the form designated by FSA to expected to produce from that acreage the FSA county office responsible for using either the county average yield administration of the farm. (which may be obtained from FSA by (b) Producers submitting an applica- request) or based on analysis of ap- tion for a crop must certify that they proved actual production history yields suffered a five percent or greater loss that may exist for producers of the of the crop on the farm in a disaster crop on the farm. county and that they have documenta- (g) Unless otherwise determined nec- tion to support that certification as re- essary by FSA, producers will not be quired in § 760.713. required to submit documentation of (c) Once submitted by a producer, the farm crop production or loss at time of application is considered to contain in- application. FSA’s decision not to re- formation and certifications of and quire proof, documentation, or evi- pertaining to the producer’s crop and dence in support of any application at farm regardless of who entered the in- time of application is not to be con- formation on the application. strued as a determination of a pro- (d) Producers requesting benefits ducer’s eligibility. under CAP must certify the accuracy (h) Producers who apply are required and truthfulness of the information to retain documentation in support of provided in the application as well as their application for three years after with any documentation that may be the date of application in accordance provided with the application or docu- with § 760.713. mentation that will be provided to FSA (i) The application submitted in ac- in substantiation of the application. cordance with this section is not con- All certifications and information are sidered valid and complete for issuance subject to verification by FSA. of payment under this part unless FSA (e) Producers applying for CAP must determines all the applicable eligi- certify that they have an eligible own- bility provisions have been satisfied ership share interest in the 2009 crop and the producer has submitted all the acreage that sustained a five percent or required forms. In addition to the com- greater loss. The determination and pleted, certified application form, if certification by a producer that a crop the information for the following forms suffered the requisite five percent or or certifications is not on file in the greater farm crop loss is the expected FSA county office or is not current for quantity of production of the crop less 2009, the producer must also submit: the actual production of the crop. (1) Farm operating plan for indi- (f) In the event that the producer vidual or legal entity; does not submit documentation in re- (2) Average adjusted gross income sponse to any request of FSA to sup- statement for 2009; and port the producer’s application or doc- (3) Highly erodible land conservation umentation furnished does not show a (HELC) and wetland conservation cer- crop loss of at least five percent as tification. claimed, the application for that crop (j) Application approval and payment will be disapproved in its entirety. For by FSA does not relieve a producer

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from having to submit any form, dence and providing the information in records, or documentation required, a manner that can be understood by but not filed at the time of application the county committee. or payment, according to paragraph (h) (c) Any producer receiving payment of this section. under this subpart agrees to maintain any books, records, and accounts sup- § 760.705 Payment rates and calculation of payments. porting any information or certification made according to this part for (a) CAP payments will be calculated 3 years after the end of the year fol- by multiplying the total number of re- lowing application. ported or determined acres of an eligible crop by the per acre payment rate (d) Producers receiving payments or for that crop. Payment rates are as fol- any other person who furnishes such lows: information to FSA must permit FSA (1) Long grain rice, $31.93 per acre; or authorized representatives of USDA (2) Medium or short grain rice, $52.46 and the General Accounting Office dur- per acre; ing regular business hours to inspect, (3) Upland cotton, $17.70 per acre; examine, and to allow such persons to (4) Soybeans, $15.62 per acre; and make copies of such books, records or (5) Sweet potatoes, $155.41 per acre. other items for the purpose of con- (b) Payments will be calculated based firming the accuracy of the informa- on the 2009 crop year reported or deter- tion provided by the producer. mined planted or considered planted acres of an eligible crop on a farm in a § 760.708 Miscellaneous provisions and disaster county as reflected on a form limitations. FSA–578, Report of Acreage, on file in (a) A person ineligible under FSA as of October 22, 2010. § 1437.15(c) of this title concerning vio- § 760.706 Availability of funds. lations of the Noninsured Crop Disaster Assistance Program for the 2009 crop (a) Payments specified in this sub- year is ineligible for benefits under part are subject to the availability of this subpart. funds. The total available program funds are $550 million. In order to keep (b) A person ineligible under § 400.458 payments within available funds, the of this title for the 2009 crop year con- Deputy Administrator may pro-rate cerning violations of crop insurance payments, to the extent the Deputy regulations is ineligible for CAP. Administrator determines that nec- (c) In the event that any request for essary. CAP payment resulted from erroneous (b) Funds for CAP are being made information or a miscalculation, the available only for the 2009 crop year repayment will be recalculated and the ported and determined eligible crop producer must refund any excess to acreage in disaster counties as re- FSA with interest to be calculated flected on a form FSA–578, Report of from the date of the disbursement to Acreage, as of October 22, 2010. the producer. If for whatever reason the producer signing a CAP application § 760.707 Proof of loss. overstates the loss level of the crop (a) All certifications, applications, when the actual loss level determined and documentation are subject to spot by FSA for the crop is less than the check and verification by FSA. Pro- level claimed, or where the CAP pay- ducers must submit documentation to ment would exceed the producer’s ac- FSA if and when FSA requests docu- tual loss, the application will be dis- mentation to substantiate any cer- approved for the crop and the full CAP tified application. payment for that crop will be required (b) Producers are responsible for re- to be refunded with interest from date taining or providing, when required, of disbursement. The CAP payment verifiable or reliable production or loss records available for the crop. Pro- cannot exceed the producer’s actual ducers are also responsible for summa- loss. rizing all the production or loss evi-

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(d) The liability of anyone for any that would allow a producer to directly penalty or sanction under or in connec- receive a CAP payment, then the pay- tion with this subpart, or for any re- ment to the actual payee will be refund to FSA or related charge is in ad- duced commensurately with that inter- dition to any other liability of such est. For CAP, unless otherwise speci- person under any civil or criminal fied in part 1400 of this title, the AGI fraud statute or any other provision of amount will be that person’s or legal law including, but not limited to: 18 entity’s average AGI for the three tax- U.S.C. 286, 287, 371, 641, 651, 1001, and able years that precede the 2008 taxable 1014; 15 U.S.C. 714; and 31 U.S.C. 3729. year (that is 2005, 2006, and 2007). (e) The regulations in parts 11 and 780 (k) For the purposes of the effect of of this title apply to determinations lien on eligibility for Federal programs under this subpart. (28 U.S.C. 3201(e)), FSA waives the re- (f) Any payment to any person under striction on receipt of funds under CAP this subpart will be made without re- but only as to beneficiaries who, as a gard to questions of title under State condition of such waiver, agree to law and without regard to any claim or apply the CAP payments to reduce the lien against the crop, or its proceeds. amount of the judgment lien. (g) Any payment made under this (l) For CAP, producers are either eli- subpart will be considered farm rev- gible or ineligible. Therefore, the pro- enue for 2009 for the Supplemental Rev- enue Assistance Payments Program. visions of § 718.304 of this chapter, (h) The average AGI limitation provi- ‘‘Failure to Fully Comply,’’ do not sions in part 1400 of this title relating apply to this subpart. to limits on payments for persons or (m) The regulations in subpart B legal entities, excluding joint ventures apply to CAP. In addition to those reg- and general partnerships, with certain ulations that specifically include sub- levels of average adjusted gross income part H or apply to this part, the fol- (AGI) apply to each applicant for CAP. lowing sections specifically apply to Specifically, a person or legal entity this subpart: §§ 760.113(a), 760.114, and with an average adjusted gross non- 760.116(a). farm income, as defined in § 1404.3 of this title, that exceeds $500,000 is not Subpart I—2005–2007 Crop eligible to receive CAP payments. Disaster Program (i) No person or legal entity, excluding a joint venture or general partnership, as determined by the rules in part SOURCE: 72 FR 72867, Dec. 21, 2007, unless otherwise noted. 1400 of this title may receive, directly or indirectly, more than $100,000 in § 760.800 Applicability. payments under this subpart. (j) The direct attribution provisions This part sets forth the terms and in part 1400 of this title apply to CAP. conditions for the 2005–2007 Crop Dis- Under those rules, any payment to any aster Program (2005–2007 CDP). CDP legal entity will also be considered for makes emergency financial assistance payment limitation purposes to be a available to producers who have in- payment to persons or legal entities curred crop losses in quantity or qual- with an interest in the legal entity or ity for eligible 2005, 2006, or 2007 crop in a sub-entity. If any such interested years due to disasters as determined by person or legal entity is over the pay- the Secretary under provisions of Title ment limitation because of direct pay- IX of the U.S. Troop Readiness, Vet- ment or their indirect interests or a erans’ Care, Katrina Recovery, and combination thereof, then the payment Iraq Accountability Appropriations to the actual payee will be reduced Act, 2007 (Pub. L. 110–28). However, to commensurate with the amount of the be eligible for assistance, the crop sub- interest of the interested person in the ject to the loss must have been planted payee. Likewise, by the same method, or existed before February 28, 2007, or, if anyone with a direct or indirect in- in the case of prevented planting, terest in a legal entity or sub-entity of would have been planted before Feb- a payee entity exceeds the AGI levels ruary 28, 2007.

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§ 760.801 Administration. Affected production means, with respect to quality losses, the harvested (a) The program will be administered production of an eligible crop that has under the general supervision of the a documented quality reduction of 25 Deputy Administrator for Farm Pro- percent or more on the verifiable programs and will be carried out in the duction record. field by FSA State and county commit- Appraised production means produc- tees. tion determined by FSA, or a company (b) State and county committees and reinsured by the Federal Crop Insur- representatives do not have the author- ance Corporation (FCIC), that was ity to modify or waive any of the provi- unharvested but was determined to re- sions of this part. flect the crop’s yield potential at the (c) The State committee will take time of appraisal. any action required by this part that Approved yield means the amount of has not been taken by a county com- production per acre, computed in ac- mittee. The State committee will also: cordance with FCIC’s Actual Produc- (1) Correct, or require a county com- tion History (APH) Program at part mittee to correct, any action taken by 400, subpart G of this title or, for crops that FSA county committee that is not not included under part 400, subpart G in accordance with this part; and of this title, the yield used to deter- (2) Require a county committee to mine the guarantee. For crops covered withhold taking or reverse any action under NAP, the approved yield is estab- that is not in accordance with this lished according to part 1437 of this part. title. Only the approved yields based on (d) No provision or delegation to a production evidence submitted to FSA State or county committee will pre- prior to May 25, 2007 will be used for vent the Deputy Administrator for purposes of the 2005–2007 CDP. Farm Programs from determining any Aquaculture means a value loss crop question arising under the program or for the reproduction and rearing of from reversing or modifying any deter- aquatic species in controlled or se- mination made by a State or county lected environments including, but not committee. limited to, ocean ranching, except pri- (e) The Deputy Administrator for vate ocean ranching of Pacific salmon Farm Programs may authorize State for profit in those States where such and county committees to waive or ranching is prohibited by law. modify non-statutory deadlines or Aquaculture facility means any land other program requirements in cases or structure including, but not limited where lateness or failure to meet such to, a laboratory, concrete pond, hatch- does not adversely affect the operation ery, rearing pond, raceway, pen, incu- of the program. bator, or other equipment used in aquaculture. § 760.802 Definitions. Aquaculture species means any aqua- The following definitions apply to culture species as defined in part 1437 this part. The definitions in parts 718 of this title. and 1400 of this title also apply, except Average market price means the price where they conflict with the defini- or dollar equivalent on an appropriate tions in this section. basis for an eligible crop established by Actual production means the total FSA, or CCC, or RMA, as applicable, quantity of the crop appraised, har- for determining payment amounts. vested, or assigned, as determined by Such price will be based on historical the FSA State or county committee in data of the harvest basis excluding accordance with instructions issued by transportation, storage, processing, the Deputy Administrator for Farm packing, marketing, or other post-har- Programs. vesting expenses. Average market Administrative fee means an amount prices are generally applicable to all the producer must pay for Noninsured similarly situated participants and are Crop Disaster Assistance Program not established in response to indi- (NAP) enrollment for non-insurable vidual participants. Accordingly, the crops. established average market prices are

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not appealable under parts 11 or 780 of tiplied by the number of planted or pre- this title. vented acres of the crop for the unit. Catastrophic risk protection means the FCIC means the Federal Crop Insur- minimum level of coverage offered by ance Corporation, a wholly owned Gov- FCIC. ernment Corporation within USDA. CCC means the Commodity Credit Final planting date means the latest Corporation. date, established by the Risk Manage- Controlled environment means, with ment Agency (RMA) for insured crops, respect to those crops for which a con- by which the crop must initially be trolled environment is expected to be planted in order to be insured for the provided, including but not limited to full production guarantee or amount of ornamental nursery, aquaculture (in- insurance per acre. For NAP covered cluding ornamental fish), and flori- crops, the final planting date is as pro- culture, an environment in which ev- vided in part 1437 of this title. erything that can practicably be con- Flood prevention means: trolled with structures, facilities, (1) For aquaculture species, placing growing media (including, but not lim- the aquaculture facility in an area not ited to, water, soil, or nutrients) by the prone to flood; producer, is in fact controlled by the (2) In the case of raceways, devices or producer. structures designed for the control of Crop insurance means an insurance water level; and policy reinsured by FCIC under the (3) With respect to nursery crops, provisions of the Federal Crop Insur- placing containerized stock in a raised ance Act, as amended. area above expected flood level and Crop year means: providing draining facilities, such as (1) For insured crops, the crop year drainage ditches or tile, gravel, cinder, as defined according to the applicable or sand base. crop insurance policy; Good nursery growing practices means (2) For NAP covered crops, as pro- utilizing flood prevention, growing vided in part 1437 of this title. media, fertilization to obtain expected Damaging weather means drought, ex- production results, irrigation, insect cessive moisture, hail, freeze, tornado, and disease control, weed, rodent and hurricane, typhoon, excessive wind, ex- wildlife control, and over winterization cessive heat, weather-related saltwater storage facilities. intrusion, weather-related irrigation Ground water means aqueous supply water rationing, and earthquake and existing in an aquifer subsurface that volcanic eruptions, or any combina- is brought to the surface and made tion. It also includes a related condi- available for irrigation by mechanical tion that occurs as a result of the dam- means such as by pumps and irrigation aging weather and exacerbates the con- wells. dition of the crop, such as crop disease, Growing media means: and insect infestation. (1) For aquaculture species, media Deputy Administrator means the Dep- that provides nutrients necessary for uty Administrator for Farm Programs, the production of the aquaculture spe- Farm Service Agency, U.S. Department cies and protects the aquaculture spe- of Agriculture or designee. cies from harmful species or chemicals Eligible crop means a crop insured by or FCIC as defined in part 400 of this title, (2) For nursery crops, a well-drained or included under NAP as defined under media with a minimum 20 percent air part 1437 of this title for which insur- pore space and pH adjustment for the ance or NAP coverage was obtained type of plant produced designed to pre- timely for the year which CDP benefits vent ‘‘root rot.’’ are sought. Harvested means: End use means the purpose for which (1) For insured crops, harvested as the harvested crop is used, such as defined according to the applicable grain, hay, or seed. crop insurance policy; Expected production means, for an ag- (2) For NAP covered single harvest ricultural unit, the historic yield mul- crops, that a crop has been removed

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from the field, either by hand or me- conditions in the area or county, as de- chanically, or by grazing of livestock; termined by the county committee in (3) For NAP covered crops with po- accordance with instructions issued by tential multiple harvests in 1 year or the Deputy Administrator. harvested over multiple years, that the Multi-use crop means a crop intended producer has, by hand or mechanically, for more than one end use during the removed at least one mature crop from calendar year such as grass harvested the field during the crop year; for seed, hay, and grazing. (4) For mechanically-harvested NAP Multiple cropping means the planting covered crops, that the crop has been of two or more different crops on the removed from the field and placed in a same acreage for harvest within the truck or other conveyance, except hay same crop year. is considered harvested when in the Multiple planting means the planting bale, whether removed from the field for harvest of the same crop in more or not. Grazed land will not be consid- than one planting period in a crop year ered harvested for the purpose of deter- on different acreage. mining an unharvested or prevented NASS means the National Agricul- planting payment factor. A crop that is tural Statistics Service. intended for mechanical harvest, but Net crop insurance indemnity means subsequently grazed and not mechani- the indemnity minus the producer paid cally harvested, will have an premium. unharvested factor applied. NAP covered means a crop for which Historic yield means, for a unit, the the participants obtained assistance higher of the county average yield or under section 196 of the Federal Agri- the participant’s approved yield. culture Improvement and Reform Act (1) An insured participant’s yield will of 1996 (7 U.S.C. 7333). be the higher of the county average Normal mortality means the percent- yield listed or the approved federal age of dead aquaculture species that crop insurance APH, for the disaster would normally occur during the crop year. year. (2) NAP participant’s yield will be Person means person as defined in the higher of the county average or ap- part 1400 of this title, and all rules with proved NAP APH for the disaster year. respect to the determination of a per- Insurable crop means an agricultural son found in that part are applicable to crop (excluding livestock) for which this part. However, the determinations the producer on a farm is eligible to ob- made in this part in accordance with tain a policy or plan of insurance under part 1400, subpart B, Person Deter- the Federal Crop Insurance Act (7 minations, of this title will also take U.S.C. 1501–1524). into account any affiliation with any Marketing contract means a legally entity in which an individual or entity binding written contract between a has an interest, regardless of whether purchaser and grower for the purpose or not such entities are considered to of marketing a crop. be actively engaged in farming. Market value means: Planted acreage means land in which (1) The price(s) designated in the seed, plants, or trees have been placed, marketing contract; or appropriate for the crop and planting (2) If not designated in a marketing method, at a correct depth, into a seed- contract, the rate established for quan- bed that has been properly prepared for tity payments under § 760.811. the planting method and production Maximum average loss level means the practice normal to the USDA plant maximum average level of crop loss to hardiness zone as determined by the be attributed to a participant without county committee. acceptable production records Prevented planting means the inabil- (verifiable or reliable). Loss levels are ity to plant an eligible crop with prop- expressed in either a percent of loss or er equipment during the planting pe- yield per acre, and are intended to re- riod as a result of an eligible cause of flect the amount of production that a loss, as determined by FSA. participant would have been expected Production means quantity of the to make if not for the eligible disaster crop or commodity produced expressed

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in a specific unit of measure including, agricultural crops absent an eligible but not limited to, bushels or pounds. disaster condition impacting either the Rate means price per unit of the crop aquifer or watershed. Surface irriga- or commodity. tion water may result from feral Recording county means, for a pro- sources or from irrigation districts. ducer with farming interests in only Tropical crops has the meaning as- one county, the FSA county office in signed in part 1437 of this title. which the producer’s farm is adminis- Tropical region has the meaning as- tratively located or, for a producer signed in part 1437 of this title. with farming interests that are admin- Unharvested factor means a percent- istratively located in more than one age established for a crop and applied county, the FSA county office des- in a payment formula to reduce the ignated by FSA to control the pay- payment for reduced expenses incurred ments received by the producer. because commercial harvest was not Related condition means, with respect performed. Unharvested factors are to a disaster, a condition that causes generally applicable to all similarly deterioration of a crop, such as insect situated participants and are not es- infestation, plant disease, or aflatoxin, tablished in response to individual par- that is accelerated or exacerbated as a ticipants. Accordingly established result of damaging weather, as deter- unharvested factors are not appealable mined in accordance with instructions under parts 11 and 780 of this title. issued by the Deputy Administrator. Unit means, unless otherwise deter- Reliable production records means evi- mined by the Deputy Administrator, dence provided by the participant that basic unit as defined in part 457 of this is used to substantiate the amount of title that, for ornamental nursery pro- production reported when verifiable duction, includes all eligible plant spe- records are not available, including cies and sizes. copies of receipts, ledgers of income, Unit of measure means: income statements of deposit slips, (1) For all insured crops, the FCIC-es- register tapes, invoices for custom har- tablished unit of measure; vesting, and records to verify produc- (2) For all NAP covered crops, the es- tion costs, contemporaneous measure- tablished unit of measure, if available, ments, truck scale tickets, and con- used for the 2005, 2006, or 2007 NAP temporaneous diaries that are deter- price and yield; mined acceptable by the county com- (3) For aquaculture species, a stand- mittee. ard unit of measure such as gallons, Repeat crop means, with respect to pounds, inches, or pieces, established production, a commodity that is plant- by the State committee for all aqua- ed or prevented from being planted in culture species or varieties; more than one planting period on the (4) For turfgrass sod, a square yard; same acreage in the same crop year. (5) For maple sap, a gallon; RMA means the Risk Management (6) For honey, pounds; and Agency. (7) For all other crops, the smallest Salvage value means the dollar unit of measure that lends itself to the amount or equivalent for the quantity greatest level of accuracy with mini- of the commodity that cannot be mar- mal use of fractions, as determined by keted or sold in any recognized market the State committee. for the crop. United States means all 50 States of Secondary use means the harvesting the United States, the Commonwealth of a crop for a use other than the in- of Puerto Rico, the Virgin Islands of tended use. the United States, and to the extent Secondary use value means the value the Deputy Administrator determines determined by multiplying the quan- it to be feasible and appropriate, tity of secondary use times the FSA or Guam, American Samoa, the Common- CCC-established price for that use. wealth of the Northern Mariana Is- State committee means the FSA State lands, and the former Trust Territory committee. of the Pacific Islands, which include Surface irrigation water means aque- Palau, Federated States of Micronesia, ous supply anticipated for irrigation of and the Marshall Islands.

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USDA means the United States De- part 12 of this title for the 2005, 2006, or partment of Agriculture. 2007 crop year, as applicable, and must USDA Plant Hardiness Zone means 11 not otherwise be precluded from receiv- regions or planting zones as defined by ing benefits under parts 12 or 1400 of a 10 degree Fahrenheit difference in the this title or any law. average annual minimum temperature. Value loss crop has the meaning as- § 760.804 Time and method of applica- signed in part 1437 of this title. tion. Verifiable production record means: (a) The 2005, 2006, 2007 Crop Disaster (1) For quantity losses, evidence that Program application must be sub- is used to substantiate the amount of mitted on a completed FSA–840, or production reported and that can be such other form designated for such ap- verified by FSA through an inde- plication purpose by FSA, in the FSA pendent source; or (2) For quality losses, evidence that county office in the participant’s con- is used to substantiate the amount of trol county office before the close of production reported and that can be business on a date that will be an- verified by FSA through an inde- nounced by the Deputy Administrator. pendent source including determined (b) Once signed by a participant, the quality factors and the specific quan- application for benefits is considered to tity covered by those factors. contain information and certifications Yield means unit of production, meas- of and pertaining to the participant re- ured in bushels, pounds, or other unit gardless of who entered the informa- of measure, per area of consideration, tion on the application. usually measured in acres. (c) The participant requesting benefits under this program certifies the ac- § 760.803 Eligibility. curacy and truthfulness of the informa- (a) Participants will be eligible to re- tion provided in the application as well ceive disaster benefits under this part as any documentation filed with or in only if they incurred qualifying quan- support of the application. All informa- tity or quality losses for the 2005, 2006, tion is subject to verification by FSA. or 2007 crops, as further specified in For example, as specified in § 760.818(f), this part, as a result of damaging the participant may be required to pro- weather or any related condition. Par- vide documentation to substantiate ticipants may not receive benefits with and validate quality standards and respect to volunteer stands of crops. marketing contract prices. Refusal to (b) Payments may be made for losses allow FSA or any agency of the De- suffered by an eligible participant who, partment of Agriculture to verify any at the time of application, is a de- information provided will result in the ceased individual or is a dissolved enti- participant’s forfeiting eligibility ty if a representative, who currently under this program. Furnishing re- has authority to enter into a contract quired information is voluntary; how- for the participant, signs the 2005, 2006, ever without it, FSA is under no obli- or 2007 Crop Disaster Program application. Participants must provide proof gation to act on the application or ap- of the authority to sign legal docu- prove benefits. Providing a false cer- ments for the deceased individual or tification to the government is punish- dissolved entity. If a participant is now able by imprisonment, fines, and other a dissolved general partnership or joint penalties. venture, all members of the general (d) FSA may require the participant partnership or joint venture at the to submit any additional information time of dissolution or their duly au- it deems necessary to implement or de- thorized representatives must sign the termine any eligibility provision of application for payment. this part. For example, as specified in (c) As a condition to receive benefits § 760.818(f), the participant may be re- under this part, the Participant must quired to provide documentation to have been in compliance with the High- substantiate and validate quality ly Erodible Land Conservation and standards and marketing contract Wetland Conservation provisions of prices.

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(e) The application submitted in ac- value of the expected production for cordance with paragraph (a) of this sec- the relevant period as determined by tion is not considered valid and com- FSA. Accordingly, the sum of the value plete for issuance of payment under of the crop not lost, if any; the disaster this part unless FSA determines all the payment received under this part; and applicable eligibility provisions have any crop insurance payment or pay- been satisfied and the participant has ments received under the NAP for submitted all of following completed losses to the same crop, cannot exceed forms: 95 percent of what the crop’s value (1) If Item 16 on FSA–840 is answered would have been if there had been no ‘‘YES,’’ FSA–840M, Crop Disaster Pro- loss. gram for Multiple Crop—Same Acreage (g) An individual or entity whose ad- Certification; justed gross income is in excess of $2.5 (2) CCC–502, Farm Operating Plan for million, as defined by and determined Payment Eligibility; under part 1400 subpart G of this title, (3) CCC–526, Payment Eligibility Av- is not eligible to receive disaster bene- erage Adjusted Gross Income Certifi- fits under this part. cation; (h) Any participant in a county eligi- (4) AD–1026, Highly Erodible Land ble for either of the following programs Conservation (HELC) and Wetland Con- must complete a duplicate benefits cer- servation Certification; and (5) FSA–578, Report of Acreage. tification. If the participant received a (f) Application approval and payment payment authorized by either of the by FSA does not relieve a participant following, the amount of that payment from having to submit any form re- will be reduced from the calculated quired, but not filed, according to para- 2005–2007 CDP payment: graph (e) of this section. (1) The Hurricane Indemnity Pro- gram (subpart B of this part); § 760.805 Limitations on payments and (2) The Hurricane Disaster Programs other benefits. (subparts D, E, F, and G of part 1416 of (a) A participant may receive bene- this title); fits for crop losses for only one of the (3) The 2005 Louisiana Sugarcane 2005, 2006, or 2007 crop years as specified Hurricane Disaster Assistance Pro- under this part. gram; or (b) Payments will not be made under (4) The 2005 Crop Florida Sugarcane this part for grazing losses. Disaster Program. (c) Payments determined to be issued are considered due and payable not § 760.806 Crop eligibility requirements. later than 60 days after a participant’s (a) A participant on a farm is eligible application is completed with all infor- for assistance under this section with mation necessary for FSA to determine respect to losses to an insurable com- producer eligibility for benefits. modity or NAP if the participant: (d) FSA may divide and classify crops based on loss susceptibility, yield, and (1) In the case of an insurable com- other factors. modity, obtained a policy or plan of in- (e) No person, as defined by part 1400 surance under the Federal Crop Insur- subpart B of this title, may receive ance Act for the crop incurring the more than a total of $80,000 in disaster losses; or benefits under this part. In applying (2) In the case of a NAP covered crop, the $80,000 per person payment limita- filed the required paperwork and paid tion, regardless of whether 2005, 2006, or the administrative fee by the applica- 2007 crop year benefits are at issue or ble filing deadline, for the noninsurable sought, the most restrictive ‘‘person’’ commodity under section 196 of the determination for the participant in Federal Agriculture Improvement and the years 2005, 2006, and 2007, will be Reform Act of 1996 for the crop incur- used to limit benefits. ring the losses. (f) No participant may receive dis- (b) The reasons a participant either aster benefits under this part in an elected not to have coverage or did not amount that exceeds 95 percent of the have coverage mentioned in paragraphs

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(a)(1) or (2) of this section are not rel- under any civil or criminal fraud stat- evant to the determination of the par- ute or any other provision of law in- ticipant’s ineligibility under this sec- cluding, but not limited to: 18 U.S.C. tion. In addition, such reasons for not 286, 287, 371, 641, 651, 1001, and 1014; 15 having crop insurance coverage have U.S.C. 714; and 31 U.S.C. 3729. no bearing for consideration under part (g) The regulations in parts 11 and 780 718, subpart D of this chapter. of this title apply to determinations under this part. § 760.807 Miscellaneous provisions. (h) Any payment to any person will (a) A person is not eligible to receive be made without regard to questions of disaster assistance under this part if it title under State law and without re- is determined by FSA that the person gard to any claim or lien against the has: crop, or its proceeds. (1) Adopted any scheme or other de- (i) For the purposes of the effect of vice that tends to defeat the purpose of lien on eligibility for Federal programs this part; (28 U.S.C. 3201(e)), FSA waives the re- (2) Made any fraudulent representa- striction on receipt of funds or benefits tion; under this program but only as to (3) Misrepresented any fact affecting beneficiaries who, as a condition of a program determination; (4) Is ineligible under § 1400.5 of this such waiver, agree to apply the bene- title; or fits received under this part to reduce (5) Does not have entitlement to an the amount of the judgment lien. ownership share of the crop. (j) Under this program, participants (i) Growers growing eligible crops are either eligible or ineligible. Par- under contract for crop owners are not ticipants in general, do not render per- eligible unless the grower can be deter- formance or need to comply. They ei- mined to have a share of the crop. ther suffered eligible losses or they did (ii) Any verbal or written contract not. Accordingly, the provisions of that precludes the grower from having § 718.304 of this chapter do not apply to an ownership share renders the grower this part. ineligible for benefits under this part. (b) A person ineligible under § 760.808 General provisions. § 1437.15(c) of this title for any year is (a) For calculations of loss, the par- likewise ineligible for benefits under ticipant’s existing unit structure will this part for that year or years. be used as the basis for the calculation (c) A person ineligible under § 400.458 established in accordance with: of this title for any year is likewise in- (1) For insured crops, part 457 of this eligible for benefits under this part for title; or that year or years. (2) For NAP covered crops, part 1437 (d) All persons with a financial inter- of this title. est in the operation receiving benefits under this part are jointly and sever- (b) County average yield for loss cal- ally liable for any refund, including re- culations will be the average of the 2001 lated charges, which is determined to through 2005 official county yields es- be due FSA for any reason. tablished by FSA, excluding the years (e) In the event that any request for with the highest and lowest yields, re- assistance or payment under this part spectively. resulted from erroneous information or (c) County committees will assign a miscalculation, the assistance or production or reduce the historic yield payment will be recalculated and any when the county committee deter- excess refunded to FSA with interest mines: to be calculated from the date of the (1) An acceptable appraisal or record disbursement to the producer. of harvested production does not exist; (f) The liability of anyone for any (2) The loss is due to an ineligible penalty or sanction under or in connec- cause of loss or practices, soil type, cli- tion with this part, or for any refund to mate, or other environmental factors FSA or related charge is in addition to that cause lower yields than those any other liability of such person upon which the historic yield is based;

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(3) The participant has a contract termine that because of eligible dam- providing a guaranteed payment for all aging weather or related condition spe- or a portion of the crop; or cifically impacting the crop or crop (4) The crop was planted beyond the acreage, the participant with respect normal planting period for the crop. to the 2005, 2006, or 2007 crop: (d) The county committee will estab- (1) Was prevented from planting a lish a maximum average loss level that crop; reflects the amount of production pro- (2) Sustained a loss in excess of 35 ducers would have produced if not for percent of the expected production of a the eligible damaging weather or re- crop; or lated conditions in the area or county (3) Sustained a loss in excess of 35 for the same crop. The maximum aver- percent of the value for value loss age loss level for the county will be ex- crops. pressed as either a percent of loss or (b) Qualifying losses under this part yield per acre. The maximum average do not include losses: loss level will apply when: (1) For the 2007 crop, those acres (1) Unharvested acreage has not been planted, or in the case of prevented appraised by FSA, or a company rein- planting, would have been planted, on sured by FCIC; or or after February 28, 2007; (2) Acceptable production records for (2) That are determined by FSA to be harvested acres are not available from the result of poor management deci- any source. sions, poor farming practices, or drift- (e) Assignment of production or re- ing herbicides; duction in yield will apply for practices (3) That are the result of the failure that result in lower yields than those of the participant to re-seed or replant for which the historic yield is based. the same crop in the county where it is § 760.809 Eligible damaging conditions. customary to re-seed or replant after a loss; (a) Except as provided in paragraphs (4) That are not as a result of a dam- (b) and (c) of this section, to be eligible aging weather or a weather related for benefits under this part the loss of condition specifically impacting the the crop, or reduction in quality, or crop or crop acreage; prevented planting must be due to (5) To crops not intended for harvest damaging weather or related condi- in crop year 2005, 2006, or 2007; tions as defined in § 760.802. (b) Benefits are not available under (6) Of by-products resulting from this part for any losses in quantity or processing or harvesting a crop, such quality, or prevented planting due to: as cottonseed, peanut shells, wheat, or (1) Poor farming practices; oat straw; (2) Poor management decisions; or (7) To home gardens; (3) Drifting herbicides. (8) That are a result of water con- (c) With the exception of paragraph tained or released by any govern- (d) of this section, in all cases, the eli- mental, public, or private dam or res- gible damaging condition must have di- ervoir project if an easement exists on rectly impacted the specific crop or the acreage affected for the contain- crop acreage during its planting or ment or release of the water; or growing period. (9) If losses could be attributed to (d) If FSA has determined that there conditions occurring outside of the ap- has been an eligible loss of surface irri- plicable crop year growing season. gation water due to drought and such (c) Qualifying losses under this part loss of surface irrigation water impacts for nursery stock will not include eligible crop acreage, FSA may ap- losses: prove assistance to the extent per- (1) For the 2007 crop, that nursery in- mitted by section 760.814. ventory acquired on or after February 28, 2007; § 760.810 Qualifying 2005, 2006, or 2007 (2) Caused by a failure of power sup- quantity crop losses. ply or brownouts; (a) To receive benefits under this (3) Caused by the inability to market part, the county committee must de- nursery stock as a result of lack of

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compliance with State and local com- FSA times the loss of value that ex- mercial ordinances and laws, quar- ceeds 35 percent of the expected pro- antine, boycott, or refusal of a buyer to duction value, as determined by FSA, accept production; of the unit. (4) Caused by fire unless directly re- (3) As determined by FSA, additional lated to an eligible natural disaster; quality loss payments may be made (5) Affecting crops where weeds and using a 25 percent quality loss thresh- other forms of undergrowth in the vi- old. The quality loss threshold is deter- cinity of the nursery stock have not mined according to § 760.817. been controlled; or (b) Payment rates for the 2005, 2006, (6) Caused by the collapse or failure or 2007 year crop losses will be 42 per- of buildings or structures. (d) Qualifying losses under this part cent of the average market price. for honey, where the honey production (c) Separate payment rates and by colonies or bees was diminished, yields for the same crop may be estab- will not include losses: lished by the State committee as au- (1) For the 2007 crop, for production thorized by the Deputy Administrator, from those bees acquired on or after when there is supporting data from February 28, 2007; NASS or other sources approved by (2) Where the inability to extract was FSA that show there is a significant due to the unavailability of equipment, difference in yield or value based on a the collapse or failure of equipment, or distinct and separate end use of the apparatus used in the honey operation; crop. Despite potential differences in (3) Resulting from storage of honey yield or values, separate rates or yields after harvest; will not be established for crops with (4) To honey production because of different cultural practices, such as bee feeding; those grown organically or (5) Caused by the application of hydroponically. chemicals; (d) Production from all end uses of a (6) Caused by theft, fire, or van- multi-use crop or all secondary uses for dalism; multiple market crops will be cal- (7) Caused by the movement of bees culated separately and summarized to- by the producer or any other person; or gether. (8) Due to disease or pest infestation of the colonies. (e) Each eligible participant’s share (e) Qualifying losses for other value of a disaster payment will be based on loss crops, except nursery, will not in- the participant’s ownership entitle- clude losses for the 2007 crop that were ment share of the crop or crop pro- acquired on or after February 28, 2007. ceeds, or, if no crop was produced, the (f) Loss calculations will take into share of the crop the participant would account other conditions and adjust- have received if the crop had been pro- ments provided for in this part. duced. If the participant has no ownership share of the crop, the participant § 760.811 Rates and yields; calculating is ineligible for assistance under this payments. part. (a)(1) Payments made under this part (f) When calculating a payment for a to a participant for a loss of quantity unit loss: on a unit with respect to yield-based (1) An unharvested payment factor crops are determined by multiplying will be applied to crop acreage planted the average market price times 42 per- but not harvested; cent, times the loss of production (2) A prevented planting factor will which exceeds 35 percent of the ex- be applied to any prevented planted pected production, as determined by FSA, of the unit. acreage eligible for payment; and (2) Payments made under this part to (3) Unharvested payment factors may a participant for a quantity loss on a be adjusted if costs normally associ- unit with respect to value-based crops ated with growing the crop are not in- are determined by multiplying the pay- curred. ment rate established for the crop by

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§ 760.812 Production losses; partici- unharvested appraised production, and pant responsibility. assigned production for the total plant- (a) Where available and determined ed acreage of the crop on the unit. accurate by FSA, RMA loss records (b) The harvested production of eligi- will be used for insured crops. ble crop acreage harvested more than (b) If RMA loss records are not avail- once in a crop year includes the total able, or if the FSA county committee harvested production from all these determines the RMA loss records are harvests. inaccurate or incomplete, or if the FSA (c) If a crop is appraised and subse- county committee makes inquiry, par- quently harvested as the intended use, ticipants are responsible for: the actual harvested production must (1) Retaining or providing, when re- be taken into account to determine quired, the best verifiable or reliable benefits. FSA will analyze and deter- production records available for the mine whether a participant’s evidence crop; of actual production represents all that (2) Summarizing all the production could or would have been harvested. evidence; (d) For all crops eligible for loan defi- (3) Accounting for the total amount ciency payments or marketing assist- of unit production for the crop, wheth- ance loans with an intended use of er or not records reflect this produc- grain but harvested as silage, ensilage, tion; cobbage, hay, cracked, rolled, or (4) Providing the information in a crimped, production will be adjusted manner that can be easily understood based on a whole grain equivalent as by the county committee; and established by FSA. (5) Providing supporting documentation if the county committee has rea- (e) For crops with an established son to question the damaging weather yield and market price for multiple in- event or question whether all produc- tended uses, a value will be calculated tion has been accounted for. by FSA with respect to the intended (c) In determining production under use or uses for disaster purposes based this section, the participant must sup- on historical production and acreage ply verifiable or reliable production evidence provided by the participant records to substantiate production to and FSA will determine the eligible the county committee. If the eligible acres for each use. crop was sold or otherwise disposed of (f) For crops sold in a market that is through commercial channels, produc- not a recognized market for the crop tion records include: commercial re- with no established county average ceipts; settlement sheets; warehouse yield and average market price, 42 per- ledger sheets; load summaries; or ap- cent of the salvage value received will praisal information from a loss ad- be deducted from the disaster payment. juster acceptable to FSA. If the eligi- (g) If a participant does not receive ble crop was farm-stored, sold, fed to compensation based upon the quantity livestock, or disposed of in means other of the commodity delivered to a pur- than commercial channels, production chaser, but has an agreement or con- records for these purposes include: tract for guaranteed payment for pro- truck scale tickets; appraisal informa- duction, the determination of the pro- tion from a loss adjuster acceptable to duction will be the greater of the ac- FSA; contemporaneous diaries; or tual production or the guaranteed pay- other documentary evidence, such as ment converted to production as deter- contemporaneous measurements. mined by FSA. (d) Participants must provide all (h) Production that is commingled records for any production of a crop between units before it was a matter of that is grown with an arrangement, record or combination of record and agreement, or contract for guaranteed cannot be separated by using records or payment. other means acceptable to FSA will be prorated to each respective unit by § 760.813 Determination of production. FSA. Commingled production may be (a) Production under this part in- attributed to the applicable unit, if the cludes all harvested production, participant made the unit production

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of a commodity a matter of record be- (b) In cases where there is a repeat fore commingling and does any of the crop or a multiple planted crop in more following, as applicable: than one planting period, or if there is (1) Provides copies of verifiable docu- multiple cropped acreage meeting cri- ments showing that production of the teria established in paragraph (c) or (d) commodity was purchased, acquired, or of this section, each of these crops may otherwise obtained from beyond the be considered separate crops if the unit; county committee determines that all (2) Had the production measured in a of the following conditions are met: manner acceptable to the county com- (1) Were planted with the intent to mittee; or harvest; (3) Had the current year’s production (2) Were planted within the normal appraised in a manner acceptable to planting period for that crop; the county committee. (3) Meet all other eligibility provi- (i) The county committee will assign sions of this part including good farm- production for the unit when the coun- ing practices; and ty committee determines that: (4) Could reach maturity if each (1) The participant has failed to pro- planting was harvested or would have vide adequate and acceptable produc- been harvested. tion records; (c) In cases where there is multiple- cropped acreage, each crop may be eli- (2) The loss to the crop is because of gible for disaster assistance separately a disaster condition not covered by this if both of the following conditions are part, or circumstances other than nat- met: ural disaster, and there has not other- (1) The specific crops are approved by wise been an accounting of this ineli- the State committee as eligible mul- gible cause of loss; tiple-cropping practices in accordance (3) The participant carries out a prac- with procedures approved by the Dep- tice, such as multiple cropping, that uty Administrator and separately meet generally results in lower yields than all requirements, including insurance the established historic yields; or NAP requirements ; and (4) The participant has a contract to (2) The farm containing the multiple- receive a guaranteed payment for all or cropped acreage has a history of suc- a portion of the crop; cessful multiple cropping more than (5) A crop was late-planted; one crop on the same acreage in the (6) Unharvested acreage was not same crop year, in the year previous to timely appraised; or the disaster, or at least 2 of the 4 crop (7) Other appropriate causes exist for years immediately preceding the dis- such assignment as determined by the aster crop year based on timely filed Deputy Administrator. crop acreage reports. (j) For peanuts, the actual produc- (d) A participant with multiple- tion is all peanuts harvested for nuts, cropped acreage not meeting the cri- regardless of their disposition or use, teria in paragraph (c) of this section as adjusted for low quality. may be eligible for disaster assistance (k) For tobacco, the actual produc- on more than one crop if the partici- tion is the sum of the tobacco: mar- pant has verifiable records establishing keted or available to be marketed; de- a history of carrying out a successful stroyed after harvest; and produced but multiple-cropping practice on the spe- unharvested, as determined by an ap- cific crops for which assistance is re- praisal. quested. All required records acceptable to FSA as determined by the Dep- § 760.814 Calculation of acreage for uty Administrator must be provided crop losses other than prevented before payments are issued. planted. (e) A participant with multiple- (a) Payment acreage of a crop is lim- cropped acreage not meeting the cri- ited to the lesser of insured acreage or teria in paragraphs (c) or (d) of this NAP covered acreage of the crop, as ap- section must select the crop for which plicable, or actual acreage of the crop assistance will be requested. If more planted for harvest. than one participant has an interest in

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the multiple cropped acreage, all par- the acreage the same crop year, unless ticipants must agree to the crop des- the county committee determines the ignated for payment by the end of the lease was for haying and grazing rights application period or no payment will only and was not a lease for use of the be approved for any crop on the mul- land; tiple-cropped acreage. (4) Acreage for which the participant (f) Benefits under this part apply to or any other person received a pre- irrigated crops where, in cases deter- vented planted payment for any crop mined by the Deputy Administrator, for the same acreage, excluding share acreage was affected by a lack of sur- arrangements; face irrigation water due to drought or (5) Acreage for which the participant contamination of ground water or sur- cannot provide verifiable proof to the face irrigation water due to saltwater county committee that inputs such as intrusion. In no case is a loss of ground seed, chemicals, and fertilizer were water, for any reason, an eligible cause available to plant and produce a crop of loss. with the expectation of producing at least a normal yield; and § 760.815 Calculation of prevented (6) Any other acreage for which, for planted acreage. whatever reason, there is cause to (a) When determining losses under question whether the crop could have this part, prevented planted acreage been planted for a successful and time- will be considered separately from ly harvest, or for which prevented planted acreage of the same crop. planting credit is not allowed under (b) For insured crops, or NAP covered the provisions of this part. crops, as applicable, disaster payments (e) Prevented planting payments are under this part for prevented planted not provided on acreage that had either acreage will not be made unless RMA a previous or subsequent crop planted or FSA, as applicable, documentation in the same crop year on the acreage, indicates that the eligible participant unless the county committee deter- received a prevented planting payment mines that all of the following condi- under either NAP or the RMA-adminis- tions are met: tered program. (1) There is an established practice of (c) The participant must prove, to planting two or more crops for harvest the satisfaction of the county com- on the same acreage in the same crop mittee, an intent to plant the crop and year; that such crop could not be planted be- (2) Both crops could have reached cause of an eligible disaster. The coun- maturity if each planting was har- ty committee must be able to deter- vested or would have been harvested; mine the participant was prevented (3) Both the initial and subsequent from planting the crop by an eligible planted crops were planted or pre- disaster that: vented planting within the normal (1) Prevented other producers from planting period for that crop; planting on acreage with similar char- (4) Both the initial and subsequent acteristics in the surrounding area; planted crops meet all other eligibility (2) Occurred after the previous plant- provisions of this part including good ing period for the crop; and farming practices; and (3) Unless otherwise approved by the (5) The specific crops meet the eligi- Deputy Administrator, began no ear- bility criteria for a separate crop des- lier than the planting season for that ignation as a repeat or approved mul- crop. tiple cropping practice set out in (d) Prevented planted disaster bene- § 760.814. fits under this part do not apply to: (f)(1) Disaster benefits under this (1) Acreage not insured or NAP cov- part do not apply to crops where the ered; prevented planted acreage was affected (2) Any acreage on which a crop other by a disaster that was caused by than a cover crop was harvested, drought unless on the final planting hayed, or grazed during the crop year; date or the late planting period for (3) Any acreage for which a cash non-irrigated acreage, the area that lease payment is received for the use of was prevented from being planted had

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insufficient soil moisture for germina- the crop would have had if the crop had tion of seed and progress toward crop not suffered a quality loss. maturity because of a prolonged period (b) The amount of payment for a of dry weather; quality loss will be equal to 65 percent (2) Verifiable information collected of the quantity of the crop affected by by sources whose business or purpose is the quality loss, not to exceed expected to record weather conditions, includ- production based on harvested acres, ing, but not limited to, local weather multiplied by 42 percent of the per unit reporting stations of the U.S. National average market value based on per- Weather Service. centage of quality loss for the crop as (g) Prevented planting benefits under determined by the Deputy Adminis- this part apply to irrigated crops where trator. adequate irrigation facilities were in (c) This section applies to all crops place before the eligible disaster and eligible for 2005, 2006, and 2007 crop dis- the acreage was prevented from being aster assistance under this part, with planted due to a lack of water resulting the exceptions of value loss crops, from drought conditions or contamina- honey, and maple sap, and applies to tion by saltwater intrusion of an irri- crop production that has a reduced eco- gation supply resulting from drought nomic value due to the reduction in conditions. quality. (h) For NAP covered crops, prevented (d) Participants may not be com- planting provisions apply according to pensated under this section to the ex- part 718 of this chapter. tent that such participants have re- (i) Late-filed crop acreage reports for ceived assistance under other provi- prevented planted acreage in previous sions of this part, attributable in whole years are not acceptable for CDP pur- or in part to diminished quality. poses. § 760.818 Marketing contracts. § 760.816 Value loss crops. (a) A marketing contract must meet all of the conditions outlined in para- (a) Notwithstanding any other provi- graphs (b), (c), and (d) of this section. sions of this part, this section applies (b) A marketing contract, at a min- to value loss crops and tropical crops. imum, must meet all of the following Unless otherwise specified, all the eli- conditions: gibility provisions of part 1437 of this (1) Be a legal contract in the State title apply to value loss crops and trop- where executed; ical crops under this part. (2) Specify the commodity under con- (b) For value loss crops, benefits tract; under this part are calculated based on (3) Specify crop year; the loss of value at the time of the (4) Be signed by both the participant, damaging weather or related condition, or legal representative, and the pur- as determined by FSA. chaser of the specified commodity; (c) For tropical crops: (5) Include a commitment to deliver (1) CDP benefits for 2005 are cal- the contracted quantity; culated according to general provisions (6) Include a commitment to pur- of part 1437, but not subpart F, of this chase the contracted quantity that title. meets specified minimum quality (2) CDP benefits for 2006 and 2007 are standards and other criteria as speci- calculated according to part 1437, sub- fied; part F of this title. (7) Define a determinable quantity by containing either a: § 760.817 Quality losses for 2005, 2006, (i) Specified production quantity or and 2007 crops. (ii) A specified acreage for which pro- (a) Subject to other provisions of this duction quantity can be calculated; part, assistance will be made available (8) Define a determinable price by to participants determined eligible containing either a: under this section for crop quality (i) Specified price or losses of 25 percent or greater of the (ii) Method to determine such a value that all affected production of price;

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(9) Contain a relationship between received for the commodity for which the price and the quality using either: crop quality loss assistance is re- (i) Specified quality standards or quested. In cases where the county (ii) A method to determine such qual- committee has reason to believe the ity standards from published third participant lacks the capacity or his- party data; and tory to fulfill the quality provisions of (10) Have been executed within 10 the marketing contract the county days after: committee will require such docu- (i) End of insurance period for in- mentation. sured crops or (ii) Normal harvest date for NAP cov- § 760.819 Misrepresentation, scheme, ered crops as determined by FSA. or device. (c) The purchaser of the commodity (a) A person is ineligible to receive specified in the marketing contract assistance under this part if it is deter- must meet at least one of the fol- mined that such person has: lowing: (1) Adopted any scheme or device (1) Be a licensed commodity ware- that tends to defeat the purpose of this houseman; program; (2) Be a business enterprise regularly engaged in the processing of a com- (2) Made any fraudulent representa- modity, that possesses all licenses and tion under this program; permits for marketing the commodity (3) Misrepresented any fact affecting required by the State in which it oper- a program or person determination; or ates, and that possesses or has con- (4) Has violated or been determined tracted for facilities with enough ineligible under § 1400.5 of this title. equipment to accept and process the commodity within a reasonable § 760.820 Offsets, assignments, and amount of time after harvest; or debt settlement. (3) Is able to physically receive the (a) Except as provided in paragraph harvested production. (b) of this section, any payment to any (d) In order for the commodity speci- person will be made without regard to fied in the marketing contract to be questions of title under State law and considered sold pursuant to the mar- without regard to any claim or lien keting contract, the commodity must against the crop, or proceeds, in favor have been produced by the participant of the owner or any other creditor ex- in the crop year specified in the con- cept agencies of the U.S. Government. tract, and at least one of the following The regulations governing offsets and conditions must be met: withholdings found at part 1403 of this (1) Commodity was sold under the title apply to any payments made terms of the contract or under this part. (2) Participant attempted to deliver (b) Any participant entitled to any the commodity to the purchaser, but payment may assign any payments in the commodity was rejected due to accordance with regulations governing quality factors as specified in the con- the assignment of payments found at tract. part 1404 of this title. (e) The amount of payment for affected production, as determined in (c) A debt or claim may be settled ac- § 760.817(b), sold pursuant to one or cording to part 792 of this chapter. more marketing contracts will take § 760.821 Compliance with highly erod- into consideration the marketing con- ible land and wetland conservation. tract price as determined by FSA. (f) County committees have the au- (a) The highly erodible land and wet- thority to require a participant to pro- land conservation provisions of part 12 vide necessary documentation, which of this title apply to the receipt of dis- may include, but is not limited to, pre- aster assistance for 2005, 2006, and 2007 vious marketing contracts fulfilled, to crop losses made available under this substantiate and validate quality authority. standards in paragraph (b)(9) of this (b) Eligible participants must be in section and marketing contract price compliance with the highly erodible

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land and wetland conservation compli- gible disaster event. Drought is not an ance provisions for the year for which eligible disaster event except when an- financial assistance is requested. thrax, as a related condition that occurs as a result of drought, results in Subpart J—2005–2007 Livestock the death of eligible livestock. Indemnity Program § 760.902 Eligible counties and disaster periods. SOURCE: 72 FR 72867, Dec. 21, 2007, unless otherwise noted. Counties are eligible for agricultural assistance under the 2005–2007 LIP if § 760.900 Administration. they received a timely Presidential designation, a timely Secretarial dec- (a) The regulations in this subpart specify the terms and conditions appli- laration, or a qualifying Administra- cable to the 2005–2007 Livestock Indem- tor’s Physical Loss Notice (APLN) de- nity Program (2005–2007 LIP), which termination in a county otherwise the will be administered under the general subject of a timely Presidential dec- supervision and direction of the Ad- laration, or are counties contiguous to ministrator, FSA. such counties. Presidential designa- (b) FSA representatives do not have tions and Secretarial declarations will authority to modify or waive any of be considered timely only if made after the provisions of the regulations of this January 1, 2005, and before February 28, subpart. 2007. Eligible counties, disaster events, (c) The State FSA committee will and disaster periods are listed at http:// take any action required by the regula- disaster.fsa.usda.gov. tions of this subpart that the county § 760.903 Definitions. FSA committee has not taken. The State FSA committee will also: The following definitions apply to (1) Correct, or require a county com- this subpart. The definitions in parts mittee to correct, any action taken by 718 and 1400 of this title also apply, ex- such county committee that is not in cept where they conflict with the defi- accordance with the regulations of this nitions in this section. subpart; or Adult beef bull means a male beef bo- (2) Require a county committee to vine animal that was at least 2 years withhold taking any action that is not old and used for breeding purposes be- in accordance with this subpart. fore it died. (d) No delegation to a State or coun- Adult beef cow means a female beef ty FSA committee will preclude the bovine animal that had delivered one Deputy Administrator for Farm Pro- or more offspring before dying. A first- grams from determining any question time bred beef heifer is also considered arising under the program or from re- an adult beef cow if it was pregnant at versing or modifying any determina- the time it died. tion made by a State or county FSA Adult buffalo and beefalo bull means a committee. male animal of those breeds that was at least 2 years old and used for breed- § 760.901 Applicability. ing purposes before it died. (a) This subpart establishes the Adult buffalo and beefalo cow means a terms and conditions under which the female animal of those breeds that had 2005–2007 LIP will be administered delivered one or more offspring before under Title IX of the U.S. Troop Readi- dying. A first-time bred buffalo or beef- ness, Veterans’ Care, Katrina Recov- alo heifer is also considered an adult ery, and Iraq Accountability Appro- buffalo or beefalo cow if it was preg- priations Act, 2007 (Pub. L. 110–28) for nant at the time it died. eligible counties as specified in Adult dairy bull means a male dairy § 760.902(a). breed bovine animal at least 2 years old (b) Eligible livestock owners and con- used primarily for breeding dairy cows tract growers will be compensated in before it died. accordance with § 760.909 for eligible Adult dairy cow means a female bo- livestock deaths that occurred in eligi- vine animal used for the purpose of ble counties as a direct result of an eli- providing milk for human consumption

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that had delivered one or more off- Kid means a goat less than 1 year old. spring before dying. A first-time bred Lamb means a sheep less than 1 year dairy heifer is also considered an adult old. dairy cow if it was pregnant at the Livestock owner means one having time it died. legal ownership of the livestock for Agricultural operation means a farm- which benefits are being requested on ing operation. the day such livestock died due to an Application means the ‘‘2005–2007 eligible disaster. Livestock Indemnity Program’’ form. Non-adult beef cattle means a bovine Application period means the date es- that does not meet the definition of tablished by the Deputy Administrator adult beef cow or bull. Non-adult beef for Farm Programs for participants to cattle are further delineated by weight apply for program benefits. categories of less than 400 pounds, and Buck means a male goat. 400 pounds or more at the time they Catfish means catfish grown as food died. for human consumption by a commer- Non-adult buffalo or beefalo means an cial operator on private property in animal of those breeds that does not water in a controlled environment. meet the definition of adult buffalo/ Commercial use means used in the op- beefalo cow or bull. Non-adult buffalo eration of a business activity engaged or beefalo are further delineated by in as a means of livelihood for profit by weight categories of less than 400 the eligible producer to apply for pro- pounds, and 400 pounds or more at the gram benefits. time of death. Contract means, with respect to con- Non-adult dairy cattle means a bovine tracts for the handling of livestock, a livestock, of a breed used for the pur- written agreement between a livestock pose of providing milk for human con- owner and another individual or entity sumption, that do not meet the defini- setting the specific terms, conditions, tion of adult dairy cow or bull. Non- and obligations of the parties involved adult dairy cattle are further delin- regarding the production of livestock eated by weight categories of less than or livestock products. 400 pounds, and 400 pounds or more at Controlled environment means an envi- the time they died. ronment in which everything that can Poultry means domesticated chick- practicably be controlled by the partic- ens, turkeys, ducks, and geese. Poultry ipant with structures, facilities, and are further delineated by sex, age, and growing media (including, but not lim- purpose of production as determined by ited to, water and nutrients) and was in FSA. fact controlled by the participant at Ram means a male sheep. the time of the disaster. Sheep means a domesticated, rumi- Crawfish means crawfish grown as nant mammal of the genus Ovis. Sheep food for human consumption by a com- are further defined by sex (rams and mercial operator on private property in ewes) and age (lambs). water in a controlled environment. Swine means a domesticated omnivo- Deputy Administrator means the Dep- rous pig, hog, and boar. Swine are fur- uty Administrator for Farm Programs, ther delineated by sex and weight as Farm Service Agency, U.S. Department determined by FSA. of Agriculture or the designee. Doe means a female goat. § 760.904 Limitations on payments and Equine animal means a domesticated other benefits. horse, mule, or donkey. (a) A participant may receive bene- Ewe means a female sheep. fits for livestock losses for only one of Farming operation means a business the 2005, 2006, or 2007 calendar years as enterprise engaged in producing agri- specified under this part. cultural products. (b) A ‘‘person’’ as determined under Goat means a domesticated, rumi- part 1400 of this title may receive no nant mammal of the genus Capra, in- more than $80,000 under this subpart. In cluding Angora goats. Goats are fur- applying the $80,000 per person pay- ther defined by sex (bucks and does) ment limitation, regardless of whether and age (kids). 2005, 2006, or 2007 calendar year benefits

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are at issue or sought, the most re- (i) After January 1, 2005, but before strictive ‘‘person’’ determination for February 28, 2007; the participant in the years 2005, 2006, (ii) No later than 60 calendar days and 2007, will be used to limit benefits. from the ending date of the applicable (c) The provisions of part 1400, sub- disaster period, but before February 28, part G, of this title relating to limits 2007; and to payments for individuals or entities (iii) In the calendar year for which with certain levels of adjusted gross in- benefits are being requested. come apply to this program. (2) The disaster event that caused the (d) As a condition to receive benefits loss must be the same event for which under this subpart, a participant must a natural disaster was declared or des- have been in compliance with the pro- ignated. visions of parts 12 and 718 of this title (3) Been maintained for commercial and must not otherwise be precluded use as part of a farming operation on from receiving benefits under any law. the day they died; and (e) An individual or entity deter- (4) Before dying, not have been pro- mined to be a foreign person under part duced or maintained for reasons other 1400 of this title is not eligible to re- than commercial use as part of a farm- ceive benefits under this subpart. ing operation, including, but not limited to, wild free roaming animals or § 760.905 Eligible owners and contract animals used for recreational purposes, growers. such as pleasure, hunting, roping, pets, (a) To be considered eligible, a live- or for show. stock owner must have had legal own- (d) In those counties in § 760.902, the ership of the eligible livestock, as pro- following types of animals owned by a vided in § 760.906(a), on the day the live- livestock owner are eligible livestock: stock died. (1) Adult beef bulls; (b) To be considered eligible, a con- (2) Adult beef cows; tract grower on the day the livestock (3) Adult buffalo or beefalo bulls; died must have had: (4) Adult buffalo or beefalo cows; (5) Adult dairy bulls; (1) A written agreement with the (6) Adult dairy cows; owner of eligible livestock setting the (7) Catfish; specific terms, conditions, and obliga- (8) Chickens, broilers, pullets; tions of the parties involved regarding (9) Chickens, chicks; the production of livestock; and (10) Chickens, layers, roasters; (2) Control of the eligible livestock, (11) Crawfish; as provided in § 760.906(b), on the day (12) Deer; the livestock died. (13) Ducks; (14) Ducks, ducklings; § 760.906 Eligible livestock. (15) Equine; (a) To be considered eligible live- (16) Geese, goose; stock for livestock owners, livestock (17) Geese, gosling; must be adult or non-adult dairy cat- (18) Goats, bucks; tle, beef cattle, buffalo, beefalo, cat- (19) Goats, does; fish, crawfish, equine, sheep, goats, (20) Goats, kids; swine, poultry, deer, or reindeer and (21) Non-adult beef cattle; meet all the conditions in paragraph (22) Non-adult buffalo/beefalo; (c) of this section. (23) Non-adult dairy cattle; (b) To be considered eligible live- (24) Reindeer stock for contract growers, livestock (25) Sheep, ewes; must be poultry or swine as defined in (26) Sheep, lambs; § 760.903 and meet all the conditions in (27) Sheep, rams; paragraph (c) of this section. (28) Swine, feeder pigs under 50 (c) To be considered eligible, live- pounds; stock must meet all of the following (29) Swine, sows, boars, barrows, gilts conditions: 50 to 150 pounds; (1) Died in an eligible county as a di- (30) Swine, sows, boars, barrows, gilts rect result of an eligible disaster event; over 150 pounds;

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(31) Turkeys, poults; and documented by: purchase records; vet- (32) Turkeys, toms, fryers, and roast- erinarian records; bank or other loan ers. papers; rendering truck receipts; Fed- (e) In those counties in § 760.902, the eral Emergency Management Agency following types of animals are eligible records; National Guard records; writ- livestock for contract growers: ten contracts; production records; In- (1) Chickens, broilers, pullets; ternal Revenue Service records; prop- (2) Chickens, layers, roasters; erty tax records; private insurance doc- (3) Geese, goose; uments; and other similar verifiable (4) Swine, boars, sows; documents as determined by FSA. (5) Swine, feeder pigs; (e) Certification of livestock deaths (6) Swine, lightweight barrows, gilts; by third parties may be accepted only (7) Swine, sows, boars, barrows, gilts; if both the following conditions are and met: (8) Turkeys, toms, fryers, and roast- (1) The livestock owner or livestock ers. contract grower, as applicable, certifies in writing: § 760.907 Application process. (i) That there is no other documenta- (a) To apply for 2005–2007 LIP, submit tion of death available; a completed application to the admin- (ii) The number of livestock, by cat- istrative county FSA office that main- egory determined by FSA, were in in- tains the farm records for your agricul- ventory at the time the applicable dis- tural operation, a copy of your grower aster event occurred; and contract, if you are a contract grower, (iii) Other details required for FSA to and other supporting documents re- determine the certification acceptable; quired for determining your eligibility and as an applicant. Supporting documents (2) The third party provides their must show: telephone number, address, and a writ- (1) Evidence of loss, ten statement containing: (2) Current physical location of live- (i) Specific details about their knowl- stock in inventory, and edge of the livestock deaths; (3) Physical location of claimed livestock at the time of death. (ii) Their affiliation with the live- (b) The application must be filed dur- stock owner; ing the application period announced (iii) The accuracy of the deaths by the Deputy Administrator. claimed by the livestock owner; and (c) A minor child is eligible to apply (iv) Other details required by FSA to for program benefits if all eligibility determine the certification acceptable. requirements are met and one of the (f) Data furnished by the participant following conditions exists: will be used to determine eligibility for (1) The right of majority has been program benefits. Furnishing the data conferred upon the minor by court pro- is voluntary; however, without all re- ceedings or statute; quired data program benefits will not (2) A guardian has been appointed to be approved or provided. manage the minor’s property, and the applicable program documents are exe- § 760.908 Deceased individuals or dis- cuted by the guardian; or solved entities. (3) A bond is furnished under which a (a) Payments may be made for eligi- surety guarantees any loss incurred for ble losses suffered by an eligible partic- which the minor would be liable had ipant who is now a deceased individual the minor been an adult. or is a dissolved entity if a representa- (d) The participant must provide ade- tive, who currently has authority to quate proof that the death of the eligi- enter into a contract, on behalf of the ble livestock occurred in an eligible participant, signs the application for county as a direct result of an eligible payment. disaster event during the applicable (b) Legal documents showing proof of disaster period. The quantity and kind authority to sign for the deceased indi- of livestock that died as a direct result vidual or dissolved entity must be proof the eligible disaster event may be vided.

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(c) If a participant is now a dissolved § 760.910 Appeals. general partnership or joint venture, The appeal regulations set forth at all members of the general partnership parts 11 and 780 of this title apply to or joint venture at the time of dissolu- determinations made pursuant to this tion or their duly authorized represent- subpart. atives must sign the application for payment. § 760.911 Offsets, assignments, and debt settlement. § 760.909 Payment calculation. (a) Any payment to any participant (a) Under this subpart separate pay- will be made without regard to ques- ment rates are established for eligible tions of title under State law and with- livestock owners and eligible livestock out regard to any claim or lien against contract growers in accordance with the commodity, or proceeds, in favor of paragraphs (b) and (c) of this section. the owner or any other creditor except Payments for the 2005–2007 LIP are cal- agencies of the U.S. Government. The culated by multiplying the national regulations governing offsets and payment rate for each livestock cat- withholdings found at part 792 of this egory, as determined in paragraphs (b) chapter apply to payments made under and (c) of this section, by the number this subpart. of eligible livestock in each category, (b) Any participant entitled to any as provided in § 760.906. Adjustments payment may assign any payment in will be applied in accordance with accordance with regulations governing paragraphs (d) and (e) of this section. the assignment of payments found at (b) The 2005–2007 LIP national pay- part 1404 of this title. ment rate for eligible livestock owners is based on 26 percent of the average § 760.912 Records and inspections. fair market value of the livestock. Participants receiving payments (c) The 2005–2007 LIP national pay- under this subpart or any other person ment rate for eligible livestock con- who furnishes information for the pur- tract growers is based on 26 percent of poses of enabling such participant to the average income loss sustained by receive a payment under this subpart the contract grower with respect to the must maintain any books, records, and dead livestock. accounts supporting any information (d) The 2005 payment calculated so furnished for 3 years following the under 2005–2007 LIP for eligible live- end of the year during which the appli- stock owners will be reduced by the cation for payment was filed. Partici- amount the participant received under: pants receiving payments or any other (1) The Livestock Indemnity Pro- person who furnishes such information gram (subpart E of this part); to FSA must allow authorized rep- (2) The Aquaculture Grant Program resentatives of USDA and the General (subpart G of this part); and Accountability Office, during regular (3) The Livestock Indemnity Pro- business hours, to inspect, examine, gram II (part 1416, subpart C of this and make copies of such books or title). records, and to enter upon, inspect and (e) The 2005 payment calculated verify all applicable livestock and acre- under 2005–2007 LIP for eligible live- age in which the participant has an in- stock contract growers will be reduced terest for the purpose of confirming the by the amount the participant re- accuracy of information provided by or ceived: for the participant. (1) Under the Livestock Indemnity Program (subpart E of this part); § 760.913 Refunds; joint and several li- (2) For the loss of income from the ability. dead livestock from the party who con- In the event there is a failure to com- tracted with the producer to grow the ply with any term, requirement, or livestock; and condition for payment or assistance (3) Under the Livestock Indemnity arising under this subpart, and if any Program II (part 1416, subpart C of this refund of a payment to FSA will other- title). wise become due in connection with

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this subpart, all payments made in re- ties contiguous to those counties, be- gard to such matter must be refunded tween January 1, 2005, and February 28, to FSA together with interest and late- 2007 (that is after January 1, 2005 and payment charges as provided for in before February 28, 2007). The listing is part 792 of this chapter. provided at http://disaster.fsa.usda.gov. For counties where there was an other- Subpart K—General Provisions for wise timely Presidential declaration, 2005–2007 Livestock Com- but the declarations do not cover agri- pensation and Catfish Grant cultural physical loss, the subject counties may still be eligible if the Programs counties were the subject of an approved Administrator’s Physical Loss SOURCE: 72 FR 72881, Dec. 21, 2007, unless Notice (APLN) when the APLN applies otherwise noted. to a natural disaster timely designated by the President. § 760.1000 Applicability. (a) This subpart establishes the § 760.1002 Definitions. terms and conditions under which the The following definitions apply to following programs will be adminis- the programs in subpart L and M of tered under Title IX of the U.S. Troop this part. The definitions in parts 718 Readiness, Veterans’ Care, Katrina Re- and 1400 of this title also apply, except covery, and Iraq Accountability Appro- where they conflict with the defini- priations Act, 2007 for participants af- tions in this section. fected by eligible disaster events and Commercial use means a use per- located in counties that are eligible as formed as part of the operation of a specified in § 760.1001: business activity engaged in as a (1) The 2005–2007 Livestock Com- means of livelihood for profit by the el- pensation Program (2005–2007 LCP); and igible producer. (2) The 2005–2007 Catfish Grant Pro- Farming operation means a business gram (2005–2007 CGP). enterprise engaged in producing agri- (b) Farm Service Agency (FSA) funds cultural products. as are necessary for the programs in subparts L and M of this part are avail- § 760.1003 Limitations on payments able under Title IX of the U.S. Troop and other benefits. Readiness, Veterans’ Care, Katrina Re- (a) A participant may receive bene- covery, and Iraq Accountability Appro- fits for eligible livestock feed losses, priations Act, 2007. including additional feed costs, for only one of the 2005, 2006, or 2007 cal- § 760.1001 Eligible counties, disaster endar years under 2005–2007 LCP, sub- events, and disaster periods. part L of this part, or under the CGP of (a) Except as provided in this sub- subpart M of this part. part, FSA will provide assistance under (b) As specified in § 760.1106(c), the the programs listed in § 760.1000 to eli- payment under the 2005–2007 LCP may gible participants who have suffered not exceed the smaller of the cal- certain losses due to eligible disaster culated payment in § 760.1106(a) or the events in eligible disaster counties pro- value of the producer’s eligible feed vided in paragraph (c) of this section. loss, increased feed costs, or forage or (b) The ‘‘Disaster Period’’ is the time grazing loss. period in which losses occurred for the (c) A person may receive no more particular disaster that may be consid- than $80,000 under 2005–2007 LCP, sub- ered eligible for the programs under part L of this part. In applying the subparts L and M of this part. The $80,000 per person payment limitation, start and end dates for each eligible regardless of whether the 2005, 2006, or disaster period are specified at http:// 2007 calendar year benefits are at issue disaster.fsa.usda.gov. or sought, the most restrictive ‘‘per- (c) Eligible counties are those pri- son’’ determination for the participant mary counties declared by the Sec- in the years 2005, 2006, and 2007, will be retary or designated for the applicable used to limit benefits. The rules and loss by the President, including coun- definitions of part 1400 of this title

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apply in construing who is a qualified Subpart L—2005–2007 Livestock separate ‘‘person’’ for purposes of this Compensation Program limit. All payment eligibility requirements of part 1400 as they apply to any SOURCE: 72 FR 72881, Dec. 21, 2007, unless other payments, also apply to pay- otherwise noted. ments under subpart L of this part. (d) For payments under 2005–2007 § 760.1100 Applicability. CGP, a farming operation may receive This subpart sets forth the terms and no more than $80,000, except for general conditions applicable to the 2005–2007 partnerships and joint ventures, in Livestock Compensation Program which case assistance will not exceed (LCP). $80,000 times the number of eligible members of the general partnership or § 760.1101 Administration. joint venture. This limit must be en- (a) This program is administered forced by the state government admin- under the general supervision of the istering the grant program. Administrator, Farm Service Agency (e) The provisions of part 1400, sub- (FSA). part G, of this title apply to these pro- (b) FSA representatives do not have grams. That is the rules that limit the authority to modify or waive any of eligibility for benefits of those individ- the provisions of the regulations of this uals or entities with an adjusted gross subpart. income greater than a certain limit (c) The State FSA committee must will be applied in the same manner to take any action required by the regula- payments under subparts L and M of tions of this subpart that the county this part. FSA committee has not taken. The (f) As a condition to receive benefits State committee must also: (1) Correct, or require a county com- under subparts L and M of this part, a mittee to correct, any action taken by participant must have been in compli- such county committee that is not in ance with the provisions of parts 12 and accordance with the regulations of this 718 of this title for the calendar year subpart; or for which benefits are being requested (2) Require a county committee to and must not otherwise be precluded withhold taking any action that is not from receiving benefits under any law. in accordance with this subpart. (g) An individual or entity deter- (d) No provision or delegation to a mined to be a foreign person under part State or county FSA committee will 1400 of this title is not eligible to re- preclude the FSA Deputy Adminis- ceive benefits under subparts L and M trator for Farm Programs (Deputy Ad- of this part. ministrator), or a designee of such, (h) In addition to limitations pro- from determining any question arising vided in subparts L and M of this part, under the program or from reversing or participants cannot receive duplicate modifying any determination made by benefits under subparts L and M of this a State or county FSA committee. part for the same loss or any similar (e) The Deputy Administrator for loss under: Farm Programs may authorize state (1) An agricultural disaster assist- and county committees to waive or ance provision contained in the an- modify nonstatutory deadlines or other program requirements in cases where nouncement of the Secretary on Janu- lateness or failure to meet such does ary 26, 2006, or August 29, 2006; not adversely affect the operation of (2) The Emergency Supplemental Ap- the program. propriations Act for Defense, the Glob- al War on Terror, and Hurricane Recov- § 760.1102 Definitions. ery, 2006 (Pub. L. 109–234; 120 Stat. 418); The following definitions apply to or this subpart. (3) Any other disaster assistance pro- Adult beef bull means a male beef bo- gram. vine animal that was at least 2 years old and used for breeding purposes on

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the beginning date of the disaster pe- Non-adult buffalo/beefalo means an riod. animal of those breeds that weighed 500 Adult beef cow means a female beef pounds or more on the beginning date bovine animal that had delivered one of the disaster period, but does not or more offspring before the disaster meet the definition of an adult buffalo period. A first-time bred beef heifer is or beefalo cow or bull. also considered an adult beef cow if it Non-adult dairy cattle means a bovine was pregnant on the beginning date of livestock, of a breed used for the pur- the disaster period. pose of providing milk for human con- Adult buffalo and beefalo bull means a sumption, that weighed 500 pounds or male animal of those breeds that was more on the beginning date of the dis- at least 2 years old and used for breed- aster period, but does not meet the def- ing purposes on the beginning date of inition of an adult dairy cow or bull. the disaster period. Owner means one who had legal own- Adult buffalo and beefalo cow means a ership of the livestock for which bene- female animal of those breeds that had fits are being requested under this sub- delivered one or more offspring before part on the beginning date of the appli- the beginning date of the applicable cable disaster period as set forth in disaster period. A first-time bred buf- § 760.1001. falo or beefalo heifer is also considered Poultry means a domesticated chick- to be an adult buffalo or beefalo cow if en, turkey, duck, or goose. Poultry are it was pregnant on the beginning date further delineated by sex, age and pur- of the disaster period. pose of production, as determined by Adult dairy bull means a male dairy FSA. bovine breed animal at least 2 years old Sheep means a domesticated, rumi- used primarily for breeding dairy cows nant mammal of the genus Ovis. on the beginning date of the disaster Swine means a domesticated omnivo- period. rous pig, hog, and boar. Swine are fur- Adult dairy cow means a female bo- ther delineated by sex and weight as vine animal used for the purpose of determined by FSA. providing milk for human consumption that had delivered one or more off- § 760.1103 Eligible livestock and pro- spring before the beginning date of the ducers. applicable disaster period. A first-time (a) To be considered eligible live- bred dairy heifer is also considered an stock to generate benefits under this adult dairy cow if it was pregnant on subpart, livestock must meet all the the beginning date of the disaster pe- following conditions: riod. (1) Be adult or non-adult dairy cattle, Agricultural operation means a farm- beef cattle, buffalo, beefalo, equine, ing operation. poultry, elk, reindeer, sheep, goats, Application means the ‘‘2005/2006/2007 swine, or deer; Livestock Compensation Program’’ (2) Been physically located in the eli- form. gible disaster county on the beginning Application period means the date es- date of the disaster period; tablished by the Deputy Administrator (3) Been maintained for commercial for Farm Programs for participants to use as part of the producer’s farming apply for program benefits. operation on the beginning date of the Disaster period means the applicable disaster period; and disaster period specified in § 760.1001. (4) Not have been produced and main- Equine animal means a domesticated tained for reasons other than commer- horse, mule, or donkey. cial use as part of a farming operation. Goat means a domesticated, rumi- Such excluded uses include, but are not nant mammal of the genus Capra, in- limited to, wild free roaming animals cluding Angora goats. or animals used for recreational pur- Non-adult beef cattle means a bovine poses, such as pleasure, roping, hunt- animal that weighed 500 pounds or ing, pets, or for show. more on the beginning date of the dis- (b) To be considered an eligible live- aster period, but does not meet the def- stock producer, the participant’s eligi- inition of an adult beef cow or bull. ble livestock must have been located in

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the eligible disaster county on the be- ticipant’s normal business operation, ginning date of the disaster period. To as determined by FSA; be eligible, also, the livestock producer (2) Emus; must have: (3) Yaks; (1) Owned or cash-leased eligible live- (4) Ostriches; stock on the beginning date of the dis- (5) Llamas; aster period (provided that if there is a (6) All beef and dairy cattle, and buf- cash lease, only the cash lessee and not falo and beefalo that weighed less than the owner will be eligible); and 500 pounds on the beginning date of the (2) Suffered any of the following: disaster period; (i) A grazing loss on eligible grazing (7) Any wild free roaming livestock, lands physically located in the eligible including horses and deer; disaster county, where the forage was (8) Livestock produced or maintained damaged or destroyed by an eligible for reasons other than commercial use disaster event, and intended for use as as part of a farming operation, includ- feed for the participant’s eligible live- ing, but not limited to, livestock pro- stock; duced or maintained for recreational (ii) A loss of feed from forage or purposes, such as: feedstuffs physically located in the eli- (i) Roping, gible disaster county, that was me- (ii) Hunting, chanically harvested and intended for (iii) Show, use as feed for the participant’s eligible (iv) Pleasure, livestock, that was damaged or de- (v) Use as pets, or stroyed after harvest as the result of (vi) Consumption by owner. an eligible disaster event; § 760.1104 Application for payment. (iii) A loss of feed from purchased forage or feedstuffs physically located (a) To apply for 2005–2007 LCP, an ap- in the eligible disaster county, in- plication and required supporting docu- tended for use as feed for the partici- mentation must be submitted to the pant’s eligible livestock, that was dam- administrative county FSA office. aged or destroyed by an eligible dis- (b) The application must be filed dur- aster event; or ing the application period announced (iv) Increased feed costs incurred in by the Deputy Administrator for Farm the eligible disaster county, due to an Programs. eligible disaster event, to feed the par- (c) Payments may be made for eligi- ticipant’s eligible livestock. ble losses suffered by an eligible live- (c) The eligible livestock categories stock producer who is now a deceased are: individual or is a dissolved entity if a (1) Adult beef cows or bulls; representative who currently has au- (2) Non-adult beef cattle; thority to enter into a contract, on behalf of the livestock producer, signs (3) Adult buffalo or beefalo cows or the application for payment. Legal bulls; documents showing proof of authority (4) Non-adult buffalo or beefalo; to sign for the deceased individual or (5) Adult dairy cows or bulls; dissolved entity must be provided. If a (6) Non-adult dairy cattle; participant is now a dissolved general (7) Goats; partnership or joint venture, all mem- (8) Sheep; bers of the general partnership or joint (9) Equine; venture at the time of dissolution or (10) Reindeer; their duly authorized representatives (11) Elk; must sign the application for payment. (12) Poultry; and (d) Data furnished by the participant (13) Deer. will be used to determine eligibility for (d) Ineligible livestock include, but program benefits. Furnishing the data are not limited to, livestock: is voluntary; however, without all re- (1) Livestock that were or would have quired data program benefits will not been in a feedlot regardless of whether be approved or provided. there was a disaster or where such live- (e) A minor child is eligible to apply stock were in a feedlot as part of a par- for program benefits if all eligibility

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requirements are met and one of the vided in subpart K of this part, a pro- following conditions exists: ducer may receive benefits for only one (1) The right of majority has been of the three program years, 2005, 2006, conferred upon the minor by court pro- or 2007. The producer must indicate ceedings or statute; which year has been chosen. Payments (2) A guardian has been appointed to are available only with respect to dis- manage the minor’s property, and the aster-related fees losses in the period applicable program documents are exe- from January 2, 2005 through February cuted by the guardian; or 27, 2007, in eligible counties for losses (3) A bond is furnished under which a during the times specified for the dis- surety guarantees any loss incurred for aster periods as specified in which the minor would be liable had § 760.1001(b). the minor been an adult. (b) The preliminary LCP payment calculated in accordance with para- § 760.1105 Application process. graph (a) of this section: (a) Participants must submit to FSA: (1) For 2005 LCP provided for under (1) A completed application in ac- this subpart will be reduced by the cordance with § 760.1104; amount the participant received for (2) Adequate proof, as determined by the specific livestock under the Feed FSA, that the feed lost: Indemnity Program in accordance with (i) Was for the claimed eligible live- subpart D of this part and LCP for the stock; 2005 hurricanes under subpart B of part (ii) Was lost as a direct result of an 1416 of this title; and eligible disaster event during an eligi- (2) For 2006 LCP under this subpart ble disaster period specified in will be reduced by the amount the par- § 760.1001; ticipant received for the same or simi- (iii) Was lost after January 1, 2005, lar loss under the Livestock Assistance but before February 28, 2007; and Grant Program in accordance with sub- (iv) Occurred in the calendar year for part H of this part. which benefits are being requested; and (c) Subject to such other limitations (3) Any other supporting documenta- as may apply, including those in para- tion as determined by FSA to be nec- graph (b) of this section, the payment essary to make a determination of eli- under the 2005–2007 LCP may not ex- gibility of the participant. Supporting ceed for the relevant year chosen by documents include, but are not limited the producer the smaller of either the: to: verifiable purchase records; veteri- (1) Payment calculated in paragraph narian records; bank or other loan pa- (a) of this section for that year; or pers; rendering truck receipts; Federal (2) Value of the producer’s eligible Emergency Management Agency feed loss, increased feed costs, or forage records; National Guard records; writ- or grazing loss as determined by FSA ten contracts; production records; In- for that year. ternal Revenue Service records; prop- (d) The actual payment to the pro- erty tax records; private insurance doc- ducer will be the amount provided for uments; sales records, and similar doc- in paragraph (c) of this section subject uments determined acceptable by FSA. to the adjustments and limits provided (b) [Reserved] for in this section or in this part.

§ 760.1106 Payment calculation. § 760.1107 Appeals. (a) Preliminary, unadjusted LCP pay- The appeal regulations in parts 11 ments are calculated for a producer by and 780 of this title apply to determina- multiplying the national payment rate tions made under this subpart. for each livestock category, as provided in paragraph (c) of this section, § 760.1108 Offsets, assignments, and by the number of eligible livestock for debt settlement. the producer in each category. The na- (a) Any payment to any participant tional payment rate represents the will be made without regard to any cost of the amount of corn needed to claim or lien against the commodity, maintain the specific livestock for 30 or proceeds, in favor of the owner or days, as determined by FSA. As pro- any other creditor except agencies of

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the U.S. Government. The regulations § 760.1200 Administration. governing offsets and withholdings in FSA will administer a limited 2005– parts 792 and 1403 of this title apply to 2007 CGP to provide assistance to cat- payments made under this subpart. fish producers in eligible counties that (b) Any participant entitled to any suffered catfish feed and related losses payment may assign any payments in between January 1, 2005, and February accordance with regulations governing 28, 2007, that is after January 1, 2005, the assignment of payments in part and before February 28, 2007. Under the 1404 of this chapter. 2005–2007 CGP, FSA will provide grants to State governments in those States § 760.1109 Recordkeeping and inspec- that have catfish producers that are lo- tions. cated in eligible counties and that have Participants receiving payments agreed to participate in the 2005–2007 under this subpart or any other person CGP. The amount of each grant will be who furnishes information for the pur- based on the total value of catfish feed poses of enabling the participant to re- and related losses suffered in eligible ceive a payment under this subpart counties in the subject state. Each must maintain any books, records, and State must submit a work plan pro- accounts supporting that information viding a summary of how the State will for a minimum of 3 years following the implement the 2005–2007 CGP. end of the year during which the application for payment was filed. Partici- § 760.1201 Application for payment. pants receiving payments or any other Application procedures for 2005–2007 person who furnishes the information CGP will be as determined by the State to FSA must allow authorized rep- governments. resentatives of USDA and the General Accounting Office, during regular busi- § 760.1202 Eligible producers. ness hours, and to enter upon, inspect, (a) To be considered an eligible cat- examine, and make copies of the books fish producer, an participant must: or records, and to inspect and verify all (1) Raise catfish in a controlled envi- applicable livestock and acreage in ronment and be physically located in which the participant has an interest an eligible county on the beginning for the purpose of confirming the accu- date of the disaster period; racy of the information provided by or (2) Maintain the catfish for commer- for the participant. cial use as part of a farming operation; (3) Have a risk in production of such § 760.1110 Refunds; joint and several catfish; and liability. (4) Have suffered one of the following In the event there is a failure to com- types of losses relating to catfish feed ply with any term, requirement, or as a direct result of the county’s dis- condition for payment or assistance aster event that occurred in that year: arising under this subpart, and if any (i) Physical loss of feed that was refund of a payment to FSA will other- damaged or destroyed, wise become due in connection with (ii) Cost to the extent allowed by this subpart, all payments made in re- FSA, associated with lost feeding days, gard to such matter must be refunded or to FSA together with interest and late- (iii) Cost associated with increased payment charges as provided for in feed prices. part 792 of this title, provided that in- (b) [Reserved] terest will run from the date of the dis- § 760.1203 Payment calculation. bursement of the refund to the producer. (a) Producers must be paid for feed losses of higher costs only for one of the three years, 2005, 2006, or 2007, and Subpart M—2005–2007 Catfish the loss must be for eligible catfish Grant Program feed losses in an eligible county, as determined pursuant to subpart K of this SOURCE: 72 FR 72881, Dec. 21, 2007, unless part. Further, the feed loss or higher otherwise noted. costs must be caused by the disaster

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that caused the county to qualify as an the Deputy Administrator for Farm eligible county. The loss, moreover, to Programs, FSA (who is referred to as qualify for payment, must have oc- the ‘‘Deputy Administrator’’ in this curred during the allowable time pe- part), and will be carried out by FSA’s riod provided in this part, namely the Price Support Division (PSD) and Kan- period beginning on January 2, 2005 and sas City Management Office (KCMO). ending February 27, 2007. The producer (c) FSA representatives do not have must pick the year of the benefits authority to modify or waive any of sought. the provisions of the regulations of this (b) Subject to all adjustments and subpart, except as provided in para- limits provided for in this part the graph (d) of this section. amount of assistance provided to each participant from the State will be (d) The State committee will take equal to the smaller of: any action required by the provisions (1) Depending on the year chosen by of this subpart that has not been taken the producer, the value of the partici- by the county committee. The State pant’s 2005, 2006, or 2007 catfish feed and committee will also: related losses as a direct result of an (1) Correct or require the county eligible disaster event, as determined committee to correct any action taken by the State or by the county committee that is not in (2) Result of multiplying: compliance with the provisions of this (i) Total tons of catfish feed pur- subpart. chased by the participant in depending (2) Require a county committee to on the year chosen by the producer 2005 not take an action or implement a de- (entire year), 2006 (entire year), or 2007 cision that is not in compliance with (through February 27, 2007, only), the provisions of this subpart. times, (e) No provision or delegation of this (ii) Catfish feed payment rate for subpart to PSD, KCMO, a State com- 2005, 2006, or 2007, as applicable, as set mittee, or a county committee will by FSA. preclude the Administrator, FSA, or a (c) The catfish feed rate represents 61 designee, from determining any ques- percent of the normal cost of a ton of tion arising under the program or from feed for a year divided by six to reflect reversing or modifying any determina- the normal feeding price for catfish. tion made by PSD, KCMO, a State committee, or a county committee. Subpart N—Dairy Economic Loss (f) The Deputy Administrator may Assistance Payment Program waive or modify non-statutory deadlines and other program requirements SOURCE: 74 FR 67808, Dec. 21, 2009, unless of this part in cases where lateness or otherwise noted. failure to meet other requirements § 760.1301 Administration. does not adversely affect the operation of the program. Participants have no (a) This subpart establishes, subject right to seek an exception under this to the availability of funds, the terms provision. The Deputy Administrator’s and conditions under which the Dairy refusal to consider cases or cir- Economic Loss Assistance Payments cumstances or decision not to exercise (DELAP) program as authorized by sec- the discretionary authority of this pro- tion 10104 of the Farm Security and vision will not be considered an adverse Rural Investment Act of 2002 (Pub. L. decision and is not appealable. 107–171) will be administered with respect to funds appropriated under Sec- § 760.1302 Definitions and acronyms. tion 748 of the Agriculture, Rural De- velopment, Food and Drug Administra- The following definitions apply to tion, and Related Agencies Appropria- this subpart. The definitions in parts tions Act, 2010 (2010 Agriculture Appro- 718 and 1400 of this title also apply, ex- priations Bill, Pub. L. 111–80). cept where they may conflict with the (b) The DELAP program will be ad- definitions in this section. ministered under the general super- County office or FSA county office vision of the Administrator, FSA, and means the FSA offices responsible for

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administering FSA programs in a spe- ation is eligible to be paid under this cific areas, sometimes encompassing subpart. more than one county, in a State. Producer means any individual, group Dairy operation means any person or of individuals, partnership, corpora- group of persons who, as a single unit, tion, estate, trust association, coopera- as determined by FSA, produce and tive, or other business enterprise or market milk commercially produced other legal entity, as defined in 7 CFR from cows, and whose production facili- 1400.3, who is, or whose members are, a ties are located in the United States. citizen of or legal resident alien in the In any case, however, dairy operation United States, and who directly or in- may be given by the agency the same directly, as determined by the Sec- meaning as the definition of dairy op- retary, shares in the risk of producing eration as found in part 1430 of this milk, and who is entitled to a share of title for other dairy assistance pro- the commercial production available grams. for marketing from the dairy oper- Department or USDA means the U. S. ation. This term, and other terms in Department of Agriculture. this subpart, will in any case be applied Deputy Administrator means the Dep- in a way that allows MILC records to uty Administrator for Farm programs be used to make DELAP payments. (DAFP), FSA, or a designee. United States means the 50 States of Eligible production means milk from the United States of America, the Dis- cows that was produced during Feb- trict of Columbia, the Commonwealth ruary through July 2009, by a dairy of Puerto Rico, and any other territory producer in the United States and mar- or possession of the United States. keted commercially by a producer in a Verifiable production records means participating State. evidence that is used to substantiate Farm Service Agency or FSA means the the amount of production marketed Farm Service Agency of the USDA. commercially by a dairy operation and Fiscal year or FY means the year be- its producers and that can be verified ginning October 1 and ending the fol- by FSA through an independent source. lowing September 30. The fiscal year will be designated for this subpart by § 760.1303 Requesting benefits. year reference to the calendar year in (a) If as a dairy operation or pro- which it ends. For example, FY 2009 is ducer, your records are currently avail- from October 1, 2008, through Sep- able in the FSA county office from pre- tember 30, 2009 (inclusive). vious participation in a fiscal year 2009 Marketed commercially means sold to dairy program administered by FSA, the market to which the dairy oper- you do not need to request benefits ation normally delivers whole milk and under this subpart to receive pay- receives a monetary amount and in any ments. FSA will make payments as case this term will be construed to specified in this subpart to eligible allow the use of MILC records in mak- dairy producers based on production ing DELAP payments. data maintained by the FSA county of- Milk handler means the marketing fice for the months of February agency to or through which the dairy through July 2009. operation commercially markets whole (b) If records are not available in the milk. FSA county office, dairy producers Milk marketing means a marketing of may request benefits. The request for milk for which there is a verifiable benefits may be a letter or email; no sales or delivery record of milk mar- specific form is required. keted for commercial use. (1) Submit your request for DELAP Participating State means each of the to: Deputy Administrator for Farm 50 States in the United States of Amer- Programs, FSA, USDA, STOP 0512, 1400 ica, the District of Columbia, and the Independence Avenue, SW., Wash- Commonwealth of Puerto Rico, or any ington, DC 20250–0512; Attention: other territory or possession of the DELAP Program. Or you may send United States. your request for DELAP via fax to (202) Payment quantity means the pounds 690–1536 or e-mail to of milk production for which an oper- [email protected].

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(2) The complete request as described audit by FSA. Further verification in- in this subpart must be received by formation may be obtained from the FSA by the close of business on Janu- dairy operation’s milk handler or mar- ary 19, 2010. keting cooperative if necessary for (3) The complete request for benefits FSA to verify provided information. must include all of the following: Refusal to allow FSA or any other (i) The name and location of the USDA agency to verify any informa- dairy operation; tion provided or the inability of FSA to (ii) Contact information for the dairy verify such information will result in a operation, including telephone number; determination of ineligibility for bene- (iii) Name, percentage share, and tax fits under this subpart. identification number for the entity or (d) Data furnished by dairy producers individual producer’s receiving a share and dairy operations, subject to of the payment; and verification, will be used to determine (iv) Proof of production (acceptable eligibility for program benefits. Al- documentation as specified in though participation in the DELAP § 760.1305). program is voluntary, program benefits (4) Requests for benefits and related will not be provided unless a producer documents not provided to FSA as re- or operation furnishes all requested quired by this subpart, will not be ap- data or such data is already recorded proved. at the FSA county office. (5) If not already provided and available to FSA, the dairy producer or § 760.1304 Eligibility. dairy operation must provide documentation to support: (a) Payment under DELAP will only (i) The amount (quantity in pounds) be made to producers, but the dairy of milk produced by the dairy oper- ‘‘operation’’ must first qualify its pro- ation during the months of February duction within limits provided for in 2009 through July 2009; this subpart in order to have the indi- (ii) Percentage share of milk produc- viduals or entities that qualify as tion during February through July 2009 ‘‘producers’’ receive payment subject attributed to each producer in the to whatever additional limits (such as dairy operation; and the adjusted gross income provisions of (iii) Average adjusted gross income these regulations) apply. As needed the for each individual or entity with a agency may construe the terms of this share in the operation and any addi- regulation in any manner needed to fa- tional entities or individuals as needed cilitate and expedite payments using to apply the adjusted gross income existing data and records from other rules of these regulations. assistance programs. Further, those (6) Each dairy producer requesting parties (State and local governments benefits under this subpart is respon- and their political subdivisions and re- sible for providing accurate and truth- lated agencies) excluded from the ful information and any supporting MILC program will not be eligible for documentation. If the dairy operation DELAP payments notwithstanding any provides the required information, other provision of these regulation. each dairy producer who shares in the That said, to be eligible to receive pay- risk of a dairy operation’s total pro- ments under this subpart, a dairy production is responsible for the accuracy ducer in the United States must: and truthfulness of the information (1) Have produced milk in the United submitted for the request for benefits States and commercially marketed the before the request will be considered milk produced any time during Feb- complete. Providing a false statement, ruary 2009 through July 2009; request, or certification to the Govern- (2) Be a producer, as defined in ment may be punishable by imprison- § 760.1302; ment, fines, other penalties, or sanc- (3) Provide FSA with proof of milk tions. production commercially marketed by (c) All information provided by the all dairy producers in the dairy oper- dairy producer or dairy operation is ation during February 2009 through subject to verification, spot check, and July 2009; and

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(4) Submit an accurate and complete Supporting documentation may be pro- request for benefits as specified in vided by either the dairy producer or § 760.1303, if production data is not by the dairy operation for each of its available in the FSA county office. producers. Examples of supporting doc- (b) To be eligible to receive a pay- umentation may include, but are not ment, each producer in an eligible limited to: Milk marketing payment dairy operation must meet the average stubs, tank records, milk handler adjusted gross income eligibility re- records, daily milk marketings, copies quirements of 7 CFR part 1400. No per- of any payments received as compensa- son or entity will be eligible to receive tion from other sources, or any other any payment or direct or indirect ben- documents available to confirm the efit under this subpart if their annual production and production history of average adjusted nonfarm income is the dairy operation. Dairy operations over $500,000 as determined under 7 and producers may also be required to CFR part 1400. In the case of indirect allow FSA to examine the herd of cat- benefits, direct benefits to other par- tle as production evidence. If sup- ties will be reduced accordingly. This porting documentation requested is not will mean that all of the attribution presented to FSA, the request for bene- rules of part 1400 will apply. For exam- fits will be denied. ple if Individual A is over the limit and owns 100 percent of Corporation C § 760.1306 Availability of funds. which had a 20 percent interest in Cor- (a) Payments under this subpart are poration B which had a 50 percent in- subject to the availability of funds. terest in milk producer Corporation A, The total available program funds are the AGI of Individual A would result in $290,000,000. a 10 percent (100 percent times 20 percent times 50 percent) loss in benefits (b) FSA will prorate the available to Corporation A. For DELAP, the rel- funds by a national factor to ensure evant period for the annual average ad- payments do not exceed $290,000,000. justed nonfarm income is 2005 through The payment will be made based on the 2007. national payment rate as determined (1) Individual dairy producers in a by FSA. FSA will prorate the pay- dairy operation that is an entity are ments based on the amount of milk only eligible for a payment based on production eligible for payments in a their share of the dairy operation. fair and reasonable manner. (2) No payment will be made to any (c) A reserve will be created to han- other producer based on the share of dle new applications, appeals, and er- any dairy producer who exceeds the in- rors. come limit or who, because of the attribution rules, has their payment re- § 760.1307 Dairy operation payment quantity. duced. (a) A dairy operation’s payment § 760.1305 Proof of production. quantity (the quantity of milk on (a) Dairy producers requesting bene- which the ‘‘operation’’ can generate fits must, as required by this subpart, payments for ‘‘producers’’ involved in provide adequate proof of the dairy op- the operation) will be determined by eration’s eligible production during the FSA, based on the pounds of produc- months of February through July 2009, tion of commercially marketed milk if those records are not already avail- during the months of February 2009 able at the FSA county office. The through July 2009, multiplied by two. dairy operation must also provide proof (b) The maximum payment quantity that the eligible production was also for which a dairy operation can gen- commercially marketed during the erate payments for its dairy producers same period. under this subpart will be 6,000,000 (b) To be eligible for payment, dairy pounds. producers marketing milk during Feb- (c) The dairy operation’s payment ruary through July 2009 must provide quantity will be used to determine the any required supporting documents to amount of DELAP payments made to assist FSA in verifying production. dairy producers.

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§ 760.1308 Payment rate. § 760.1311 Death, incompetence, or dis- (a) A national per-hundredweight appearance. payment rate will be calculated by di- (a) In the case of the death, incom- viding the available funding, less a re- petency, or disappearance of a person serve established by FSA, by the total or the dissolution of an entity that is pounds of eligible production approved eligible to receive benefits in accord- for payment. ance with this subpart, such alternate (b) Each eligible dairy producer’s person or persons specified in 7 CFR payment with respect to an operation part 707 may receive such benefits, as will be calculated by multiplying the determined appropriate by FSA. payment rate determined in paragraph (b) Payments may be made to an oth- (a) of this section by the dairy pro- erwise eligible dairy producer who is ducer’s share in the dairy operation’s now deceased or to a dissolved entity if eligible production payment quantity a representative who currently has au- as determined in accordance with sec- thority to enter into an application for tion § 760.1307. the producer or the producer’s estate (c) In the event that approval of all makes the request for benefits as speci- eligible requests for benefits would re- fied in § 760.1303. Proof of authority sult in expenditures in excess of the over the deceased producer’s estate or amount available, FSA will reduce the a dissolved entity must be provided. payment rate in a manner that FSA (c) If a dairy producer is now a dis- determines to be fair and reasonable. solved general partnership or joint venture, all members of the general part- § 760.1309 Appeals. nership or joint venture at the time of The appeal regulations set forth at 7 dissolution or their duly authorized CFR parts 11 and 780 apply to deter- representatives must be identified in minations made under this subpart. the request for benefits.

§ 760.1310 Misrepresentation and § 760.1312 Maintaining records. scheme or device. (a) In addition to other penalties, (a) Persons requesting benefits under sanctions or remedies as may apply, a this subpart must maintain records dairy producer or operation will be in- and accounts to document all eligi- eligible to receive benefits under this bility requirements specified in this subpart if the producer or operation is subpart. Such records and accounts determined by FSA to have: must be retained for 3 years after the (1) Adopted any scheme or device date of payment to the dairy producer that tends to defeat the purpose of this under this subpart. subpart; (b) Destruction of the records after 3 (2) Made any fraudulent representa- years from the date of payment will be tion; or at the decision and risk of the party (3) Misrepresented any fact affecting undertaking the destruction. a program determination. (b) Any payment to any person or op- § 760.1313 Refunds; joint and several eration engaged in a misrepresenta- liability. tion, scheme, or device, must be re- (a) Any dairy producer that receives funded with interest together with excess payment, payment as the result such other sums as may become due. of erroneous information provided by Any dairy operation or person engaged any person, or payment resulting from in acts prohibited by this section and a failure to comply with any require- receiving payment under this subpart ment or condition for payment under will be jointly and severally liable with this subpart, must refund the amount other producers or operations involved of that payment to FSA. in such claim for benefits for any re- (b) Any refund required will be due fund due under this section and for re- from the date of the disbursement by lated charges. The remedies provided the agency with interest determined in in this subpart will be in addition to accordance with paragraph (d) of this other civil, criminal, or administrative section and late payment charges as remedies that may apply. provided in 7 CFR part 1403.

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(c) Each dairy producer that has an Subpart O—Agricultural Disaster interest in the dairy operation will be Indemnity Programs jointly and severally liable for any refund and related charges found to be due to FSA. SOURCE: 83 FR 33801, July 18, 2018, unless otherwise noted. (d) Interest will be applicable to any refunds to FSA required in accordance § 760.1500 Applicability. with 7 CFR parts 792 and 1403. Such interest will be charged at the rate that (a) This subpart specifies the terms the U.S. Department of the Treasury and conditions for the 2017 Wildfires charges FSA for funds, and will accrue and Hurricanes Indemnity Program from the date FSA made the payment (2017 WHIP) and the Wildfires and Hur- to the date the refund is repaid. ricanes Indemnity Program Plus (WHIP+). (e) FSA may waive the accrual of interest if it determines that the cause of (b) The 2017 WHIP provides disaster the erroneous payment was not due to assistance for necessary expenses re- any action of the person or entity, or lated to crop, tree, bush, and vine was beyond the control of the person or losses related to the consequences of entity committing the violation. Any wildfires, hurricanes, and Tropical waiver is at the discretion of FSA Storm Cindy that occurred in calendar alone. year 2017, and for losses of peach and blueberry crops in calendar year 2017 § 760.1314 Miscellaneous provisions. due to extreme cold, and blueberry productivity losses in calendar year 2018 (a) Offset. FSA may offset or with- due to extreme cold and hurricane hold any amount due to FSA from any damage in calendar year 2017. benefit provided under this subpart in (c) WHIP+ provides disaster assist- accordance with the provisions of 7 ance for necessary expenses related to CFR part 1403. losses of crops, trees, bushes, and vines, (b) Claims. Claims or debts will be as a consequence of Hurricanes Michael settled in accordance with the provi- and Florence, other hurricanes, floods, sions of 7 CFR part 1403. tornadoes, typhoons, volcanic activity, (c) Other interests. Payments or any snowstorms, and wildfires occurring in portion thereof due under this subpart calendar years 2018 and 2019. will be made without regard to questions of title under State law and with- [84 FR 48528, Sept. 13, 2019] out regard to any claim or lien against the milk production, or proceeds there- § 760.1501 Administration. of, in favor of the owner or any other (a) Programs under this subpart are creditor except agencies and instru- administered under the general super- mentalities of the U.S. Government. vision of the Administrator, Farm (d) Assignments. Any dairy producer Service Agency (FSA), and the Deputy entitled to any payment under this Administrator for Farm Programs, part may assign any payments in ac- FSA. Programs under this subpart are cordance with the provisions of 7 CFR carried out by FSA State and county part 1404. committees with instructions issued by (e) Violations of highly erodible land the Deputy Administrator. and wetland conservation provisions. The (b) FSA State and county commit- provisions of part 12 of this title apply tees, and representatives and their em- to this subpart. That part sets out cer- ployees, do not have authority to mod- tain conservation requirements as a ify or waive any of the provisions of general condition for farm benefits. the regulations in this subpart or in- (f) Violations regarding controlled sub- structions issued by the Deputy Ad- stances. The provisions of § 718.6 of this ministrator. title, which generally limit program (c) The FSA State committee will payment eligibility for persons who take any action required by the regula- have engaged in certain offenses with tions in this subpart that the FSA respect to controlled substances, will county committee has not taken. The apply to this subpart. FSA State committee will also:

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(1) Correct, or require an FSA county (2) For a NAP covered crop, excluding committee to correct, any action taken crops located in Puerto Rico, the ap- by the FSA county committee that is proved yield for the disaster year; not in accordance with the regulations (3) For a crop located in Puerto Rico in this subpart; or or an uninsured crop, excluding citrus (2) Require an FSA county com- crops located in Florida, the county ex- mittee to withhold taking any action pected yield for the disaster year; and that is not in accordance with this sub- (4) For citrus crops located in Flor- part. ida, the yield based on documentation (d) No delegation to an FSA State or submitted according to § 760.1511(c)(3), county committee precludes the FSA or if documentation is not submitted, Administrator, the Deputy Adminis- the county expected yield. trator, or a designee, from determining Actual production means the total any question arising under this subpart quantity of the crop appraised, har- or from reversing or modifying any de- vested, or assigned, as determined by termination made by an FSA State or the FSA State or county committee in county committee. accordance with instructions issued by (e) The Deputy Administrator has the Deputy Administrator. the authority to permit State and Administrative county office means the county committees to waive or modify FSA county office designated to make a non-statutory deadline specified in determinations, handle official records, this part. and issue payments for the farm as (f) Items of general applicability to specified in accordance part 718 of this program participants, including, but title. not limited to, application periods, ap- Appraised production means the plication deadlines, internal operating amount of production determined by guidelines issued to FSA State and FSA, or a company reinsured by the county offices, prices, yields, and pay- Federal Crop Insurance Corporation ment factors established under this (FCIC), that was unharvested but was subpart, are not subject to appeal in determined to reflect the crop’s yield accordance with part 780 of this chap- potential at the time of appraisal. ter. Approved yield means the amount of production per acre, computed as speci- [83 FR 33801, July 18, 2018, as amended 84 FR fied in FCIC’s Actual Production His- 48528, Sept. 13, 2019] tory (APH) Program in part 400, subpart G of this title or, for crops not in- § 760.1502 Definitions. cluded in part 400, subpart G of this The following definitions apply to title, the yield used to determine the this subpart. The definitions in §§ 718.2 guarantee. For crops covered under and 1400.3 of this title also apply, ex- NAP, the approved yield is established cept where they conflict with the defi- according to part 1437 of this title. nitions in this section. In the event of Average adjusted gross farm income conflict, the definitions in this section means the average of the portion of ad- apply. justed gross income of the person or 2017 WHIP factor means the factor in legal entity that is attributable to ac- § 760.1511, determined by the Deputy tivities related to farming, ranching, Administrator, that is based on the or forestry. The relevant tax years are: crop insurance or NAP coverage level (1) For 2017 WHIP, 2013, 2014, and 2015; elected by the 2017 WHIP participant and for a crop for which a payment is being (2) For WHIP+, 2015, 2016, and 2017. requested; or, as applicable, the factor Average adjusted gross income means that applies for a crop of a crop year the average of the adjusted gross in- where the participant had no insurance come as defined under 26 U.S.C. 62 or or NAP coverage. comparable measure of the person or 2017 WHIP yield means, for a unit: legal entity. The relevant tax years (1) For an insured crop, excluding are: crops located in Puerto Rico, the ap- (1) For 2017 WHIP, 2013, 2014, and 2015; proved federal crop insurance APH, for and the disaster year; (2) For WHIP+, 2015, 2016, and 2017.

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Bush means, a low, branching, woody cording to the applicable crop insur- plant, from which at maturity of the ance policy; bush, an annual fruit or vegetable crop (2) For NAP eligible crops, the crop is produced for commercial market for year as defined in § 1437.3 of this title; human consumption, such as a blue- (3) For uninsurable trees, bushes, and berry bush. The definition does not vines, the calendar year in which the cover nursery stock or plants that qualifying disaster event occurred. produce a bush after the normal crop is Damage factor means a percentage of harvested. the value lost when a tree, bush, or Buy-up NAP coverage means NAP cov- vine is damaged and requires rehabili- erage at a payment amount that is tation but is not completely destroyed, equal to an indemnity amount cal- as determined by the Deputy Adminis- culated for buy-up coverage computed trator. under section 508(c) or (h) of the Fed- Eligible crop means a crop for which eral Crop Insurance Act and equal to coverage was available either from the amount that the buy-up coverage FCIC under part 400 of this title, or yield for the crop exceeds the actual through NAP under § 1437.4 of this title, yield for the crop. that was affected by a qualifying dis- Catastrophic coverage has the meaning aster event. as defined in § 1437.3 of this title. Eligible disaster event means a disaster Citrus crops and citrus trees include event that was: grapefruit, lemon, lime, Mandarin, (1) For insured crops, an eligible Murcott, orange (all types), pummelo cause of loss under the applicable crop (pomelo), tangelo, tangerine, tangor. insurance policy for the crop year; County disaster yield means the aver- (2) For NAP covered crops and unin- age yield per acre calculated for a sured crops, an eligible cause of loss as county or part of a county for the ap- specified in § 1437.10 of this title. plicable crop year based on disaster End use means the purpose for which events, and is intended to reflect the the harvested crop is used, such as amount of production that a partici- grain, hay, or seed. pant would have been expected to make Expected production means, for an ag- based on the eligible disaster condi- ricultural unit, the historic yield mul- tions in the county or area, as deter- tiplied by the number of planted or pre- mined by the FSA county committee vented planted acres of the crop for the in accordance with instructions issued unit. by the Deputy Administrator. FCIC means the Federal Crop Insur- County expected yield has the meaning ance Corporation, a wholly owned Gov- assigned in § 1437.102(b) of this title. ernment Corporation of USDA, admin- Coverage level means the percentage istered by RMA. determined by multiplying the elected Final planting date means the latest yield percentage under a crop insur- date, established by RMA for insurable ance policy or NAP coverage by the crops, by which the crop must initially elected price percentage. be planted in order to be insured for Crop insurance means an insurance the full production guarantee or policy reinsured by FCIC under the amount of insurance per acre. For NAP provisions of the Federal Crop Insur- eligible crops, the final planting date is ance Act, as amended. It does not in- as defined in § 1437.3 of this title. clude private plans of insurance. Growth stage means a classification Crop insurance indemnity means, for system for trees, bushes, and vines the purpose of this subpart, the pay- based on a combination of age and pro- ment to a participant for crop losses duction capability, determined by: covered under crop insurance adminis- (1) The applicable insurance policy tered by RMA in accordance with the for insurable trees, bushes, and vines; Federal Crop Insurance Act (7 U.S.C. or 1501–1524). (2) The Deputy Administrator for Crop year means: trees, bushes, and vines for which RMA (1) For insurable crops, trees, bushes, does not offer an insurance policy. and vines, the crop year as defined ac- Harvested means:

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(1) For insurable crops, harvested as Planted acreage means land in which defined according to the applicable seed, plants, or trees have been placed, crop insurance policy; appropriate for the crop and planting (2) For NAP eligible single harvest method, at a correct depth, into a seed- crops, that a crop has been removed bed that has been properly prepared for from the field, either by hand or me- the planting method and production chanically; practice normal to the USDA plant (3) For NAP eligible crops with po- hardiness zone as determined by the tential multiple harvests in 1 year or county committee. harvested over multiple years, that the Prevented planting means the inabil- producer has, by hand or mechanically, ity to plant an eligible crop with prop- removed at least one mature crop from er equipment during the planting pe- the field during the crop year; riod as a result of an eligible cause of (4) For mechanically-harvested NAP loss, as determined by FSA. eligible crops, that the crop has been Price means price per unit of the crop removed from the field and placed in a or commodity and will be: truck or other conveyance, except hay (1) For an insured crop under a crop is considered harvested when in the insurance policy that establishes a bale, whether removed from the field price, and under WHIP+, the price for a or not. Grazed land will not be consid- crop for which the producer obtained a ered harvested for the purpose of deter- revenue plan of insurance is the great- mining an unharvested or prevented er of the projected price or the harvest planting payment factor. price to determine liability, that estab- Insurable crop means an agricultural lished price; crop (excluding livestock) for which (2) For an insured crop under a crop the producer on a farm is eligible to ob- insurance policy that does not estab- tain a policy or plan of insurance under lish a price to determine crop insur- the Federal Crop Insurance Act (7 ance liability, the county average U.S.C. 1501–1524). price, as determined by FSA; Multi-use crop means a crop intended (3) For a NAP covered crop or unin- for more than one end use during the sured crop, the average market price crop year such as grass harvested for determined in § 1437.12 of this title; or seed, hay, and grazing. (4) For a tree, bush, or vine, the price Multiple cropping means the planting determined by the Deputy Adminis- of two or more different crops on the trator based on the species of tree, same acreage for harvest within the bush, or vine and its growth stage. same crop year. Production means quantity of the Multiple planting means the planting crop or commodity produced expressed for harvest of the same crop in more in a specific unit of measure including, than one planting period in a crop year but not limited to, bushels or pounds. on different acreage. Production under this subpart includes NASS means the National Agricul- all harvested production, unharvested tural Statistics Service. appraised production, and assigned pro- NAP means the Noninsured Crop Dis- duction for the total planted acreage of aster Assistance Program under sec- the crop on the unit. tion 196 of the Federal Agriculture Im- Qualifying disaster event means: provement and Reform Act of 1996 (7 (1) For 2017 WHIP, a hurricane, wild- U.S.C. 7333) and part 1437 of this title. fire, or Tropical Storm Cindy or re- NAP covered crop means a crop for lated condition that occurred in the which the producer on a farm obtained 2017 calendar year; extreme cold in cal- NAP coverage. endar year 2017 for losses of peach and NAP eligible crop means an agricul- blueberry crops in calendar year 2017; tural crop for which the producer on a and extreme cold and hurricane dam- farm is eligible to obtain NAP cov- age in calendar year 2017 for blueberry erage. productivity losses in calendar year NAP service fee means the amount the 2018; and producer must pay to obtain NAP cov- (2) For WHIP+, a hurricane, flood, erage. tornado, typhoon, volcanic activity,

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snowstorm, wildfire, or related condi- § 1437.9 of this title, for ornamental tion that occurred in the 2018 or 2019 nursery production, includes all eligi- calendar year. ble plant species and sizes. Related condition means damaging Unit of measure means: weather or an adverse natural occur- (1) For insurable crops, the FCIC-es- rence that occurred as a direct result tablished unit of measure; and of a specified qualifying disaster event, (2) For NAP eligible crops, the estab- as determined by FSA, such as exces- lished unit of measure used for the sive rain, high winds, flooding, NAP price and yield. mudslides, and heavy smoke, as deter- USDA means the U.S. Department of mined by the Deputy Administrator. Agriculture. Repeat crop means, with respect to USDA Plant Hardiness Zone means the production, a commodity that is plant- 11 regions or planting zones as defined ed or prevented from being planted in by a 10 degree Fahrenheit difference in more than one planting period on the the average annual minimum tempera- same acreage in the same crop year. ture. RMA means the Risk Management Value loss crop has the meaning speci- Agency. fied in subpart D, of part 1437 of this Salvage value means the dollar title. amount or equivalent for the quantity Vine means a perennial plant grown of the commodity that cannot be mar- under normal conditions from which an keted or sold in any recognized market annual fruit crop is produced for com- for the crop. mercial market for human consump- Secondary use means the harvesting tion, such as grape, kiwi, or passion of a crop for a use other than the in- fruit, and that has a flexible stem sup- tended use. ported by climbing, twining, or creep- Secondary use value means the value ing along a surface. Nursery stock, determined by multiplying the quan- perennials that are normally propa- tity of secondary use times the FSA-es- gated as annuals such as tomato tablished price for that use. plants, biennials such as strawberry Tree means a tall, woody plant hav- plants, and annuals such as pumpkin, ing comparatively great height, and a squash, cucumber, watermelon, and single trunk from which an annual other melon plants, are excluded from crop is produced for commercial mar- the term vine in this subpart. ket for human consumption, such as a WHIP+ factor means the factor in maple tree for syrup, or papaya or or- § 760.1511, determined by the Deputy chard tree for fruit. It includes imma- Administrator, that is based on the ture trees that are intended for com- crop insurance or NAP coverage level mercial purposes. Nursery stock, ba- elected by the WHIP+ participant for a nana and plantain plants, and trees crop for which a payment is being re- used for pulp or timber are not consid- quested; or, as applicable, the factor ered eligible trees under this subpart. that applies for a crop during a crop Tropical crops is defined in § 1437.501 of year in which the participant had no this title. insurance or NAP coverage. Tropical region is defined in § 1437.502 WHIP+ yield means, for a unit: of this title. (1) For an insured crop, excluding Unharvested payment factor means a crops located in Puerto Rico, the ap- percentage established by FSA for a proved federal crop insurance APH, for crop and applied in a payment formula the crop year; to reduce the payment for reduced ex- (2) For a NAP covered crop, excluding penses incurred because commercial crops located in Puerto Rico, the ap- harvest was not performed. proved yield for the crop year; Uninsured means a crop that was not (3) For a crop located in Puerto Rico covered by crop insurance or NAP for or an uninsured crop, excluding select the crop year for which a payment is crops, the county expected yield for the being requested under this subpart. crop year; and Unit means, unless otherwise deter- (4) For select crops, the yield based mined by the Deputy Administrator, on documentation submitted according basic unit as defined in part 457 or to § 760.1511(c)(3), or if documentation is

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not submitted, the county expected mined to have an ownership share of yield. the crop. Any verbal or written con- Yield means unit of production, meas- tract that precludes the grower from ured in bushels, pounds, or other unit having an ownership share renders the of measure, per area of consideration, grower ineligible for payments under usually measured in acres. this subpart. [83 FR 33801, July 18, 2018, as amended 84 FR (e) A person or legal entity is not eli- 48529, Sept. 13, 2019] gible to receive disaster assistance under this subpart if it is determined § 760.1503 Eligibility. by FSA that the person or legal entity: (a) Participants will be eligible to re- (1) Adopted any scheme or other de- ceive a payment under this subpart vice that tends to defeat the purpose of only if they incurred a loss to an eligi- this subpart or any of the regulations ble crop, tree, bush, or vine due to a applicable to this subpart; qualifying disaster event, as further (2) Made any fraudulent representa- specified in this subpart. tion; or (b) To be an eligible participant (3) Misrepresented any fact affecting under this subpart a producer who is a a program determination under any or person or legal entity must be a: all of the following: This subpart and (1) Citizen of the United States; parts 12, 400, 1400, and 1437 of this title. (2) Resident alien; for purposes of (g) A person ineligible for crop insur- this subpart, resident alien means ance or NAP under §§ 400.458 or 1437.16 ‘‘lawful alien;’’ of this title, respectively, for any year (3) Partnership consisting of solely of is ineligible for payments under this citizens of the United States or resi- subpart for the same year. dent aliens; or (h) The provisions of § 718.11 of this (4) Corporation, limited liability title, providing for ineligibility for company, or other organizational payments for offenses involving con- structure organized under State law trolled substances, apply. consisting solely of citizens of the (i) As a condition of eligibility to re- United States or resident aliens. ceive payments under this subpart, the (c) If any person who would otherwise participant must have been in compli- be eligible to receive a payment dies ance with the Highly Erodible Land before the payment is received, pay- Conservation and Wetland Conserva- ment may be released as specified in tion provisions of part 12 of this title § 707.3 of this title. Similarly, if any for the applicable crop year for which person or legal entity who would other- the producer is applying for benefits wise been eligible to apply for a pay- under this subpart, and must not other- ment dies or is dissolved, respectively, wise be precluded from receiving pay- before the payment is applied for, payments under parts 12, 400, 1400, or 1437 ment may be released in accordance of this title or any law. with this subpart if a timely application is filed by an authorized represent- [83 FR 33801, July 18, 2018, as amended 84 FR ative. Proof of authority to sign for the 48529, Sept. 13, 2019] deceased producer or dissolved entity must be provided. If a participant is § 760.1504 Miscellaneous provisions. now a dissolved general partnership or (a) All persons with a financial inter- joint venture, all members of the gen- est in the legal entity receiving pay- eral partnership or joint venture at the ments under this subpart are jointly time of dissolution or their duly au- and severally liable for any refund, in- thorized representatives must sign the cluding related charges, which is deter- application for payment. Eligibility of mined to be due to FSA for any reason. such participant will be determined, as (b) In the event that any application it is for other participants, based upon for payment under this subpart re- ownership share and risk in producing sulted from erroneous information or a the crop. miscalculation, the payment will be re- (d) Growers growing eligible crops calculated and any excess refunded to under contract for crop owners are not FSA with interest to be calculated eligible unless the grower is also deter- from the date of the disbursement.

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(c) Any payment to any participant (d) Eligibility and payments under under this subpart will be made with- this subpart will be determined based out regard to questions of title under on a unit’s: State law, and without regard to any (1) Physical location county for in- claim or lien against the commodity, sured crops; and or proceeds, in favor of the owner or (2) Administrative county for NAP any other creditor except agencies of covered crops and uninsured crops. the U.S. Government. The regulations (e) FSA may separate or combine governing offsets and withholdings in types and varieties as a crop for eligi- part 792 of this chapter apply to pay- bility and payment purposes under this ments made under this subpart. subpart when specific credible informa- (d) Any participant entitled to any tion as determined by FSA shows the payment may assign any payment(s) in crop of a specific type or variety has a significantly different or similar value, accordance with regulations governing respectively, when compared to other the assignment of payments in part 792 types or varieties, as determined by of this chapter. the Deputy Administrator. (e) The regulations in parts 11 and 780 (f) Unless otherwise specified, all the of this title apply to determinations eligibility provisions of part 1437 of under this subpart. this title apply to value loss crops and tropical crops under this subpart. § 760.1505 General provisions. (g) The quantity or value of a crop (a) For loss calculations, the partici- will not be reduced for any quality con- pant’s unit structure will be: sideration unless a zero value is estab- (1) For an insured crop, the partici- lished based on a total loss of quality, pant’s existing unit structure estab- except as specified in § 760.1513(i). lished in accordance with part 457 of (h) FSA will use the most reliable this title; data available at the time payments (2) For a crop with NAP coverage, the under this subpart are calculated. If participant’s existing unit structure additional data or information is pro- established in accordance with part vided or becomes available after a pay- 1437 of this title; ment is issued, FSA will recalculate (3) For an uninsured crop, the par- the payment amount and the producer ticipant’s unit structure established in must return any overpayment amount accordance with part 1437 of this title. to FSA. In all cases, payments can only issue based on the payment for- (b) FSA county committees will mula for losses that affirmatively oc- make the necessary adjustments to as- curred. sign production or reduce the 2017 (i) A participant who received a pay- WHIP yield or WHIP+ yield when the ment for a loss under 2017 WHIP can- county committee determines: not: (1) An acceptable appraisal or record (1) Be paid for the same loss under of harvested production does not exist; WHIP+; or (2) The loss is due to an ineligible (2) Refund the 2017 WHIP payment to cause of loss; be eligible for payment for that loss (3) The loss is due to practices, soil under WHIP+. type, climate, or other environmental factors that cause lower yields than [83 FR 33801, July 18, 2018, as amended 84 FR 48529, Sept. 13, 2019] those upon which the historic yield is based; § 760.1506 Availability of funds and (4) The participant has a contract timing of payments. providing a guaranteed payment for all (a) For 2017 WHIP: or a portion of the crop; or (1) An initial payment will be issued (5) The crop was planted beyond the for 50 percent of each 2017 WHIP pay- normal planting period for the crop. ment calculated according to this sub- (c) Assignment of production or re- part, as determined by the Secretary. duction in yield will apply for practices The remainder of the calculated 2017 that result in lower yields than those WHIP payment will be paid to a partic- for which the historic yield is based. ipant only after the application period

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has ended and any crop insurance in- § 760.1507 Payment limitation. demnity or NAP payment the partici- (a) For any 2017 WHIP payments for pant is entitled to receive for the crop the 2017 or 2018 crop year combined, a has been calculated and reported to person or legal entity, other than a FSA, and then only if there are funds joint venture or general partnership, is available for such payment as dis- eligible to receive, directly or indi- cussed in this subpart. rectly, 2017 WHIP payments of not (2) In the event that, within the lim- more than: its of the funding made available by (1) $125,000, if less than 75 percent of the Secretary, approval of eligible ap- the person or legal entity’s average ad- plications would result in payments in justed gross income is average adjusted excess of the amount available, FSA gross farm income; or will prorate payments by a national (2) $900,000, if not less than 75 percent factor to reduce the payments to an of the average adjusted gross income of amount that is less than available the person or legal entity is average funds as determined by the Secretary. adjusted gross farm income. FSA will prorate the payments in such (b) For any WHIP+ payments, a per- manner as it determines equitable. son or legal entity, other than a joint (3) Applications and claims that are venture or general partnership, is eligi- unpaid or prorated for any reason will ble to receive, directly or indirectly, not be carried forward for payment WHIP+ payments of not more than: under other funds for later years or (1) $125,000 combined for the 2018, otherwise, but will be considered, as to 2019, and 2020 crop years, if less than 75 any unpaid amount, void and nonpay- percent of the person or legal entity’s able. average adjusted gross income is aver- (b) For WHIP: age adjusted gross farm income; or (1) For the 2018 crop year, the cal- (2) $250,000 for each of the 2018, 2019, culated WHIP+ payment will be paid at and 2020 crop years, if 75 percent or 100 percent. more of the average adjusted gross in- (2) For the 2019 and 2020 crop years, come of the person or legal entity is an initial payment will be issued for 50 average adjusted gross farm income, percent of each WHIP+ payment cal- and such payments cannot exceed a culated according to this subpart, as total of $500,000 combined for all of the determined by the Secretary. Up to the 2018, 2019, and 2020 crop years. remaining 50 percent of the calculated (c) A person or legal entity’s average WHIP+ payment will be paid only to adjusted gross income and average ad- the extent that there are funds avail- justed gross farm income are deter- able for such payment as discussed in mined based on the: this subpart. (1) 2013, 2014, and 2015 tax years for 2017 WHIP; (3) In the event that, within the lim- (2) 2015, 2016, and 2017 tax years for its of the funding made available by WHIP+. the Secretary, approval of eligible ap- (d) To be eligible for more than plications would result in payments in $125,000 in payments for the applicable excess of the amount available, FSA period specified in this section, a per- will prorate 2019 and 2020 payments by son or legal entity must submit FSA– a national factor to reduce the pay- 892 and provide a certification in the ments to the remaining available manner prescribed by FSA from a cer- funds, as determined by the Secretary. tified public accountant or attorney FSA will prorate the payments accord- that at least 75 percent of the person or ingly. legal entity’s average adjusted gross (4) Applications and claims that are income was average adjusted gross unpaid or prorated for aforementioned farm income. Persons or legal entities reasons of fund availability will not be who fail to provide FSA–892 and the re- carried forward for payment and will quired certification may not receive a be considered, as to any unpaid 2017 WHIP payment, directly or indi- amount, void and non-payable. rectly, of more than $125,000. [83 FR 33801, July 18, 2018, as amended 84 FR (e) The direct attribution provisions 48529, Sept. 13, 2019] in part 1400 of this chapter apply to

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payments under this subpart for both subpart’s definition of qualifying dis- payment limitation as well as in deter- aster event. mining average AGI as defined and (e) For WHIP+, for a loss due to a used in this rule. qualifying disaster event, the crop, [83 FR 33801, July 18, 2018, as amended 84 FR tree, bush, or vine loss must have oc- 48529, Sept. 13, 2019] curred on acreage that was physically located in a county that received a: § 760.1508 Qualifying disaster events. (1) Presidential Emergency Disaster (a) A producer will be eligible for Declaration authorizing public assist- payments under this subpart for a crop, ance for categories C through G or in- tree, bush, or vine loss only if the pro- dividual assistance due to a qualifying ducer suffered a loss to the crop, tree, disaster event occurring in the 2018 or bush, or vine on the unit due to a 2019 calendar years; or qualifying disaster event. (2) Secretarial Disaster Designation (b) For a loss due to hurricane and for a qualifying disaster event occur- conditions related to hurricanes, the ring in the 2018 or 2019 calendar years. crop, tree, bush, or vine loss must have (f) A producer with crop, tree, bush, occurred on acreage that was phys- or vine losses on acreage not located in ically located in a county that received a physical location county that was el- a: igible under paragraph (b)(1) of this (1) Presidential Emergency Disaster section will be eligible for WHIP+ for Declaration authorizing public assistance for categories C through G or in- losses due to qualifying disaster events dividual assistance due to a hurricane only if the producer provides sup- occurring in the 2017 calendar year; or porting documentation that is accept- (2) Secretarial Disaster Designation able to FSA from which the FSA coun- for a hurricane occurring in the 2017 ty committee determines that the loss calendar year. of the crop, tree, bush, or vine on the (c) A producer with crop, tree, bush, unit was reasonably related to a quali- or vine losses on acreage not located in fying disaster event as specified in this a physical location county that was el- subpart. Supporting documentation igible under paragraph (b)(1) of this may include furnishing climatological section will be eligible for 2017 WHIP data from a reputable source or other for losses due to hurricane and related information substantiating the claim conditions only if the producer proof loss due to a qualifying disaster vides supporting documentation that is event. acceptable to FSA from which the FSA [83 FR 33801, July 18, 2018, as amended 84 FR county committee determines that the 48530, Sept. 13, 2019] loss of the crop, tree, bush, or vine on the unit was reasonably related to a § 760.1509 Eligible and ineligible qualifying disaster event as specified in losses. this subpart. Supporting documentation may include furnishing climato- (a) Except as provided in paragraphs logical data from a reputable source or (b) through (e) of this section, to be eli- other information substantiating the gible for payments under this subpart claim of loss due to a qualifying dis- the unit must have suffered a loss of aster event. the crop, tree, bush, or vine, or pre- (d) For a loss due to wildfires and vented planting of a crop, due to a conditions related to wildfire in the qualifying disaster event. 2017 calendar year, all counties where (b) A loss will not be eligible under wildfires occurred, as determined by this subpart if any of the following FSA county committees, are eligible apply: for 2017 WHIP; a Presidential Emer- (1) The cause of loss is determined by gency Disaster Declaration or Secre- FSA to be the result of poor manage- tarial Disaster Designation for wildfire ment decisions, poor farming practices, is not required. The loss of the crop, or drifting herbicides; tree, bush, or vine must be reasonably (2) The cause of loss was due to fail- related to wildfire and conditions re- ure of the participant to re-seed or related to wildfire, as specified in this plant to the same crop in a county

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where it is customary to re-seed or re- (e) The following losses for honey, as plant after a loss before the final plant- a crop, where the honey production by ing date; colonies or bees was diminished, are (3) The cause of loss was due to water not eligible losses: contained or released by any govern- (1) Losses caused by the unavail- mental, public, or private dam or res- ability of equipment or the collapse or ervoir project if an easement exists on failure of equipment or apparatus used the acreage affected by the contain- in the honey operation; ment or release of the water; (2) Losses caused by improper storage (4) The cause of loss was due to con- of honey; ditions or events occurring outside of (3) Losses caused by bee feeding; the applicable growing season for the (4) Losses caused by the application crop, tree, bush, or vine; of chemicals; (5) The cause of loss was due to fail- (5) Losses caused by theft; ure of a power supply or brownout; or (6) Losses caused by the movement of (6) FSA or RMA have previously dis- bees by or for the participant; approved a notice of loss for the crop (7) Losses caused by disease or pest and disaster event unless that notice of infestation of the colonies, unless ap- loss was disapproved solely because it proved by the Deputy Administrator; (8) Losses of income from pollinators; was filed after the applicable deadline. or (c) The following types of loss, re- (9) Losses of equipment or facilities. gardless of whether they were the re- (f) Qualifying losses for trees, bushes, sult of an eligible disaster event, are and vines will not include losses: not eligible losses: (1) That could have been prevented (1) Losses to crops intended for graz- through reasonable and available meas- ing; ures; and (2) Losses to crops for which FCIC (2) To trees, bushes, or vines that coverage or NAP coverage is unavail- were abandoned or were not in use or able; intended for commercial operation at (3) Losses to volunteer crops; the time of the loss. (4) Losses to crops not intended for harvest; [83 FR 33801, July 18, 2018, as amended 84 FR 48530, Sept. 13, 2019] (5) Losses of by-products resulting from processing or harvesting a crop, § 760.1510 Application for payment. such as, but not limited to, cotton (a) An application for payment under seed, peanut shells, wheat or oat straw, this subpart must be submitted to the or corn stalks or stovers; FSA county office serving as the farm’s (6) Losses to home gardens; administrative county office by the (7) Losses of first year seeding for close of business on a date that will be forage production, or immature fruit announced by the Deputy Adminis- crops; or trator. Producers must submit: (8) Losses to crops that occur after (1) For 2017 WHIP, a completed form harvest. FSA–890, Wildfires and Hurricanes In- (d) The following losses of orna- demnity Program Application; or mental nursery stock are not eligible (2) For WHIP+, a completed form losses: FSA–894, Wildfires and Hurricanes In- (1) Losses caused by the inability to demnity Program + Application. market nursery stock as a result of (b) Once signed by a producer, the ap- lack of compliance with State and plication for payment is considered to local commercial ordinances and laws, contain information and certifications quarantine, boycott, or refusal of a of and pertaining to the producer re- buyer to accept production; gardless of who entered the informa- (2) Losses affecting crops where tion on the application. weeds and other forms of undergrowth (c) The producer applying for pay- in the vicinity of nursery stock have ment under this subpart certifies the not been controlled; or accuracy and truthfulness of the infor- (3) Losses caused by the collapse or mation provided in the application as failure of buildings or structures. well as any documentation filed with

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or in support of the application. All in- applicant’s average AGI is attributable formation is subject to verification or to activities related to farming, ranch- spot check by FSA at any time, either ing, or forestry and the applicant before or after payment is issued. Re- wants to be eligible to receive WHIP+ fusal to allow FSA or any agency of payments of more than $125,000, up to the Department of Agriculture to the $250,000 payment limitation per verify any information provided will crop year, with an overall WHIP+ limit result in the participant’s forfeiting of $500,000; and eligibility for payment under this sub- (iii) FSA–897, Actual Production His- part. FSA may at any time, including tory and Approved Yield Record before, during, or after processing and (WHIP+ Select Crops Only), for appli- paying an application, require the pro- cants requesting payments for select ducer to submit any additional information necessary to implement or de- crops. termine any eligibility provision of (e) Application approval and payment this subpart. Furnishing required infor- by FSA does not relieve a participant mation is voluntary; however, without from having to submit any form re- it FSA is under no obligation to act on quired, but not filed, according to para- the application or approve payment. graph (d) of this section. Providing a false certification will re- [83 FR 33801, July 18, 2018, as amended 84 FR sult in ineligibility and can also be 48530, Sept. 13, 2019] punishable by imprisonment, fines, and other penalties. § 760.1511 Calculating payments for (d) The application submitted in ac- yield-based crop losses. cordance with paragraph (a) of this sec- (a) Payments made under this sub- tion is not considered valid and complete for issuance of payment under part to a participant for a loss to yield- this subpart unless FSA determines all based crops, including losses due to the applicable eligibility provisions prevented planting, subject to have been satisfied and the participant § 760.1514(i) and (j), are determined for a has submitted all of following com- unit by: pleted forms and information: (1) Multiplying the eligible acres by (1) Report of all acreage for the crop the 2017 WHIP yield in paragraph (c) of for the unit for which payments under this section or the WHIP+ yield in this subpart are requested, on FSA–578, paragraph (d) of this section by the Report of Acreage, or in another for- price; mat acceptable to FSA; (2) Multiplying the result from para- (2) AD–1026, Highly Erodible Land graph (a)(1) of this section by the appli- Conservation (HELC) and Wetland Con- cable 2017 WHIP factor or WHIP+ fac- servation Certification; and tor in paragraph (b) of this section; (3) For 2017 WHIP: (3) Multiplying the applicable pro- (i) FSA–891, Crop Insurance and/or duction in paragraph (d) of this section NAP Coverage Agreement; by the price; (ii) FSA–892, Request for an Excep- (4) Subtracting the result from para- tion to the WHIP Payment Limitation graph (a)(3) of this section from the re- of $125,000, if the applicant is request- sult of paragraph (a)(2) of this section; ing 2017 WHIP payments in excess of (5) Multiplying the result from para- the $125,000 payment limitation; and (iii) FSA–893, 2018 Citrus Actual Pro- graph (a)(4) of this section by the par- duction History and Approved Yield ticipant’s share in paragraph (e) of this Record, Florida Only, for participants section; applying for payment for a citrus crop (6) Multiplying the result from para- located in Florida; graph (a)(5) of this section by the appli- (4) For WHIP+: cable payment factor in paragraph (f) (i) FSA–895, Crop Insurance and/or of this section; NAP Coverage Agreement; (7) Subtracting the amount of the (ii) FSA–896, Request for an Excep- gross insurance indemnity or NAP pay- tion to the WHIP Payment Limitation ment from the result from paragraph of $125,000, if 75 percent or more of an (a)(6) of this section;

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(8) Subtracting the secondary use or the first column, then the 2017 WHIP salvage value of the crop from the re- factor is listed in the second column, sult from paragraph (a)(7) of this sec- and the WHIP+ factor is listed in the tion; and third column: (b) If the NAP or crop insurance coverage is at the coverage level listed in

TABLE 1 TO § 760.1511(b)

2017 WHIP+ Coverage level WHIP factor factor (percent) (percent)

(1) No crop insurance or No NAP coverage ...... 65 70 (2) Catastrophic coverage ...... 70 75 (3) More than catastrophic coverage but less than 55 percent ...... 72.5 77.5 (4) At least 55 percent but less than 60 percent ...... 75 80 (5) At least 60 percent but less than 65 percent ...... 77.5 82.5 (6) At least 65 percent but less than 70 percent ...... 80 85 (7) At least 70 percent but less than 75 percent ...... 85 87.5 (8) At least 75 percent but less than 80 percent ...... 90 92.5 (9) At least 80 percent ...... 95 95

(c) The 2017 WHIP yield is: (f) The eligible participant’s share of (1) The producer’s APH for insured a payment under this subpart is based crops under a crop insurance policy on the participant’s ownership entitle- that has an associated yield and for ment share of the crop or crop pro- NAP covered crops, excluding all crops ceeds, or, if no crop was produced, the located in Puerto Rico; share of the crop the participant would (2) The county expected yield for have received if the crop had been pro- crops located in Puerto Rico and unin- duced. If the participant has no owner- sured crops, excluding citrus crops lo- ship share of the crop, the participant cated in Florida; or is ineligible for payment. (3) For uninsured citrus crops located (g) Payment factors will be used to in Florida: calculate payments for crops produced (i) Determined based on information with significant and variable produc- provided on FSA–893 and supported by tion and harvesting expenses that are evidence that meets the requirements not incurred because the crop acreage of § 760.1513(c), or was prevented planted, or planted but (ii) If FSA–893 and supporting docu- not harvested, as determined by FSA. mentation are not submitted, the coun- The use of payment factors is based on ty expected yield. whether the crop acreage was (d) The WHIP+ yield is: unharvested or prevented planted, not (1) The producer’s APH for insured whether a participant actually incurs crops under a crop insurance policy or does not incur expenses. Payment that has an associated yield and for factors are generally applicable to all NAP covered crops, excluding all crops similarly situated participants and are located in Puerto Rico; not established in response to indi- (2) The county expected yield for vidual participants. Accordingly estab- crops located in Puerto Rico and unin- lished payment factors are not appeal- sured crops, excluding select crops; or able under parts 11 and 780 of this title. (3) For select crops: A crop that is intended for mechanical (i) Determined based on information harvest, but subsequently grazed and provided on FSA–897 and supported by not mechanically harvested, will have evidence that meets the requirements an unharvested payment factor ap- of § 760.1513(c), or plied. (ii) If FSA–897 and supporting documentation are not submitted, the coun- (h) Production from all end uses of a ty expected yield. multi-use crop will be calculated sepa- (e) The production used to calculate rately and summarized together. a payment under this subpart will be [83 FR 33801, July 18, 2018, as amended 84 FR determined as specified in § 760.1513. 48530, Sept. 13, 2019]

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§ 760.1512 Production losses; partici- (3) Accounting for the total amount pant responsibility. of unit production for the crop, wheth- (a) For any record submitted along er or not records reflect this produc- with the certification of production, tion; the record must be either a verifiable (4) Providing the information in a or reliable record that substantiates manner that can be easily understood the certification to the satisfaction of by the FSA county committee; and the FSA county committee. If the eli- (5) Providing supporting documenta- gible crop was sold or otherwise dis- tion if the FSA county committee has posed of through commercial channels, reason to question the disaster event a record of that disposition must be or that all production has been taken provided to FSA with the certification. into account. (1) Acceptable production records in- (c) FSA may verify the production clude: evidence submitted with records on file (i) RMA or NAP records, if accurate at the warehouse, gin, or other entity and complete; that received or may have received the (ii) Commercial receipts; reported production. (iii) Settlement sheets; (d) Participants must provide all (iv) Warehouse ledger sheets or load records for any production of a crop summaries; or that is grown with an arrangement, (v) Appraisal information from a loss agreement, or contract for guaranteed adjuster acceptable to FSA. payment. (2) If the eligible crop was farm- (e) Under WHIP+, participants re- stored, sold, fed to livestock, or dis- questing payments for losses to adul- posed of by means other than verifiable terated wine grapes must submit commercial channels, acceptable verifiable sales tickets that document records for these purposes include: that the reduced price received was due (i) Truck scale tickets; to adulteration due to a qualifying dis- (ii) Appraisal information from a loss aster event. For adulterated wine adjuster acceptable to FSA; grapes that have not been sold, partici- (iii) Contemporaneous reliable dia- pants must submit verifiable records ries; or obtained by testing or analysis to es- (iv) Other documentary evidence, tablish that the wine grapes were adul- such as contemporaneous reliable terated due to a qualifying disaster measurements. event and the price they would receive (3) Determinations of reliability with due to adulteration. respect to this paragraph will take into account, as appropriate, the ability for [83 FR 33801, July 18, 2018, as amended 84 FR FSA to review and verify or compare 48531, Sept. 13, 2019] the evidence against the similarity of the evidence or reports or data received § 760.1513 Determination of production. by FSA for the crop or similar crops. Other factors deemed relevant may (a) The harvested production of eligi- also be taken into account. ble crop acreage harvested more than (b) If RMA or NAP records are not once in a crop year includes the total available, or if the FSA county com- harvested production from all the har- mittee determines the RMA or NAP vests in the crop year. records as reported by the insured or (b) If a crop is appraised and subse- covered participant appear to be ques- quently harvested as the intended use, tionable or incomplete, or if the FSA the actual harvested production must county committee makes inquiry, the be taken into account to determine participant is responsible for: payments. FSA will analyze and deter- (1) Retaining and providing, at time mine whether a participant’s evidence of application and whenever required of actual production represents all that by FSA, the best available verifiable or could or would have been harvested. reliable or other production records for (c) For all crops eligible for loan defi- the crop; ciency payments or marketing assist- (2) Summarizing all the production ance loans (see parts 1421 and 1434 of evidence; this title) with an intended use of grain

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but harvested as silage, ensilage, cab- (5) A crop was late-planted; bage, hay, cracked, rolled, or crimped, (6) Unharvested acreage was not production will be converted to a whole timely appraised; or grain equivalent based on conversion (7) Other appropriate causes exist for factors as previously established by such assignment as determined by the FSA. Deputy Administrator. (d) If a participant does not receive (g) The FSA county committee will compensation based upon the quantity establish a county disaster yield that of the commodity delivered to a pur- reflects the amount of production pro- chaser, but has an agreement or con- ducers would have produced consid- tract for guaranteed payment for production, the determination of the pro- ering the eligible disaster events in the duction will be the greater of the ac- county or area for the same crop. The tual production or the guaranteed pay- county disaster yield for the county or ment converted to production as deter- area will be expressed as either a per- mined by FSA. cent of loss or yield per acre. The coun- (e) Production that is commingled ty disaster yield will apply when: between crop years, units, ineligible (1) Unharvested acreage has not been and eligible acres, or different prac- appraised by FSA or a company rein- tices before it was a matter of record sured by FCIC; or or combination of record and cannot be (2) Acceptable production records for separated by using records or other harvested acres are not available from means acceptable to FSA will be pro- any source. rated to each respective year, unit, (h) In no case will the production type of acreage, or practice, respec- amount of any applicant be less than tively. Commingled production may be the producer’s certified loss. attributed to the applicable unit, if the (i) Under WHIP+, production for eli- participant made the unit production gible adulterated wine grapes will be of a commodity a matter of record be- adjusted for quality deficiencies due to fore commingling and does any of the a qualifying disaster event. Wine following, as applicable: (1) Provides copies of verifiable docu- grapes are eligible for production ad- ments showing that production of the justment only if adulteration occurred commodity was purchased, acquired, or prior to harvest and as a result of a otherwise obtained from beyond the qualifying disaster event or as a result unit; of a related condition (such as applica- (2) Had the production measured in a tion of fire retardant). Losses due to all manner acceptable to the FSA county other causes of adulteration (such as committee; or addition of artificial flavoring or (3) Had the current year’s production chemicals for economic purposes) are appraised in a manner acceptable to not eligible for WHIP+. Production will the FSA county committee. be eligible for quality adjustment if, (f) The FSA county committee will due to a qualifying disaster event, it assign production for the unit when the has a value of less than 75 percent of FSA county committee determines the average market price of that: undamaged grapes of the same or simi- (1) The participant has failed to pro- lar variety. The value per ton of the vide adequate and acceptable produc- qualifying damaged production and the tion records; average market price of undamaged (2) The loss to the crop is because of grapes will be determined on the ear- a disaster condition not covered by this lier of the date the damaged production subpart, or circumstances other than is sold or the date of final inspection natural disaster, and there has not oth- for the unit. Grape production that is erwise been an accounting of this ineligible cause of loss; eligible for quality adjustment will be (3) The participant carries out a prac- reduced by: tice, such as multiple cropping, that (1) Dividing the value per ton of the generally results in lower yields than damaged grapes by the value per ton the established historic yields; for undamaged grapes; and

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(2) Multiplying this result (not to ex- (g) Subject to the provisions of this ceed 1.000) by the number of tons of the subpart, the FSA county committee eligible damaged grapes. will: (1) Use the most accurate data avail- [83 FR 33801, July 18, 2018, as amended 84 FR 48531, Sept. 13, 2019] able when determining planted and prevented planted acres; and § 760.1514 Eligible acres. (2) Disregard acreage of a crop pro- (a) Eligible acreage will be calculated duced on land that is not eligible for using the lesser of the reported or de- crop insurance or NAP. termined acres shown to have been (h) If a farm has a crop that has both planted or prevented from being plant- FSA and RMA acreage for insured ed to a crop. crops, eligible acres will be based on (b) Initial crop acreage will be the the lesser of RMA or FSA acres. payment acreage for under this sub- (i) For 2017 WHIP, prevented planting part, unless the provisions for subse- acres will be considered eligible acres if quent crops in this section are met. they meet all requirements of this sub- Subsequently planted or prevented part. planted acre acreage is considered (j) For WHIP+: acreage for under this subpart only if (1) 2018 and 2020 crop year prevented the provisions of this section are met. planting acres and 2019 crop year unin- All plantings of an annual or biennial sured and NAP-covered prevented crop are considered the same as a planting acres will be eligible acres if planting of an initial crop in tropical they meet all requirements of this sub- regions as defined in part 1437, subpart part; and F, of this title. (2) 2019 crop year insured prevented (c) In cases where there is double planting acres will not be eligible cropped acreage, each crop may be in- acres. cluded in the acreage only if the specific crops are approved by the FSA [83 FR 33801, July 18, 2018, as amended 84 FR 48531, Sept. 13, 2019] State committee as eligible double cropping practices in accordance with § 760.1515 Calculating payments for procedures approved by the Deputy Ad- value loss crops. ministrator. (d) Except for insured crops, partici- (a) Payments made under this sub- pants with double cropped acreage not part to a participant for a loss on a meeting the criteria in paragraph (c) of unit with respect to value loss crops this section may have such acreage in- are determined by: cluded in the acreage on more than one (1) Multiplying the field market crop only if the participant submits value of the crop immediately before verifiable records establishing a his- the qualifying disaster event by the tory of carrying out a successful double 2017 WHIP factor or WHIP+ factor spec- cropping practice on the specific crops ified in § 760.1511(b); for which payment is requested. (2) Subtracting the sum of the field (e) Participants having multiple market value of the crop immediately plantings may receive payments for after the qualifying disaster event and each planting included only if the the value of the crop lost due to ineli- planting meets the requirements of gible causes of loss from the result part 1437 of this title and all other pro- from paragraph (a)(1) of this section; visions of this subpart are satisfied. (3) Multiplying the result from para- (f) Losses due to prevented planting graph (a)(2) of this section by the par- are eligible under this subpart only if ticipant’s share; the loss was due to a qualifying dis- (4) Multiplying the result from para- aster event. Provisions of parts 718 and graph (a)(3) of this section by the appli- 1437 of this title specifying what is con- cable payment factor; sidered prevented planting and how it (5) Subtracting the gross insurance must be documented and reported indemnity or NAP payment from the apply. Crops located in tropical regions result from paragraph (a)(4) of this sec- are not eligible for prevented planting. tion;

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(6) Subtracting the secondary use or (c) Expected value is determined by salvage value of the crop from the re- multiplying the total number of trees, sult from paragraph (a)(5) of this sec- bushes, or vines that were damaged or tion; and destroyed by a qualifying disaster (7) Subtracting the amount of any event by the price. payment for future economic losses re- (d) Actual value is determined by: ceived under the Florida Citrus Recov- (1) Multiplying the number of trees, ery Block Grant Program. bushes, or vines damaged by a quali- (b) In the case of an insurable value fying disaster event by the damage fac- loss crop for which crop insurance pro- tor; vides for an adjustment in the guar- (2) Adding the result of paragraph antee, liability, or indemnity, such as (d)(1) of this section and the number of in the case of inventory exceeding peak trees, bushes, or vines destroyed by a inventory value, the adjustment will be qualifying disaster event; used in determining the payment under this subpart for the crop. (3) Multiplying the result of para- (c) In the case of a NAP eligible value graph (d)(2) of this section by the price; loss crop for which NAP provides for an and adjustment in the level of assistance, (4) Subtracting the result of para- such as in the case of unharvested field graph (d)(3) of this section from the ex- grown inventory, the adjustment will pected value from paragraph (c) of this be used in determining the payment for section. the crop. (e) The FSA county committee will adjust the number of damaged and de- [83 FR 33801, July 18, 2018, as amended 84 FR stroyed trees, bushes, and vines, if it 48531, Sept. 13, 2019] determines that the number of dam- § 760.1516 Calculating payments for aged or destroyed trees, bushes, or tree, bush, and vine losses. vines certified by the participant is in- (a) Payments will be calculated sepa- accurate. rately based on the growth stage of the (f) Citrus trees located in Florida are trees, bushes, or vines, as determined ineligible for payment under 2017 by the Deputy Administrator. WHIP. (b) Payments made under this sub- [83 FR 33801, July 18, 2018, as amended 84 FR part to a participant for a loss on a 48532, Sept. 13, 2019] unit with respect to tree, bush, and vine losses are determined by: § 760.1517 Requirement to purchase (1) Multiplying the expected value crop insurance or NAP coverage. (see paragraph (c) of this section) of (a) For the first 2 consecutive crop the trees, bushes, or vines immediately years for which crop insurance or NAP before the qualifying disaster event by coverage is available after the enroll- the WHIP factor or WHIP+ factor 2017 ment period for 2017 WHIP or WHIP+ specified in § 760.1511(b); ends, subject to paragraph (c) of this (2) Subtracting the actual value (see section, a participant who receives paragraph (d) of this section) of the payment under this subpart for a crop trees, bushes, or vines immediately loss in a county must obtain: after the qualifying disaster event from the result of paragraph (b)(1) of this (1) For an insurable crop, crop insur- section; ance with at least a 60 percent cov- (3) Multiplying the result of para- erage level for that crop in that coun- graph (b)(2) of this section by the party; or ticipant’s share; (2) For a NAP eligible crop: (4) Subtracting the amount of any in- (i) NAP coverage with a coverage surance indemnity received from the level of 60 percent, if available for the result of paragraph (b)(3) of this sec- applicable crop year, or NAP cata- tion; and strophic coverage if NAP coverage is (5) Subtracting the value of any sec- not offered at a 60 percent coverage ondary use or salvage value from the level for that crop year. result of paragraph (b)(4) of this sec- (ii) Participants who exceed the aver- tion. age adjusted gross income limitation

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for NAP payment eligibility 1 for the may be required under such coverage applicable crop year may meet the pur- agreement. chase requirement specified in para- [83 FR 33801, July 18, 2018, as amended 84 FR graph (a)(2)(i) of this section by pur- 48532, Sept. 13, 2019] chasing Whole-Farm Revenue Protec- tion crop insurance coverage, if eligible, or paying the NAP service fee and Subpart P—On-Farm Storage Loss premium even though the participant Program will not be eligible to receive a NAP payment due to the average adjusted SOURCE: 84 FR 48532, Sept. 13, 2019, unless gross income limit but will be eligible otherwise noted. for the WHIP payment. § 760.1600 Applicability. (b) For the first 2 consecutive insurance years for which crop insurance is (a) This subpart specifies the terms available after the enrollment period and conditions for the On-Farm Stor- for 2017 WHIP ends, subject to para- age Loss Program. The On-Farm Stor- graph (c) of this section, any partici- age Loss Program will provide pay- pant who receives 2017 WHIP payments ments to eligible producers who suf- for a tree, bush, or vine loss must pur- fered uncompensated losses of har- chase a plan of insurance for the tree, vested commodities stored in on farm bush, or vine with at least a 60 percent structures as a result from hurricanes, coverage level. floods, tornadoes, typhoons, volcanic activity, snowstorms, and wildfires (c) The final crop year to purchase that occurred in the 2018 and 2019 cal- crop insurance or NAP coverage to endar years. meet the requirements of paragraphs (b) The regulations in this subpart (a) and (b) of this section is the: are applicable to crops of barley, small (1) 2021 crop year for 2017 WHIP pay- and large chickpeas, corn, grain sor- ment eligibility, except as provided in ghum, lentils, oats, dry peas, peanuts, paragraph (c)(2) of this section; rice, wheat, soybeans, oilseeds, hay and (2) 2023 crop year for: other crops designated by Commodity (i) WHIP+ payment eligibility; and Credit Corporation (CCC) stored in on- (ii) 2017 WHIP payment eligibility for farm structures. These regulations losses due to Tropical Storm Cindy, specify the general provisions under losses of peach and blueberry crops in which the On-Farm Storage Loss Pro- calendar year 2017 due to extreme cold, gram will be administered by CCC. In and blueberry productivity losses in any case in which money must be re- calendar year 2018 due to extreme cold funded to CCC in connection with this and hurricane damage in calendar year part, interest will be due to run from 2017. the date of disbursement of the sum to (d) If a producer fails to obtain crop be refunded. This provision will apply, insurance or NAP coverage as required unless waived by the Deputy Adminis- in paragraphs (a) and (b) of this sec- trator, irrespective of any other rule. tion, the producer must reimburse FSA (c) Eligible on-farm structures infor the full amount of 2017 WHIP pay- clude all on-farm structures deemed ment or WHIP+ payment plus interest acceptable by the Deputy Adminis- that the producer received for that trator for Farm Programs. crop, tree, bush, or vine loss. A pro- (d) Adjusted Gross Income (AGI) and ducer will only be considered to have payment limitation provisions speci- obtained NAP coverage for the pur- fied in part 760.1607 of this chapter poses of this section if the participant apply to this subpart. applied and payed the requisite NAP service fee and paid any applicable pre- § 760.1601 Administration. mium by the applicable deadline and (a) The On-Farm Storage Loss Pro- completed all program requirements, gram will be administered under the including filing an acreage report as general supervision of the Executive Vice President, CCC and will be carried 1 See §§ 1400.500(a) and 1400.1(a)(4) of this out in the field by FSA State and coun- title. ty committees, respectively.

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(b) State and county committees, and Administrative County Office is the representatives and their employees, FSA County Office where a producer’s do not have authority to modify or FSA records are maintained. waive any of the provisions of the regu- CCC means the Commodity Credit lations, except as provided in para- Corporation. graph (e) of this section. COC means the FSA county com- (c) The FSA State committee will mittee. take any required action not taken by Covered commodity means wheat, oats, the FSA county committee. The FSA and barley (including wheat, oats, and State committee will also: barley used for haying), corn, grain (1) Correct or require correction of an sorghum, long grain rice, medium action taken by a county committee grain rice, seed cotton, pulse crops, that is not in compliance with this soybeans, other oilseeds, and peanuts part; or as specified in 7 CFR 1412 and produced (2) Require a county committee to and mechanically harvested in the not take an action or implement a de- United States. cision that is not under the regulations Crop means with respect to a year, of this part. commodities harvested in that year. (d) The Executive Vice President, Therefore, the referenced crop year of a CCC, or a designee, may determine any commodity means commodities that question arising under these programs, when planted were intended for harvest or reverse or modify a determination in that calendar year. made by a State or county committee. Crop year means the relevant contract or application year. For example, (e) The Deputy Administrator for the 2014 crop year is the year that runs Farm Programs, FSA, may authorize from October 1, 2013, through Sep- State and county committees to waive tember 30, 2014, and references to pay- or modify non-statutory deadlines and ments for that year refer to payments other program requirements in cases made under contracts or applications where lateness or failure to meet such with the compliance year that runs other requirements does not adversely during those dates. affect the operation of the On-Farm FSA means the Farm Service Agency Storage Loss Program. of the United States Department of Ag- (f) A representative of CCC may exe- riculture. cute applications and related docu- Oilseeds means any crop of sunflower ments only under the terms and condi- seed, canola, rapeseed, safflower, tions determined and announced by flaxseed, mustard seed, crambe, sesame CCC. Any document not executed under seed, and other oilseeds as designated such terms and conditions, including by CCC or the Secretary. any purported execution before the Qualifying disaster event means a hur- date authorized by CCC, will be null ricane, flood, tornado, typhoon, vol- and void. canic activity, snowstorm, or wildfire (g) Items of general applicability to or related condition that occurred in program participants, including, but the 2018 or 2019 calendar year. not limited to, application periods, ap- Recording FSA County Office is the plication deadlines, internal operating FSA County Office that records eligi- guidelines issued to State and county bility data for producers designated as offices, prices, and payment factors es- multi-county producers. tablished by the On-Farm Storage Loss Related condition means damaging Program, are not subject to appeal. weather or an adverse natural occurrence that occurred as a direct result § 760.1602 Definitions. of a hurricane or wildfire qualifying The definitions in this section apply disaster event, such as excessive rain, for all purposes of program administra- high winds, flooding, mudslides, and tion. Terms defined in §§ 760.1502 and heavy smoke. 760.1421 of this chapter also apply, ex- Secretary means the Secretary of the cept where they conflict with the defi- United States Department of Agri- nitions in this section. culture, or the Secretary’s delegate.

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STC means the FSA State com- (3) Any program application signed mittee. by the minor is cosigned by a person determined by the FSA county com- § 760.1603 Eligible producers. mittee to be financially responsible; or (a) To be an eligible producer, the (e) A producer must meet the re- producer must: quirements of actively engaged in (1) Be a person, partnership, associa- farming, cash rent tenant, and member tion, corporation, estate, trust, or contribution as specified in 7 CFR part other legal entity that produces an eli- 1400 to be eligible for program pay- gible commodity as a landowner, land- ments. lord, tenant, or sharecropper, or in the case of rice, furnishes land, labor, § 760.1604 Eligible commodities. water, or equipment for a share of the (a) Commodities eligible to be com- rice crop. pensated for loss made under this part (2) Comply with all provisions of this are: part and, as applicable: (1) Covered Commodities; (i) 7 CFR part 12—Highly Erodible (2) Hay; and Land and Wetland Conservation; (3) Stored in an on-farm structure (ii) 7 CFR part 707—Payments Due that under normal circumstances, Persons Who Have Died, Disappeared, would have maintained the quality of or Have Been Declared Incompetent; the commodity throughout harvest (iii) 7 CFR part 718—Provisions Ap- until marketing or feed if not for the plicable to Multiple Programs; qualifying weather event. (v) 7 CFR part 1400—Payment Limi- (b) A commodity produced on land tation & Payment Eligibility; and owned or otherwise in the possession of (vii) 7 CFR part 1403—Debt Settle- the United States that is occupied ment Policies and Procedures. without the consent of the United (b) A receiver or trustee of an insol- States is not an eligible commodity. vent or bankrupt debtor’s estate, an executor or an administrator of a de- § 760.1605 Miscellaneous provisions. ceased person’s estate, a guardian of an (a) All persons with a financial inter- estate of a ward or an incompetent per- est in the legal entity receiving pay- son, and trustees of a trust is consid- ments under this subpart are jointly ered to represent the insolvent or and severally liable for any refund, in- bankrupt debtor, the deceased person, cluding related charges, which is deter- the ward or incompetent, and the bene- mined to be due to FSA for any reason. ficiaries of a trust, respectively. The (b) In the event that any application production of the receiver, executor, for payment under this subpart re- administrator, guardian, or trustee is sulted from erroneous information or a considered to be the production of the miscalculation, the payment will be re- person or estate represented by the recalculated and any excess refunded to ceiver, executor, administrator, guard- FSA with interest to be calculated ian, or trustee. On-Farm Storage Loss from the date of the disbursement. Program documents executed by any (c) Any payment to any participant such person will be accepted by CCC under this subpart will be made with- only if they are legally valid and such out regard to questions of title under person has the authority to sign the State law, and without regard to any applicable documents. claim or lien against the commodity, (c) A minor who is otherwise an eligi- or proceeds, in favor of the owner or ble producer is eligible to receive a pro- any other creditor except agencies of gram payment only if the minor meets the U.S. Government. The regulations one of the following requirements: governing offsets and withholdings in (1) The right of majority has been part 792 of this chapter apply to pay- conferred on the minor by court pro- ments made under this subpart. ceedings or by statute; (d) Any participant entitled to any (2) A guardian has been appointed to payment may assign any payment(s) in manage the minor’s property and the accordance with regulations governing applicable program documents are the assignment of payments in part 792 signed by the guardian; of this chapter.

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(e) The regulations in 7 CFR parts 11 eligible under paragraph (b)(1) of this and 780 apply to determinations under section will be eligible for a program this subpart. payment for losses due to hurricane and related conditions only if the pro- § 760.1606 General provisions. ducer provides supporting documenta- Losses will be determined total pro- tion that is acceptable to FSA from duction in storage at time of loss. Eli- which the FSA county committee de- gibility and payments will be based on termines that the loss of the com- physical location of storage. Payments modity was reasonably related to a will be made on commodities that were qualifying disaster event as specified in completely lost or destroyed while in this subpart and meets all other eligi- storage due to the qualifying weather bility conditions. Supporting docu- related event. mentation may include furnishing climatological data from a reputable § 760.1607 Availability of funds and source or other information substan- timing of payments. tiating the claim of loss due to a quali- For the On-Farm Storage Loss Pro- fying disaster event. gram, payments will be issued as appli- (d) For a loss due to wildfires and cations are approved. conditions related to wildfire in the 2018 or 2019 calendar year, all counties § 760.1608 Payment limitation and AGI. where wildfires occurred, as determined by FSA county committees, are (a) Per loss year, a person or legal en- eligible program payments; a Presi- tity, other than a joint venture or gen- dential Emergency Disaster Declara- eral partnership, is eligible to receive, tion or Secretarial Disaster Designa- directly or indirectly payments of not tion for wildfire is not required. The more than $125,000. loss must be reasonably related to (b) The direct attribution provisions wildfire and conditions related to wild- in § 760.1507 of this part apply for pay- fire, as specified in this subpart’s defi- ment limitation as defined and used in nition of qualifying disaster event. this rule. (e) For a loss due to floods, torna- § 760.1609 Qualifying disaster events. does, typhoons, volcanic activity, snowstorms or any other directly re- (a) The On-Farm Storage Loss Pro- lated weather disaster event, the loss gram will provide a payment to eligible must be reasonably related to the dis- producers who suffered losses of har- aster event as specified in this sub- vested commodities while such com- part’s definition of qualifying disaster modities were stored in on farm struc- event. tures as a result from hurricanes, floods, tornadoes, typhoons, volcanic § 760.1610 Eligible and ineligible activity, snowstorms, and wildfires losses. that occurred in the 2018 and 2019 calendar years. (a) Except as provided in paragraphs (b) For a loss due to or related to an (b) of this section, to be eligible for event specified in paragraph (a) of this payments under this subpart the com- section, the loss must have occurred on modity stored in an eligible structure acreage that was physically located in must have suffered a loss due to a a county that received a: qualifying disaster event. (1) Presidential Emergency Disaster (b) A loss will not be eligible for the Declaration authorizing public assist- On-Farm Storage Loss Program this ance for categories C through G or in- subpart if any of the following apply: dividual assistance due to a hurricane (1) The cause of loss is determined by occurring in the 2018 or 2019 calendar FSA to be the result of poor manage- year; or ment decisions, poor farming practices, (2) Secretarial Disaster Designation or previously damaged structures; for a hurricane occurring in the 2018 or (2) The cause of loss was due to fail- 2019 calendar year. ure of the participant to store the com- (c) A producer with a loss not located modity in an eligible structure before in a physical location county that was the qualifying disaster event; or

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(3) The cause of loss was due to water sult in ineligibility and can also be contained or released by any govern- punishable by imprisonment, fines, and mental, public, or private dam or res- other penalties. ervoir project if an easement exists on (d) The application submitted in ac- the acreage affected by the contain- cordance with paragraph (a) of this sec- ment or release of the water. tion is not considered valid and com- (c) The following types of loss, re- plete for issuance of payment under gardless of whether they were the re- this subpart unless FSA determines all sult of an eligible disaster event, are the applicable eligibility provisions not eligible losses: have been satisfied and the participant (1) Losses to crops that have not been has submitted all required documenta- harvested. (2) Losses to crops not intended for tion. harvest; (e) Application approval and payment (4) Losses caused by improper stor- by FSA does not relieve a participant age; from having to submit any form re- (5) Losses caused by the application quired, but not filed. of chemicals; and (6) Losses caused by theft. § 760.1612 Calculating payments on- farm storage losses. § 760.1611 Application for payment. (a) Payments made under this sub- (a) An application for payment under part to a participant for loss of stored this subpart must be submitted to the commodities are calculated, except hay FSA county office serving as the farm’s or silage, by: administrative county office by the (1) Multiplying the eligible quantity close of business on a date that will be of the eligible commodity by the RMA announced by the Deputy Adminis- determined price; trator. (2) Multiplying the result from para- (b) Once signed by a producer, the ap- graph (a)(1) of this section by a 75 per- plication for payment is considered to cent factor. contain information and certifications (b) Payments made under this sub- of and pertaining to the producer re- part to a participant for loss of stored gardless of who entered the informa- hay or silage, by: tion on the application. (c) The producer applying for the On- (1) Multiplying the eligible quantity Farm Storage Loss Program under this of the eligible commodity by a price as subpart certifies the accuracy and determined by the Secretary; truthfulness of the information pro- (2) Multiplying the result from para- vided in the application as well as any graph (b)(1) of this section by a 75 per- documentation filed with or in support cent factor. of the application. All information is subject to verification or spot check by Subpart Q—Milk Loss Program FSA at any time, either before or after payment is issued. Refusal to allow SOURCE: 84 FR 48534, Sept. 13, 2019, unless FSA or any agency of the Department otherwise noted. of Agriculture to verify any information provided will result in the partici- § 760.1700 Applicability pant’s forfeiting eligibility for this program. FSA may at any time, including This subpart specified the terms and before, during, or after processing and conditions for the Milk Loss Program. paying an application, require the pro- The Milk Loss Program will provide ducer to submit any additional infor- payments to dairy operations for milk mation necessary to implement or de- that was dumped or removed without termine any eligibility provision of compensation from the commercial this subpart. Furnishing required infor- milk market due to the results from mation is voluntary; however, without hurricanes, floods, tornadoes, ty- it FSA is under no obligation to act on phoons, volcanic activity, snowstorms, the application or approve payment. and wildfires that occurred in the 2018 Providing a false certification will re- and 2019 calendar year.

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§ 760.1701 Administration. milk at the time he dumped milk or This milk loss payment program will was unable to deliver milk to the com- be carried out by FSA under the direc- mercial market due to a qualifying tion and supervision of the Deputy Ad- weather related event. ministrator. In the field, the program Pay period means: will be administered by the State and (1) In the case of an affected farmer county committees. who markets his whole milk through a milk handler, the period used by the § 760.1702 Definitions. milk handler in settling with the af- The following definitions apply to fected farmer for his whole milk, usu- the Milk Loss Program. ally biweekly or monthly; or Affected farmer means a person who (2) In the case of an affected farmer produces whole milk which is removed whose commercial market consists of from the commercial market any time direct retail sales to consumers, a cal- or who produces but was unable to de- endar month. liver milk to a commercial market as a Payment subject to refund means a result of a qualifying event limited to: payment which is made by a milk han- (1) Weather-related event prevented dler to an affected farmer, and which transportation of the milk, such farmer is obligated to refund to (2) Weather-related event caused a the milk handler. power outage or structural damage Person means an individual, partner- causing milk to be unmerchantable. ship, association, corporation, trust, Application period means any period estate, or other legal entity. during calendar year 2018 and 2019 Qualifying disaster event means a hur- which an affected farmer’s whole milk ricane, flood, tornado, typhoon, vol- is dumped or removed without com- canic activity, snowstorm, or wildfire pensation from the commercial market or related condition that occurred in due to a qualified disaster event for the 2018 or 2019 calendar year. which application for payment is made. Removed from the commercial market Base period means the calendar means: month or 4-week period immediately (1) Produced and destroyed or fed to preceding when the producer was un- livestock; able to deliver milk to a commercial (2) Produced and delivered to a han- market as a result of a qualifying dis- dler who destroyed it or disposed of it aster event. as salvage (such as separating whole means the calendar Claim period milk, destroying the fat, and drying month, or months, in which milk was the skim milk); or dumped or removed and usually is the (3) Produced and otherwise diverted calendar month immediately following to other than the commercial market. the base period. Commercial market means: Same loss means the event or trigger (1) The market to which the affected that caused the milk to be removed farmer normally delivers his whole from the commercial market. milk and from which it was removed; Secretary means the Secretary of Ag- or riculture of the United States or any (2) The market to which the affected officer or employee of the U.S. Depart- manufacturer normally delivers his ment of Agriculture to whom the Sec- dairy products and from which they retary delegates authority to act as were removed. the Secretary. County committee means the FSA State committee means the FSA State county committee. committee. Deputy Administrator means the Dep- Whole milk means milk as it is pro- uty Administrator for Farm Programs, duced by cows. FSA. FSA means the Farm Service Agency, § 760.1703 Payments to dairy farmers U.S. Department of Agriculture. for milk. Milk handler means the marketing A milk loss payment may be made to agency to or through which the af- an affected farmer who is determined fected dairy farmer marketed his whole by the FSA county committee to be in

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compliance with all the terms and con- the pay periods in the application pe- ditions of this subpart in the amount riod: equal to 75 percent of the fair market (1) In the case of an affected farmer value of the farmer’s normal mar- who markets his whole milk through a ketings for the application period, less: milk handler, by multiplying the af- (a) Any amount he received for whole fected farmer’s normal marketings for milk marketed during the applications each such pay period by the average period; and net price per hundred-weight of whole (b) Any payment not subject to re- milk paid during the pay period by fund which he received from a milk such farmer’s milk handler in the same handler with respect to whole milk re- area for whole milk similar in quality moved from the commercial market and butterfat test to that marketed by during the application period. the affected farmer in the base period § 760.1704 Normal marketings of milk. used to determine his normal marketings; or (a) The FSA county committee will determine the affected farmer’s (2) In the case of an affected farmer dumped milk normal marketings whose commercial market consists of which, for the purposes of this subpart, direct retail sales to consumers, by will be the sum of the quantities of multiplying the affected farmer’s nor- whole milk for which the farmer would mal marketings for each such pay pe- have sold in the commercial market in riod by the average net price per hun- each of the pay periods in the applica- dredweight of whole milk, as deter- tion period be it not for the removal of mined by the FSA county committee, his whole milk from the commercial which other producers in the same area market as a result of a qualifying dis- who marketed their whole milk aster event. through milk handlers received for (b) Normal marketings for each pay whole milk similar in quality and but- period are based on the average daily terfat test to that marketed by the af- production during the base period. fected farmer during the base period (c) Normal marketings determined in used to determine his normal mar- paragraph (b) of this section are ad- ketings. justed for any change in the daily aver- (c) In determining the net price for age number of cows milked during each whole milk, the FSA county com- pay period the milk is off the market mittee will deduct from the gross price compared with the average number of any transportation, administrative, cows milked daily during the base pe- and other costs of marketing which it riod. determines are normally incurred by (d) If only a portion of a pay period the affected farmer but which were not falls within the application period, nor- incurred because of the removal of his mal marketings for such pay period whole milk from the commercial mar- will be reduced so that they represent ket. only that part of such pay period which is within the application period. § 760.1706 Information to be furnished. § 760.1705 Fair market value of milk. The affected farmer must furnish to (a) The FSA county committee will the FSA county committee complete determine the fair market value of the and accurate information sufficient to affected farmer’s dumped milk normal enable the FSA county committee or marketings, which, for the purposes of the Deputy Administrator to make the this subpart, will be the sum of the net determinations required in this sub- proceeds such farmer would have re- part. Such information must include, ceived for his normal marketings in but is not limited to: each of the pay periods in the applica- (a) A copy of the notice from, or tion period but for the qualifying dis- other evidence of action by, the public aster event. agency which resulted in the dumping (b) The FSA county committee will or removal of the affected farmer’s determine the net proceeds the affected whole milk from the commercial mar- farmer would have received in each of ket.

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(b) The specific weather or disaster § 760.1707 Application for payments event and its results on milk mar- for milk loss. keting for the loss period. (a) The affected farmer or his legal (c) The quantity and butterfat test of representative must sign and file an whole milk produced and marketed application for payment on a form during the base period. This informa- which is approved for that purpose by tion must be a certified statement the Deputy Administrator. The form from the affected farmer’s milk han- must be filed with the county FSA of- dler or any other evidence the FSA fice for the county where the farm county committee accepts as an accu- headquarters are located no later than rate record of milk production and but- 60 days after the designated deadline terfat tests during the base period. announced by the Secretary for 2018 (d) The average number of dry cows, and 2019 losses. (b) The application for payment will bred heifers, and cows milked during cover application periods of at least 30 the base period and during each pay pe- days, except that, if the entire applica- riod in the application. tion period, or the last application pe- (e) If the affected farmer markets his riod, is shorter than 30 days, applica- whole milk through a milk handler, a tions for payment may be filed for such statement from the milk handler show- shorter period. The application for paying, for each pay period in the applica- ment must be accompanied by the in- tion period, the average price per hun- formation required for the Milk Loss dred-weight of whole milk similar in Program as any other information quality to that marketed by the af- which will enable the FSA county com- fected farmer during the base period mittee to determine whether the mak- used to determine his normal mar- ing of this payment is precluded for ketings. If the milk handler has infor- any of the reasons as determined ineli- mation as to the transportation, ad- gible by the Deputy Administrator. ministrative, and other costs of mar- § 760.1708 Payment limitation and keting which are normally incurred by AGI. producers who market through the (a) Per loss year, a person or legal en- milk handler but which the affected tity, other than a joint venture or gen- farmer did not incur because of the eral partnership, is eligible to receive, dumping or removal of his whole milk directly or indirectly payments of not from the market, the average price more than $125,000. stated by the milk handler will be the (b) The direct attribution provisions average gross price paid producers less in § 760.1507 apply for payment limita- any such costs. If the milk handler tion as defined and used in this sub- does not have such information, the af- part. fected farmer will furnish a statement setting forth such costs, if any. § 760.1709 Limitation of authority. (f) The amount of proceeds, if any, re- (a) FSA county executive directors ceived by the affected farmer from the and State and county committees do marketing of whole milk produced dur- not have authority to modify or waive ing the application period. any of the provisions of the regulations (g) The amount of any payments not in this subpart. subject to refund made to the affected (b) The FSA State committee may farmer by the milk handler with re- take any action authorized or required spect to the whole milk produced dur- by the regulations in this subpart to be ing the application period and remove taken by the FSA county committee from the commercial market. when such action has not been taken by the FSA county committee. The (h) Such other information as the FSA State committee may also: FSA county committee may request to (1) Correct, or require a county com- enable the FSA county committee or mittee to correct, any action taken by the Deputy Administrator to make the such county committee which is not in determinations required in this sub- accordance with the regulations in this part. subpart; or

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(2) Require a county committee to setoff action, either by administrative withhold taking any action which is appeal or by legal action. not in accordance with the regulations in this subpart. § 760.1712 Overdisbursement. (c) No delegation herein to a State or If the milk loss payment disbursed to county committee will preclude the an affected farmer exceeds the amount Deputy Administrator or his designee authorized under the regulations in from determining any question arising this subpart, the affected farmer or under the regulations in this subpart manufacturer will be personally liable or from reversing or modifying any de- for repayment of the amount of such termination made by a State or county excess. committee. § 760.1713 Death, incompetency, or dis- § 760.1710 Estates and trusts; minors. appearance. (a) A receiver of an insolvent debtor’s In the case of the death, incom- estate and the trustee of a trust estate petency, or disappearance of any af- will, for the purpose of this subpart, be fected farmer who would otherwise re- considered to represent an insolvent af- ceive a milk loss payment, such pay- fected farmer or manufacturer and the ment may be made to the person or beneficiaries of a trust, respectively, persons specified in the regulations and the production of the receiver or contained in part 707 of this chapter. trustee will be considered to be the The person requesting such payment production of the person or manufac- must file Form FSA–325, ‘‘Application turer he represents. Program docu- for Payment of Amounts Due Persons ments executed by any such person will Who Have Died, Disappeared, or Have be accepted only if they are legally Been Declared Incompetent,’’ as pro- valid and such person has the authority vided in that part. to sign the applicable documents. (b) An affected dairy farmer or manu- § 760.1714 Records and inspection of facturer who is a minor will be eligible records. for milk loss payments only if he meets (a) The affected farmer, as well as his one of the following requirements: milk handler and any other person who (1) The right of majority has been furnished information to such farmer conferred on him by court proceedings or to the FSA county committee for or by statute; the purpose of enabling such farmer to (2) A guardian has been appointed to receive a milk loss payment under this manage his property and the applicable subpart, must maintain any existing program documents are signed by the books, records, and accounts sup- guardian; or porting any information so furnished (3) A bond is furnished under which for 3 years following the end of the the surety guarantees any loss in- year during which the application for curred for which the minor would be payment was filed. liable had he been an adult. (b) The affected farmer, his milk handler, and any other person who fur- § 760.1711 Setoffs. nishes such information to the affected (a) If the affected farmer or manufac- farmer or to the FSA county com- turer is indebted to any agency of the mittee must permit authorized rep- United States and such indebtedness is resentatives of the Department of Agri- listed on the county debt record, milk culture and the General Accounting Of- loss payments due the affected farmer fice, during regular business hours, to the regulations in this part will be ap- inspect, examine, and make copies of plied, as provided in the Secretary’s such books, records, and accounts. setoff regulations, 7 CFR part 13, to such indebtedness. § 760.1715 Assignment. (b) Compliance with the provisions of No assignment will be made of any this section will not deprive the af- milk loss payment due or to come due fected farmer of any right he would under the regulations in this subpart. otherwise have to contest the justness Any assignment or attempted assign- of the indebtedness involved in the ment of any indemnity payment due or

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to come due under this subpart will be 761.53 Interest bearing accounts. null and void. 761.54 Withdrawals from a supervised bank account. § 760.1716 Instructions and forms. 761.55 Closing a supervised bank account. 761.56–761.100 [Reserved] Affected farmers may obtain information necessary to make application Subpart C—Supervised Credit for a milk loss payment from the county FSA office. 761.101 Applicability. 761.102 Borrower recordkeeping, reporting, § 760.1717 Availability of funds. and supervision. 761.103 Farm assessment. Milk loss program payments will be 761.104 Developing the farm operating plan. made on a first-come, first-served 761.105 Year-end analysis. basis. Applications received after all 761.106–761.200 [Reserved] funds are used will not be paid. Subpart D—Allocation of Farm Loan § 760.1718 Calculating payments for Programs Funds to State Offices milk losses. (a) Payments made under this sub- 761.201 Purpose. part to a participant for loss of milk as 761.202 Timing of allocations. a result of a qualifying disaster event 761.203 National reserves for Farm Owner- ship and Operating loans. are calculated as follows: 761.204 Methods of allocating funds to State (1) Amount of the fair market value Offices. of the farmer’s normal marketings for 761.205 Computing the formula allocation. the application period; less 761.206 Pooling of unobligated funds allo- (2) Any amount the farmer received cated to State Offices. for whole milk marketed during the 761.207 Distribution of loan funds by State applications period; and Offices. (3) Any payment not subject to re- 761.208 Target participation rates for so- fund which the farmer received from a cially disadvantaged groups. milk handler with respect to whole 761.209 Loan funds for beginning farmers. milk removed from the commercial 761.210 CL funds. 761.211 Transfer of funds. market during the application period; (4) Multiplied by a program factor of Subpart F—Farm Loan Programs Debt 75 percent. Settlement (b) [Reserved] 761.401 Purpose. PART 761—FARM LOAN PRO- 761.402 Abbreviations and definitions. 761.403 General. GRAMS; GENERAL PROGRAM 761.404 Eligibility. ADMINISTRATION 761.405 Application. 761.406 Types of debt settlement. Subpart A—General Provisions 761.407 Failure to pay. 761.408 Administrator authority. Sec. 761.1 Introduction. AUTHORITY: 5 U.S.C. 301 and 7 U.S.C. 1989. 761.2 Abbreviations and definitions. SOURCE: 72 FR 63285, Nov. 8, 2007, unless 761.3 Civil rights. otherwise noted. 761.4 Conflict of interest. 761.5 Restrictions on lobbying. 761.6 Appeals. Subpart A—General Provisions 761.7 Appraisals. 761.8 Loan limitations. § 761.1 Introduction. 761.9 Interest rates for direct loans. 761.10 Planning and performing construc- (a) The Administrator delegates the tion and other development. responsibility to administer Farm 761.11–761.50 [Reserved] Loan Programs of the Consolidated Farm and Rural Development Act (7 Subpart B—Supervised Bank Accounts U.S.C. 1921 et seq.) to the Deputy Ad- 761.51 Establishing a supervised bank ac- ministrator for Farm Loan Programs count. subject to any limitations established 761.52 Deposits into a supervised bank ac- in 7 CFR 2.16(a)(2) and 7 CFR 2.42. count. (b) The Deputy Administrator:

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