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2003-2005 Crop Disaster Programs
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 29, 2005 (Volume 70, Number 59)]
[Rules and Regulations]
[Page 15725-15736]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr05-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR 1479
RIN 0560-AH24
2003-2005 Crop Disaster Programs
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Final rule.
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SUMMARY: This rule implements portions of the Military Construction,
Appropriations and Emergency Hurricane Supplemental Appropriations Act,
2005 enacted October 13, 2004 (the 2004 Act), to authorize crop-loss
disaster assistance for producers who suffered 2003, 2004, or 2005 crop
losses caused by damaging weather and related conditions. Also included
under this rule is authority for disaster assistance specifically for
producers in Virginia, and producers of fruit and vegetable crops
located in North Carolina that suffered losses due to adverse weather
and related conditions that occurred in 2003.
EFFECTIVE DATE: March 28, 2005.
FOR FURTHER INFORMATION CONTACT: Eloise Taylor, Chief, Compliance
Branch, Production, Emergencies, and Compliance Division, Farm Service
Agency (FSA), United States Department of Agriculture, STOP 0517, 1400
Independence Avenue, SW., Washington, DC 20250-0517; telephone (202)
720-9882; e-mail Eloise_Taylor@wdc.usda.gov.
Persons with disabilities who require alternative means for
communication (Braille, large print, audio tape, etc.) should contact
the USDA Target Center at (202) 720 2600 (voice and TDD).
Background
Disaster Assistance for Crop Producers
Division B of the 2004 Act (Pub. L. 108-324, 118 Stat. 1220,
October 13, 2004) authorizes the Secretary, generally, to provide
assistance to crop producers for qualifying crop or crop quality losses
due to damaging weather and related conditions for one, but not more
than one of the 2003, 2004, or 2005 crop years in the same manner as
provided for eligible crop losses under section 815 of the
Agricultural, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2001 (Pub. L. 106-387; 114 Stat.
1549A-55) (2001 Act). The 2001 Act provided coverage for 2000 crop
losses and was codified in 7 CFR part 1480 (66 FR 15979, March 21,
2001). Eligible crop losses for 2005 are limited to only those losses
caused by a hurricane or tropical storm of the 2004 hurricane season in
counties declared disaster areas by the President. The 2004 Act
specifies, too, that notwithstanding the crop-year election otherwise
required, $53 million shall be provided to the Secretary of which $50
million shall be for losses located in the Commonwealth of Virginia and
$3 million shall be for fruit and vegetable losses in North Carolina
specifically caused by adverse weather and related conditions in 2003.
Special approved yields based on actual production are prohibited
unless production reports were submitted before enactment of the 2005
Act. The statute provides that total assistance provided to a producer
for a crop year under the Crop Disaster Program (CDP) (including the
Virginia and North Carolina Programs), together with any amount
provided to the same producer for the same crop made pursuant to any
crop insurance program, and/or the Noninsured Crop Disaster Assistance
Program (NAP), plus the value of the crop that was not lost, may not
exceed 95 percent of the value of the crop in the absence of a loss, as
estimated by the Secretary.
The same loss thresholds used with respect to the 2000 CDP are
applicable to the 2003, 2004, and 2005 CDP, including those losses
under the Virginia and North Carolina provisions. If a producer under
this rule seeks payments with regard to a crop for which insurance was
available under a Federal Crop Insurance Act (FCIA) plan, but for which
such insurance was not obtained, the producer must purchase crop
insurance coverage at a level greater than the level available under
the catastrophic risk protection for each of the next two subsequent
crops. Also, in order to obtain benefits for 2003, 2004, or 2005 CDP,
or the Virginia and North Carolina programs, for a ``non-insurable''
crop (i.e., a crop for which FCIA related insurance is not available),
and for which NAP coverage was not obtained, the producer must pay the
applicable service fee and complete all paperwork in accordance with
NAP requirements for the next two crops. Producers who fail to agree
with these requirements or fail to obtain the correct acreage as
required will be required to refund the assistance provided under this
rule, plus interest.
Applications for 2003, 2004 or 2005 CDP (including applications
under the Virginia and North Carolina special loss provisions) must be
submitted during the sign-up period as announced by the Deputy
Administrator. False certifications by producers carry strict penalties
and FSA will validate applications with random spot-checks of acreage
and production evidence.
The 2004 Act provides that persons who received payment under the
special Florida Disaster Program operated by USDA are not eligible
under this new 2003-2005 Crop Disaster Program. A payment limitation of
$80,000 per ``person,'' as defined by part 1400 of this chapter, will
be applicable to the total, for each crop year, of all 2003, 2004 and
2005 CDP benefits (including assistance under the special provisions
for Virginia and North Carolina crops). As provided in the 2004 Act,
unlike disaster programs in the past, the average adjusted gross income
(AGI) limitation as administered under 7 CFR part 1400, subpart G, will
apply rather than a gross revenue test Under the AGI test, producers
will not be eligible for 2003, 2004 or 2005 CDP benefits, or benefits
under the Virginia and North Carolina crop-loss provisions, if the
average AGI of the individual or entity exceeds $2.5 million and less
than 75 percent of the average AGI is derived from farming, ranching,
or forestry operations. AGI eligibility will be based on the average of
the adjusted gross incomes for the three tax years immediately
preceding the tax year in which the disasters occurred, with the
exclusion of any
[[Page 15726]]
year(s) the individual or entity, as determined under part 1400, did
not have income or had an AGI of zero. Other restrictions apply. Crop
losses that are not weather-related are not covered.
Cost-Benefit Analysis Summary
Payments for RMA-insured crops will be made at 65 percent of the
price for insured and uninsurable crops, and at 60 percent of the price
for uninsured crops. Payments for insured crops will be made at a
slightly higher rate to provide an incentive to purchase crop
insurance. Payments for non-insurable crops will also be made at the
higher level because insurance is not available for these crops. Crop
losses under the 2003, 2004 and 2005 CDP are expected to be about $2.75
billion. Crop losses under the Virginia and North Carolina provision
are expected to be $53 million. The $80,000 payment limitation and the
$2.5 million AGI limitation will direct the distribution of payments
more toward relatively smaller operations. In the absence of any
limitations of payment and income applied, large operations would
account for a disproportionate share of the crop-loss assistance.
SUPPLEMENTARY INFORMATION:
Notice and Comment
Section 101(g) of Division B of the 2004 Act requires that these
regulations be promulgated without regard to the notice and comment
provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary
of Agriculture effective July 24, 1971 (36 FR 13804), relating to
notice and comment rulemaking and public participation in rulemaking.
These regulations are thus issued as final.
Executive Order 12866
This final rule has been determined to be economically significant
under Executive Order 12866 and has been reviewed by the Office of
Management and Budget (OMB). A Cost-Benefit Analysis was completed and
is summarized following the Background section.
Federal Assistance Programs
The title and number of the Federal assistance program, as found in
the Catalog of Federal Domestic Assistance, to which this final rule
applies are: 10.073--Crop Disaster Program.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because neither the Secretary of Agriculture nor CCC are required by 5
U.S.C. 553 or any other law to publish a notice of proposed rulemaking
for the subject matter of this rule.
Environmental Review
The environmental impacts of this rule have been considered
consistent with the National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. 4321 et seq., the regulations of the Council on Environmental
Quality (40 CFR parts 1500 through 1508), and regulations of the Farm
Service Agency (FSA) of the Department of Agriculture (USDA) for
compliance with NEPA, 7 CFR part 799. An Environmental Evaluation was
completed and it was determined that this action does not have the
potential to significantly impact the quality of the human environment
and, therefore, the rule is categorically excluded from further review
under NEPA. A copy of the environmental evaluation is available for
inspection and review upon request.
Executive Order 12778
The final rule has been reviewed in accordance with Executive Order
12778. This final rule preempts State laws that are inconsistent with
its provisions, but the rule is not retroactive. Before any judicial
action may be brought concerning this rule, all administrative remedies
must be exhausted.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
See the notice related to 7 CFR part 3015, subpart V, published at 48
FR 29115 (June 24, 1983).
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does
not apply to this rule because neither the Secretary of Agriculture nor
CCC are required by 5 U.S.C. 553 or any other law to publish a notice
of proposed rulemaking for the subject matter of this rule. Also, the
rule imposes no mandates as defined in UMRA.
Small Business Regulatory Enforcement Fairness Act of 1996
Section 101(g) of Division B of the 2004 Act requires that the
Secretary use the authority in section 808 of the Small Business
Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121 (SBREFA),
which allows an agency to forgo SBREFA's usual 60-day Congressional
Review delay of the effective date of a major regulation if the agency
finds that there is a good cause to do so. Accordingly, this rule is
effective upon the date of filing for public inspection by the Office
of the Federal Register.
Paperwork Reduction Act
Section 101(g) of Division B the 2004 Act requires that these
regulations be promulgated and the activities under this rule be
administered without regard to the Paperwork Reduction Act. This means
that the information to be collected from the public to implement these
provisions and the burden, in time and money, the collection of the
information would have on the public does not have to be approved by
the Office of Management and Budget or be subject to the normal
requirement for a 60-day public comment period.
Government Paperwork Elimination Act
CCC is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general, and the FSA in particular, to provide
the public the option of submitting information or transacting business
electronically to the maximum extent possible. Because of the need to
publish these regulations quickly, the forms and other information
collection activities required to be utilized by a person subject to
this rule are not yet fully implemented in a way that would allow the
public to conduct business with CCC electronically. Accordingly, at
this time, all forms required to be submitted under this rule may be
submitted to CCC by mail or FAX.
List of Subjects in 7 CFR 1479
Agricultural commodities, Crop insurance, Disaster assistance.
Accordingly, 7 CFR part 1479 is added to read as follows:
PART 1479--2003-2005 CROP DISASTER PROGRAM
Sec.
1479.100 Applicability.
1479.101 Administration.
1479.102 Definitions.
1479.103 Producer eligibility.
1479.104 Time for filing application.
1479.105 Limitations on payments and other benefits.
1479.106 Requirement to purchase crop insurance and non-insurable coverage.
1479.107 Miscellaneous provisions.
1479.108 Additional general provisions.
1479.109 Eligible disaster conditions.
1479.110 Qualifying 2003, 2004, or 2005-crop losses.
1479.111 Rates and yields; calculating payments.
1479.112 Production losses, producer responsibility.
1479.113 Determination of production.
[[Page 15727]]
1479.114 Calculation of acreage for crop losses other than prevented
planted.
1479.115 Calculation of prevented planted acreage.
1479.116 Quantity adjustments for diminished quality for certain
crops.
1479.117 Value loss crops.
1479.118 Other provisions for specialty crops.
1479.119 2005 crop losses only.
1479.120 Quality losses for 2003, 2004, and 2005 crops.
1479.121 Virginia crop losses.
1479.122 North Carolina fruit and vegetable crop losses.
1479.123 Misrepresentation, and scheme or device.
1479.124 Offsets, assignments, and debt settlement.
1479.125 Compliance with highly erodible land, and wetland
conservation provisions.
Authority: Pub. L. 106-387, 114 Stat. 1549; Pub. L. 108-324, 118
Stat. 1220; 15 U.S.C. 14 et seq.
Sec. 1479.100 Applicability.
This part sets forth the terms and conditions for the 2003, 2004,
and 2005-Crop Disaster Program (CDP). The CDP makes disaster assistance
payments available to producers who have incurred losses in quantity or
quality on eligible 2003, 2004, or 2005 crops due to disasters as
determined by the Commodity Credit Corporation (CCC) under provisions
of Division B of the Military Construction Appropriations and Emergency
Hurricane Supplemental Appropriations Act, 2005 (Pub. L. 108-324).
Provisions of previous crop disaster programs shall continue to be
administered under regulations previously issued.
Sec. 1479.101 Administration.
(a) The program will be administered under the general supervision
of the Executive Vice President, CCC, and shall be carried out in the
field by the Farm Service Agency (FSA) State and county committees.
(b) State and county committees and representatives do not have the
authority to modify or waive any of the provisions of this part.
(c) The State committee shall take any action required by this part
that has not been taken by a county committee. The State committee
shall also:
(1) Correct or require a county committee to correct any action
taken by such FSA county committee that is not in accordance with this
part; and
(2) Require a county committee to withhold taking or reverse any
action that is not in accordance with this part.
(d) No delegation in this part to a State or county committee shall
prevent the Deputy Administrator from determining any question arising
under the program or from reversing or modifying any determination made
by a State or county committee.
(e) The Deputy Administrator may authorize State and county
committees to waive or modify non-statutory deadlines or other program
requirements in cases where lateness or failure to meet such does not
adversely affect the operation of the program.
Sec. 1479.102 Definitions.
The definitions in this section apply to all determinations made
under this part. The terms defined in part 718 of this title and parts
1400 and 1437 of this chapter shall also be applicable, except where
those definitions conflict with the definitions set forth in this
section. The definitions follow:
Actual production means the total quantity of the crop appraised,
harvested or that could have been harvested, as determined by the FSA
State or county committee in accordance with instructions issued by the
Deputy Administrator.
Additional coverage means a plan of insurance established by FCIC
that provides coverage comparable to a level for a single crop that is
equal to at least 65 percent of the approved yield indemnified at 100
percent of the expected market price.
Administrative fee means an amount the producer must pay for
Noninsured Crop Disaster Assistance Program (NAP) enrollment for non-
insurable crops.
Appraised production means production determined by FSA, or a
company reinsured by the Federal Crop Insurance Corporation (FCIC),
that was unharvested but that was determined to reflect the crop's
yield potential at the time of appraisal.
Approved yield means the amount of production per acre, computed in
accordance with FCIC's Actual Production History Program at 7 CFR part
400, subpart G or, for crops not included under 7 CFR part 400, subpart
G, the yield used to determine the guarantee. For crops covered under
NAP, the approved yield is established according to part 1437 of this
chapter. Only the approved yields based on production evidence
submitted to FSA prior to the enactment of Pub. L. 108-324 will be used
for purposes of the 2003, 2004, or 2005 CDP. Other yields may be
assigned when an eligible approved yield is not available.
Aquaculture means the reproduction and rearing of aquatic species
in controlled or selected environments including, but not limited to,
ocean ranching, except private ocean ranching of Pacific salmon for
profit in those States where such ranching is prohibited by law.
Aquaculture facility means any land or structure including, but not
limited to, a laboratory, hatchery, rearing pond, raceway, pen,
incubator, or other equipment used in aquaculture.
Aquaculture species means any aquaculture species as defined in
part 1437 of this chapter.
Average market price means the price or dollar equivalent on an
appropriate basis for an eligible crop established by CCC for
determining payment amounts. Such price will be based on the harvest
basis without the inclusion of transportation, storage, processing,
packing, marketing, or other post-harvesting expenses and will be based
on historical data.
Catastrophic risk protection means the minimum level of coverage
offered by FCIC.
CCC means the Commodity Credit Corporation.
Control county means, for a producer with farming interests in only
one county, the FSA county office in which the producer's farm is
administratively located or, for a producer with farming interests that
are administratively located in more than one county, the FSA county
office designated by FSA to control the payments received by the producer.
County committee means the FSA county committee.
Crop insurance means an insurance policy reinsured by FCIC under
the provisions of the Federal Crop Insurance Act, as amended.
Crop year means:
(1) For insured and uninsured crops, the crop year as defined
according to the applicable crop insurance policy;
(2) For non-insurable crops, the year harvest normally begins for
the crop;
(3) For all aquaculture species and nursery crops, the period from
October 1 through the following September 30; and
(4) For honey, the period running from January 1 through the
following December 31.
Disaster means damaging weather, including drought, excessive
moisture, hail, freeze, tornado, hurricane, typhoon, excessive wind,
excessive heat, weather-related saltwater intrusion, weather-related
irrigation water rationing, and earthquake and volcanic eruptions, or
any combination thereof. Disaster includes a related condition that
occurs as a result of the damaging weather and exacerbates the
condition of the crop, such as disease and insect infestation.
Eligible crop means a crop (except sugarcane) insured by FCIC as
defined
[[Page 15728]]
in part 400 of this title, or included under NAP as defined under part
1437 of this chapter. Losses of livestock and livestock related losses
are not compensable under this part, but may be compensable under part
1439 of this chapter to the extent provided for in that part.
End use means the purpose for which the harvested crop is used,
such as grain, hay, or seed.
Expected market price (price election) means the price per unit of
production (or other basis as determined by FCIC) anticipated during
the period the insured crop normally is marketed by producers. This
price will be set by FCIC before the sales closing date for the crop.
The expected market price may be less than the actual price paid by
buyers if such price typically includes remuneration for significant
amounts of post-production expenses such as conditioning, culling,
sorting, packing, etc.
Expected production means, for an agricultural unit, the historic
yield multiplied by the number of planted or prevented acres of the
crop for the unit.
FCIC means the Federal Crop Insurance Corporation, a wholly owned
Government Corporation within USDA.
Final planting date means the date established by the Risk
Management Agency (RMA) for insured and uninsured crops by which the
crop must be initially planted in order to be insured for the full
production guarantee or amount of insurance per acre. For non-insurable
crops, the final planting date is the end of the planting period for
the crop as determined by CCC.
Flood prevention means:
(1) For aquaculture species, placing the aquaculture facility in an
area not prone to flood; and
(2) For raceways, providing devices or structures designed for the
control of water level; and with respect to nursery crops, placing
containerized stock in a raised area above expected flood level and
providing draining facilities, such as drainage ditches or tile,
gravel, cinder, or sand base.
FSA means the Farm Service Agency.
Good nursery growing practices means utilizing flood prevention,
growing media, fertilization to obtain expected production results,
irrigation, insect and disease control, weed, rodent and wildlife
control, and over winterization storage facilities.
Growing media means:
(1) For aquacultural species, media that provides nutrients
necessary for the production of the aquacultural species and protects
the aquacultural species from harmful species or chemicals;
(2) For nursery crops, media designed to prevent ``root rot'' and
other media related problems through a well-drained media with a
minimum 20 percent air pore space and pH adjustment for the type of
plant produced.
Harvested means:
(1) For insured and uninsured crops, harvested as defined according
to the applicable crop insurance policy;
(2) For non-insurable single harvest crops, that a crop has been
removed from the field, either by hand or mechanically, or by grazing
of livestock;
(3) For non-insurable crops with potential multiple harvests in 1
year or harvested over multiple years, that the producer has, by hand
or mechanically, removed at least one mature crop from the field during
the crop year:
(4) For mechanically-harvested non-insurable crops, that the crop
has been removed from the field and placed in a truck or other
conveyance, except hay is considered harvested when in the bale,
whether removed from the field or not. Grazed land will not be
considered harvested for the purpose of determining an unharvested or
prevented planting payment factor.
Historic yield means, for a unit, the higher of the county average
yield or the producer's approved yield.
(1) An insured participant's yield shall be the higher of the
county average yield listed on the crop table or the approved federal
crop insurance APH, for the disaster year.
(2) NAP participant's yield shall be the higher of the county
average yield as listed on the crop table or approved NAP APH for the
disaster year.
(3) Participants without federal crop insurance or NAP coverage for
the disaster year shall be assigned the county average listed on the
crop table.
Insurance is available means when crop information is contained in
RMA's county actuarial documents for a particular crop and a policy can
be obtained through the RMA system, except, if the Group Risk Plan or
Adjusted Gross Revenue Plan of crop insurance was the only plan of
insurance available for the crop in the county in the applicable crop
year, insurance is considered not available for that crop.
Insured crops means those crops covered by crop insurance pursuant
to Chapter IV of this title and for which the producer purchased either
the catastrophic or buy-up level of crop insurance so available.
Limited coverage means plans of insurance established by FCIC that
provides coverage comparable to a level for a single crop that is equal
to or greater than 50 percent of the approved yield indemnified at 100
percent of the expected market price, but less than 65 percent of the
approved yield indemnified at 100 percent of the expected market price.
Maximum loss level means the maximum level of crop loss to be
applied to a producer without acceptable production records. Loss
levels are expressed in either a percent of loss or yield per acre, and
should reflect the amount of production that a producer should have
made considering the eligible disaster conditions in the area or
county, as determined by the county committee in accordance with
instructions issued by the Deputy Administrator.
Multi-use crop means a crop intended for more than one end use
during the calendar year such as grass harvested for seed, hay, and
grazing.
Multiple cropping means the planting of two or more different crops
on the same acreage for harvest within the same crop year.
Multiple planting means the planting for harvest of the same crop
in more than one planting period in a crop year on different acreage.
NASS means the National Agricultural Statistics Service.
Net crop insurance indemnity means the indemnity minus the producer
paid premium.
Non-insurable crop means a crop for which FCIC crop insurance was
not available.
Normal mortality means the percentage of dead aquaculture species
that would normally occur during the crop year.
Person means person as defined in part 1400 of this chapter, and
all rules with respect to the determination of a person found in that
part shall be applicable to this part. However, the determinations made
in this part in accordance with 7 CFR part 1400, subpart B, Person
Determinations, shall also take into account any affiliation with any
entity in which an individual or entity has an interest, irrespective
of whether or not such entities are considered to be engaged in farming.
Planted acreage means land in which seed, plants, or trees have
been placed, appropriate for the crop and planting method, at a correct
depth, into a seed bed that has been properly prepared for the planting
method and production practice normal to the area as determined by the
county committee.
Prevented planting means the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC, according to Sec. 1479.115.
[[Page 15729]]
Production means quantity of the crop or commodity produced
expressed in a specific unit of measure such as bushels, pounds, etc.
Rate means price per unit of the crop or commodity.
Related condition means, with respect to a disaster, a condition
that causes deterioration of a crop, such as insect infestation, plant
disease, or aflatoxin, that is accelerated or exacerbated as a result
of damaging weather, as determined in accordance with instructions
issued by the Deputy Administrator.
Reliable production records means evidence provided by the producer
that is used to substantiate the amount of production reported when
verifiable records are not available, including copies of receipts,
ledgers of income, income statements of deposit slips, register tapes,
invoices for custom harvesting, and records to verify production costs,
contemporaneous measurements, truck scale tickets, and contemporaneous
diaries that are determined acceptable by the county committee.
Repeat crop means with respect to a producer's production, a
commodity that is planted or prevented from being planted in more than
one planting period on the same acreage in the same crop year.
RMA means the Risk Management Agency.
Salvage value means the dollar amount or equivalent for the
quantity of the commodity that cannot be marketed or sold in any
recognized market for the crop.
Secondary use means the harvesting of a crop for a use other than
the intended use, except for crops with intended use of grain, but
harvested as silage, ensilage, cobbage, hay, cracked, rolled, or crimped.
Secondary use value means the value determined by multiplying the
quantity of secondary use times the CCC-established price for this use.
State committee means the FSA State committee.
Uninsured crop means a crop for which Federal crop insurance was
available, but the producer did not purchase insurance.
Unit means, unless otherwise determined by the Deputy
Administrator, basic unit as described in part 457 of this title that,
for ornamental nursery production, shall include all eligible plant
species and sizes.
Unit of measure means:
(1) For all insured and uninsured crops, the FCIC-established unit
of measure;
(2) For all non-insurable crops, the established unit of measure,
if available, used for the 2003, 2004, or 2005 Noninsured Crop
Assistance Program price and yield;
(3) For aquaculture species, a standard unit of measure such as
gallons, pounds, inches or pieces, established by the State committee
for all aquaculture species or varieties;
(4) For turf-grass sod, a square yard;
(5) For maple sap, a gallon; and
(6) For all other crops, the smallest unit of measure that lends
itself to the greatest level of accuracy with minimal use of fractions,
as determined by the State committee.
United States means all 50 States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
and to the extent the Deputy Administrator determines it to be feasible
and appropriate, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands and the former Trust Territory of the Pacific Islands,
which include Palau, Federated States of Micronesia and the Marshall
Islands.
USDA means United States Department of Agriculture.
Value-loss crop has the meaning assigned in part 1437 of this chapter.
Verifiable production record means evidence that is used to
substantiate the amount of production reported and that can be verified
by CCC through an independent source.
Yield means unit of production, measured in bushels, pounds, etc.,
per area of consideration, usually measured in acres.
Sec. 1479.103 Producer eligibility.
(a) Producers in the United States will be eligible to receive
disaster benefits under this part only if they have suffered losses of
eligible crops in 2003, 2004, or 2005, as further specified in this
part, as a result of a disaster or related condition. Producers may not
receive benefits with respect to volunteer stands of crops.
(b) Payments may be made for losses suffered by an eligible
producer who is now deceased or is a dissolved entity if a
representative who currently has authority to enter into a contract for
the producer signs the application for payment. Proof of authority to
sign for the deceased producer or dissolved entity must be provided. If
a producer is now a dissolved general partnership or joint venture, all
members of the general partnership or joint venture at the time of
dissolution or their duly authorized representatives must sign the
application for payment.
(c) As a condition to receive benefits under this part, a producer
must have been in compliance with the Highly Erodible Land Conservation
and Wetland Conservation provisions of 7 CFR part 12 for the 2003,
2004, or 2005 crop year, as applicable, and must not otherwise be
barred from receiving benefits under 7 CFR part 12 or any other law.
Sec. 1479.104 Time for filing application.
Applications for benefits under the 2003, 2004, or 2005 Crop
Disaster Program must be filed in the FSA county office in the
producer's control county before the close of business on August 1,
2005, or such other date that may be announced by the Deputy Administrator.
Sec. 1479.105 Limitations on payments and other benefits.
(a) Except with respect to certain claims in Virginia and North
Carolina, as specified in Sec. Sec. 1479.121 and 1479.122, a producer
may receive disaster benefits for crop losses for only one of the 2003,
2004, or 2005 crop years as specified under this part.
(b) Payments will not be made under this part for grazing losses.
(c) CCC may divide and classify crops based on loss susceptibility,
yield, and other factors.
(d) No person, as defined by part 1400 subpart B of this chapter,
shall receive more than a total of $80,000 in disaster benefits under
this part, unless otherwise specified.
(e) No producer shall receive disaster benefits under this part in
an amount that exceeds 95 percent of the value of the expected
production for the relevant period as determined by CCC. The sum of the
value of the crop not lost, if any; the disaster payment received under
this part; and any crop insurance payment or payments received under
the NAP for losses to the same crop, cannot exceed 95 percent of what
the crop's value would have been if there had been no loss.
(f) An individual or entity whose adjusted gross income is in
excess of $2.5 million, as defined by and determined under part 1400
subpart G of this chapter, shall not be eligible to receive disaster
benefits under this part.
(g) Any person who received any payments from Section 32 of the Act
of August 25, 1935, with respect to any 2004 hurricane losses, is not
eligible for any payments under this part.
Sec. 1479.106 Requirement to purchase crop insurance and non-
insurable coverage.
(a) Except as provided further in this section, any producer who
elected not
[[Page 15730]]
to purchase crop insurance on an insurable 2003, 2004, or 2005 crop for
which the producer receives crop loss assistance or, for non-insurable
crops, elected not to participate in NAP for the year for which
benefits are received must purchase:
(1) Crop insurance with additional coverage on that crop for each
of the next 2 crop years, as applicable, for the insurable crops.
(2) NAP coverage by paying the administrative fee by the applicable
State filing deadline and complete all required program requirements,
including yearly acreage reports, for the non-insurable crop for each
of the next 2 crop years, as applicable, for the non-insurable crops.
(b) If, at the time the producer applies for the CDP and benefits
under Sec. Sec. 1479.121 or 1479.122, the sales closing date for next
year's insurable crops, or for the next year's non-insurable crops for
which the producer sought benefits under this part has passed, the
producer must purchase a crop insurance policy or obtain NAP coverage,
as applicable, for the next available 2 crop years.
(c) If any producer fails to purchase crop insurance or NAP, as
required in paragraph (a) or (b) of this section, the producer shall
reimburse CCC for the full amount of the assistance, plus interest,
provided to the producer under this part.
Sec. 1479.107 Miscellaneous provisions.
(a) A person shall be ineligible to receive disaster assistance
under this part if it is determined by the State or county committee or
an official of FSA that such person has:
(1) Adopted any scheme or other device that tends to defeat the
purpose of a program operated under this part;
(2) Made any fraudulent representation with respect to such program; or
(3) Misrepresented any fact affecting a program determination.
(b) All persons with a financial interest in the operation
receiving benefits under this part shall be jointly and severally
liable for any refund, including related charges, which is determined
to be due CCC for any reason under this part.
(c) In the event that any request for assistance or payment under
this part was established as a result of erroneous information or a
miscalculation, the assistance or payment shall be recalculated and any
excess refunded to CCC with applicable interest.
(d) The liability of any person for any penalty or sanction under
or in connection with this part, or for any refund to CCC or related
charge arising in connection therewith, shall be in addition to any
other liability of such person under any civil or criminal fraud
statute or any other provision of law including, but not limited to: 18
U.S.C. 286, 287, 371, 641, 651, 1001 and 1014; 15 U.S.C. 714m; and 31
U.S.C. 3729.
(e) Any person who is dissatisfied with a determination made with
respect to this part may make a request for reconsideration or appeal
of such determination in accordance with the regulations set forth in
parts 11 and 780 of this title.
(f) Any payment or portion thereof to any person shall be made
without regard to questions of title under State law and without regard
to any claim or lien against the crop, or proceeds thereof.
(g) For the purposes of 28 U.S.C. 3201(e), CCC waives the
restriction on receipt of funds or benefits under this program but only
as to beneficiaries who as a condition of such waiver agree to apply
the benefits received under this part to reduce the amount of the
judgment lien.
Sec. 1479.108 Additional general provisions.
(a) For calculations of loss made with respect to insured crops,
the producer's existing unit structure will be used as the basis for
the calculation and may include optional units established in
accordance with part 457 of this title. Insured crops may have basic
units established if the existing unit structure is based on enterprise
units or whole county units or written agreements. For uninsured and
non-insurable crops, basic units will be established for these purposes.
(b) County average yield for loss calculations will be the average
of the 1998 through 2002 official county yields established by CCC,
excluding the years with the highest and lowest yields, respectively.
(c) County committees will assign production or reduce the historic
yield when the county committee determines:
(1) An acceptable appraisal or record of harvested production does
not exist;
(2) The loss is due to an ineligible cause of loss or practices,
soil type, climate, or other environmental factors, that cause lower
yields than those upon which the historic yield is based;
(3) The producer has a contract providing a guaranteed payment for
all or a portion of the crop; or
(4) The crop is planted beyond the normal planting period for the crop.
(d) The county committee shall establish a maximum loss level that
should reflect the amount of production producers should have produced
considering the eligible disaster conditions in the area or county for
the same crop. The maximum loss level for the county shall be expressed
as either a percent of loss or yield per acre. The maximum loss level
will apply when:
(1) Unharvested acreage has not been appraised by FSA, or a company
reinsured by FCIC; or
(2) Acceptable production records for harvested acres are not
available from any source.
(e) Assigned production or reduced yield for practices that result
in lower yields than those for which the historic yield is based shall
be established based on the acres found to have been subjected to those
practices.
(f) Assigned production for crops planted beyond the normal
planting period for the crop shall be calculated according to the
lateness of planting the crop. With the exception of replanted crops,
if the crop is planted after the final planting date by:
(1) Up to and including 10 calendar days, the assigned production
reduction will be based on one percent of the payment yield for each
day involved;
(2) Eleven (11) through 24 calendar days, the assigned production
reduction will be based on 10 percent of the payment yield plus an
additional two percent reduction of the payment yield for each day of
days 11 through 24 that are involved; and
(3) Twenty-five (25) or more calendar days or a date from which the
crop would not reasonably be expected to mature by harvest, the
assigned production reduction will be based on 50 percent of the
payment yield or such greater amount determined by the county committee
to be appropriate.
(4) CCC may adjust items 1 through 3 to make a comparable
assignment for short rotation crops such as vegetables that may have a
30-day growing period.
(g) Assigned production for producers with contracts to receive a
guaranteed payment for production of an eligible crop will be
established by the county committee by:
(1) Determining the total amount of guaranteed payment for the unit;
(2) Converting the guaranteed payment to guaranteed production by
dividing the total amount of guaranteed payment by the approved county
price for the crop or variety or such other factor deemed appropriate
if otherwise the production would appear to be too high; and
(3) Establishing the production for the unit as the greater of the
actual net production for the unit or the guaranteed payment, or
combination thereof if greater.
[[Page 15731]]
Sec. 1479.109 Eligible disaster conditions.
(a) Except as provided in paragraphs (b) and (c) of this section,
this part applies to losses where the crop could not be planted or crop
production, both in quantity and quality, was adversely affected by
disasters as defined in Sec. 1479.102, or:
(1) Insect infestation as a related condition to damaging weather
if documented by COC with published data;
(2) Disease as a related condition to damaging weather;
(3) Salt water intrusion of an irrigation supply;
(4) Irrigation water rationing if proof is provided that water was
rationed by a Government entity or water district (unless the producer
was compensated by the Government entity or water district for a
disaster or conservation purpose);
(5) Lack of water supply due to drought conditions for irrigated crops;
(6) Other weather-related factors as determined by the Deputy
Administrator.
(b) Qualifying crop losses for the 2005 crop are limited to only
those losses caused by a hurricane or tropical storm of the 2004
hurricane season in counties declared disaster areas by the President.
(c) Disaster benefits will not be available under this part if the
crop could not be planted or crop production, both in quantity and
quality, was adversely affected by:
(1) Poor farming practices;
(2) Poor management decisions; or
(3) Drifting herbicides.
Sec. 1479.110 Qualifying 2003, 2004, or 2005-crop losses.
(a) To receive disaster benefits under this part, the county
committee must determine that because of an eligible disaster
condition, the producer with respect to the 2003, 2004, or 2005 crop year:
(1) Was prevented from planting a crop;
(2) Sustained a loss in excess of 35 percent of the expected
production of a crop; or
(3) Sustained a loss in excess of 35 percent of the value for value
loss crops.
(b) Calculation of benefits under this part shall not include losses:
(1) That are the result of poor management decisions, poor farming
practices, or drifting herbicides as determined by the county committee
on a case-by-case basis;
(2) That are the result of the failure of the producer to re-seed
or replant to the same crop in the county where it is customary to re-
seed or replant after a loss;
(3) That are not as a result of a damaging weather or a weather
related condition;
(4) To crops not intended for harvest in crop year 2003, 2004, or 2005;
(5) To losses of by-products resulting from processing or
harvesting a crop, such as cottonseed, peanut shells, wheat or oat straw;
(6) To home gardens;
(7) That are a result of water contained or released by any
governmental, public, or private dam or reservoir project if an
easement exists on the acreage affected for the containment or release
of the water; or
(8) If losses could be attributed to conditions occurring outside
of the applicable crop year growing season.
(c) Calculation of benefits under this part for ornamental nursery
stock shall not include losses:
(1) Caused by a failure of power supply or brownouts;
(2) Caused by the inability to market nursery stock as a result of
quarantine, boycott, or refusal of a buyer to accept production;
(3) Caused by fire;
(4) Affecting crops where weeds and other forms of undergrowth in
the vicinity of the nursery stock that have not been controlled; or
(5) Caused by the collapse or failure of buildings or structures.
(d) Calculation of benefits under this part for honey where the
honey production by colonies or bees was diminished shall not include
losses:
(1) Where the inability to extract was due to the unavailability of
equipment; the collapse or failure of equipment or apparatus used in
the honey operation;
(2) Resulting from improper storage of honey;
(3) To honey production because of bee feeding;
(4) Caused by the application of chemicals;
(5) Caused by theft, fire, or vandalism;
(6) Caused by the movement of bees by the producer or any other person;
(7) Due to disease or pest infestation of the colonies; or
(e) Loss calculations shall take into account other conditions and
adjustments provided for in this part.
Sec. 1479.111 Rates and yields; calculating payments.
(a)(1) Payments made under this part to a producer for a loss on a
unit with respect to yield based crops are determined by multiplying
the payment rate established for the crop by CCC, times the loss of
production which exceeds 35 percent of the expected production, as
determined by CCC, of the unit.
(2) Payments made under this part to a producer for a loss on a
unit with respect to value-based crops are determined by multiplying
the payment rate established for the crop by CCC times the loss of
value that exceeds 35 percent of the expected production value, as
determined by CCC, of the unit.
(3) Payments made under this part may be adjusted by CCC to reflect
losses due to quality factors adversely affected by a disaster. For FSA
price support loan commodities, production to count may be reduced
using the schedule of premiums and discounts for FSA commodity loans.
Additional quality loss adjustments may be made for single market
crops, using a 20 percent quality loss threshold. The quality loss
threshold may be determined by multiplying: 65 percent of the affected
quantity, times 65 percent of the result of subtracting: the value of
the crop due to the effects of the disaster, as determined by CCC, from
the value of the crop if it had not been affected by the disaster, as
determined by CCC. Quality adjustments for multiple market crops sold
to a lower priced market as a result of poor quality will be determined
by using the difference between the average market price for the
intended use and the average market price for the actual use, as
determined by CCC.
(b) Payment rates for 2003, 2004, or 2005 year crop losses shall be:
(1) 65 percent of the maximum established RMA price for insured crops;
(2) 65 percent of the State average price for non-insurable crops; and
(3) 60 percent of the maximum established RMA price for uninsured
crops.
(c) Except as provided elsewhere in this part, disaster benefits
under this part for losses to crops shall be paid in an amount
determined by multiplying the loss of production in excess of 35
percent of the expected production by the applicable payment rate
established according to paragraph (a) of this section.
(d) Separate payment rates and yields for the same crop may be
established by the county committee as authorized by the Deputy
Administrator, when there is supporting data from NASS or other sources
approved by CCC that show there is a significant difference in yield or
value based on a distinct and separate end use of the crop. In spite of
differences in yield or values, separate rates or yields shall not be
established for crops with different cultural practices, such as
organically or hydroponically grown.
[[Page 15732]]
(e) Production from all end uses of a multi-use crop or all
secondary uses for multiple market crops will be calculated separately
and summarized together.
(f) Each eligible producer's share of a disaster payment shall be
based on the producer's share of the crop or crop proceeds, or, if no
crop was produced, the share the producer would have received if the
crop had been produced.
(g) When calculating a payment for a unit loss:
(1) An unharvested payment factor shall be applied to crop acreage
planted but not harvested;
(2) A prevented planting factor shall be applied to any prevented
planted acreage eligible for payment; and
(3) Unharvested payment factors may be adjusted if costs normally
associated with growing the crop are not incurred.
Sec. 1479.112 Production losses, producer responsibility.
(a) Where available and determined accurate, RMA loss records will
be used for insured crops.
(b) If RMA loss records are not available, or if the FSA county
committee determines the RMA loss records are inaccurate or incomplete,
or if the FSA county committee makes inquiry, producers are responsible
for:
(1) Retaining or providing, when required, the best verifiable or
reliable production records available for the crop;
(2) Summarizing all the production evidence;
(3) Accounting for the total amount of unit production for the
crop, whether or not records reflect this production;
(4) Providing the information in a manner that can be easily
understood by the county committee; and
(5) Providing supporting documentation if the county committee has
reason to question the disaster event or that all production has been
accounted for.
(c) In determining production under this section, the producer must
supply verifiable or reliable production records to substantiate
production to the county committee. If the eligible crop was sold or
otherwise disposed of through commercial channels, production records
include: Commercial receipts; settlement sheets; warehouse ledger
sheets; or load summaries; appraisal information from a loss adjuster
acceptable to CCC. If the eligible crop was farm-stored, sold, fed to
livestock, or disposed of in means other than commercial channels,
production records for these purposes include: Truck scale tickets;
appraisal information from a loss adjuster acceptable to CCC;
contemporaneous diaries; or other documentary evidence, such as
contemporaneous measurements.
(d) Producers must provide all records for any production of a crop
that is grown with an arrangement, agreement, or contract for
guaranteed payment.
Sec. 1479.113 Determination of production.
(a) Production under this part shall include all harvested
production, unharvested appraised production and assigned production
for the total planted acreage of the crop on the unit.
(b) The harvested production of eligible crop acreage harvested
more than once in a crop year shall include the total harvested
production from all these harvests.
(c) If a crop is appraised and subsequently harvested as the
intended use, the actual harvested production shall be used to
determine benefits.
(d) For all crops eligible for loan deficiency payments or
marketing assistance loans with an intended use of grain but harvested
as silage, ensilage, cobbage, hay, cracked, rolled, or crimped,
production will be adjusted based on a whole grain equivalent as
established by CCC.
(e) For crops with an established yield and market price for
multiple intended uses, a value will be calculated for each use with:
(1) The intended use or uses for disaster purposes based on
historical production and acreage evidence provided by the producer;
and
(2) The eligible acres for each use and the calculation of the
disaster payment will be determined by the county committee according
to instructions issued by the Deputy Administrator.
(f) For crops sold in a market that is not a recognized market for
the crop with no established county average yield and market price, 60
percent of the salvage value received will be deducted from the
disaster payment.
(g) If a producer does not receive compensation based upon the
quantity of the commodity delivered to a purchaser, but has an
agreement or contract for guaranteed payment for production, for
purposes of determination the production shall be the greater of the
actual production or the guaranteed payment converted to production as
determined by CCC.
(h) Production that is commingled between units before it was a
matter or combination of record and cannot be separated by using
records or other means acceptable to CCC shall be prorated to each
respective unit by CCC. Commingled production may be attributed to the
applicable unit, if the producer made the unit production of a
commodity a matter of record before commingling and does any of the
following, as applicable:
(1) Provides copies of verifiable documents showing that production
of the commodity was purchased, acquired, or otherwise obtained from
beyond the unit;
(2) Had the production measured in a manner acceptable to the
county committee; or
(3) Had the current year's production appraised in a manner
acceptable to the county committee.
(i) The county committee shall assign production for the unit when
the county committee determines that:
(1) The producer has failed to provide adequate and acceptable
production records;
(2) The loss to the crop is because of a disaster condition not
covered by this part, or circumstances other than natural disaster, and
there has not otherwise been an accounting of this ineligible cause of
loss;
(3) The producer carries out a practice, such as multiple cropping,
that generally results in lower yields than the established historic
yields;
(4) The producer has a contract to receive a guaranteed payment for
all or a portion of the crop.
(5) A crop was late-planted;
(6) Unharvested acreage was not timely appraised; or
(7) Other appropriate causes exist for such assignment as
determined by the Deputy Administrator.
(j) For peanuts, the actual production shall be all peanuts
harvested for nuts, regardless of their disposition or use, as adjusted
for low quality.
(k) For tobacco, except flue-cured and burley, the actual
production shall be the sum of the tobacco: marketed or available to be
marketed; destroyed after harvest; and produced but unharvested, as
determined by an appraisal. For flue-cured and burley tobacco, the
actual production shall be the sum of the tobacco: marketed, regardless
of whether the tobacco was produced in the current crop year or a prior
crop year; on hand; destroyed after harvest; and produced but
unharvested, as determined by an appraisal.
Sec. 1479.114 Calculation of acreage for crop losses other than
prevented planted.
(a) Acreage shall be calculated using the number of acres shown to
have been planted to a crop.
(b) In cases where there is a repeat crop or a multiple planted
crop in more than one planting period, or if there is multiple cropped
acreage meeting criteria established in paragraph (c) or (d) of this
section, each of these crops
[[Page 15733]]
may be considered separate crops for 2003, 2004, or 2005 CDP if the
county committee determines that all of the following conditions are met:
(1) Both the initial and subsequent planted crops were planted with
the intent to harvest;
(2) Both the initial and subsequent planted crops were planted
within the normal planting period for that crop;
(3) Both the initial and subsequent planted crops meet all other
eligibility provisions of this part including good farming practices;
and
(4) Each planting could reach maturity if each planting was
harvested or would have been harvested.
(c) In cases where there is multiple-cropped acreage, each crop may
be eligible for disaster assistance separately if both of the following
conditions are met:
(1) The specific crops are approved by the State Committee as
eligible multiple-cropping practices in accordance with procedures
approved by the Deputy Administrator; and
(2) The farm containing the multiple-cropped acreage has a history
of successful multiple cropping based on timely filed crop acreage reports.
(d) Producers with multiple-cropped acreage not meeting the
criteria in paragraph (c) of this section may be eligible for disaster
assistance on more than one crop if the producer has verifiable records
establishing a history of carrying out a successful multiple-cropping
practice on the specific crops for which assistance is requested. All
required records acceptable to CCC as determined by the Deputy
Administrator must be provided before payments are issued.
(e) Producers with multiple-cropped acreage not meeting the
criteria in paragraphs (c) or (d) of this section must select the crop
for which assistance will be requested. If more than one producer has
an interest in the multiple cropped acreage, all producers must agree
to the crop designated for payment by the end of the application period
or no payment will be approved for any crop on the multiple-cropped acreage.
(f) Benefits under this part shall apply to irrigated crops where
the acreage was affected by a lack of water or contamination by saltwater
intrusion of an irrigation supply resulting from drought conditions.
Sec. 1479.115 Calculation of prevented planted acreage.
(a) When determining losses under this part, prevented-planted acreage
will be considered separately from planted acreage of the same crop.
(b) Except as provided in paragraph (c) of this section, for
insured crops, disaster payments under this part for prevented-planted
acreage shall not be made unless RMA documentation indicates that the
eligible producer received a prevented planting payment under the RMA-
administered program.
(c) For insured crops, disaster payments under this part for
prevented-planted acreage will be made available for the following
crops for which prevented planting coverage was not available and for
which the county committee will make an eligibility determination
according to paragraph (d) of this section: peppers; sweet corn (fresh
market); tomatoes (fresh market); tomatoes (processing).
(d) The producer must prove, to the satisfaction of the county
committee, an intent to plant the crop and that such crop could not be
planted because of an eligible disaster. The county committee must be
able to determine the producer was prevented from planting the crop by
an eligible disaster that:
(1) Prevented other producers from planting on acreage with similar
characteristics in the surrounding area; and
(2) Occurred after the previous planting period for the crop.
(3) Unless otherwise approved by the Deputy Administrator, began no
earlier than the planting season for that crop.
(e) Prevented planted disaster benefits under this part shall not
apply to:
(1) Aquaculture, including ornamental fish; perennial forage crops
grown for hay, seed, or grazing; honey; maple sap; millet; mint;
nursery crops; cultivated wild rice; fresh market beans; cabbage,
pumpkins, sweet potatoes; winter squash, tobacco, turf grass sod, and
vine crops;
(2) Uninsured crop acreage that is unclassified for insurance purposes;
(3) Acreage that is used for conservation purposes or intended to
be left unplanted under any CCC or USDA program;
(4) Any acreage on which a crop other than a cover crop was
harvested, hayed, or grazed during the crop year;
(5) Any acreage for which a cash lease payment is received for the
use of the acreage the same crop year unless the county committee
determines the lease was for haying and grazing rights only and was not
a lease for use of the land;
(6) Acreage for which planting history or conservation plans
indicate that the acreage would have remained fallow for crop rotation
purposes;
(7) Acreage for which the producer or any other person received a
prevented planted payment for any crop for the same acreage, excluding
share arrangements;
(8) Acreage for which the producer cannot provide proof to the
county committee that inputs such as seed, chemicals, and fertilizer
were available to plant and produce a crop with the expectation of
producing at least a normal yield; and
(9) Any other acreage for which, for whatever reason, there is
cause to question whether the crop could have been planted for a
successful and timely harvest, or for which prevented planting credit
is not allowed under the provisions of this part.
(f) Prevented planting payments are not provided on acreage that
had either a previous or subsequent crop planted in the same crop year
on the acreage, unless the county committee determines that all of the
following conditions are met:
(1) There is an established practice of planting two or more crops
for harvest on the same acreage in the same crop year;
(2) Both crops could have reached maturity if each planting was
harvested or would have been harvested;
(3) Both the initial and subsequent planted crops were planted or
prevented-planting within the normal planting period for that crop;
(4) Both the initial and subsequent planted crops meet all other
eligibility provisions of this part including good farming practices;
and
(5) The specific crops meet the eligibility criteria for a separate
crop designation as a repeat or approved multiple cropping practice set
out in Sec. 1479.114.
(g)(1) Disaster benefits under this part shall not apply to crops
where the prevented-planted acreage was affected by a disaster that was
caused by drought unless on the final planting date or the late
planting period for non-irrigated acreage, the area that was prevented
from being planted had insufficient soil moisture for germination of
seed and progress toward crop maturity because of a prolonged period of
dry weather;
(2) Verifiable information collected by sources whose business or
purpose to record weather conditions, including but not limited to the
local weather reporting stations of the U.S. National Weather Service.
(h) Prevented planting benefits under this part shall apply to
irrigated crops where the acreage was prevented from being planted due
to a lack of water resulting from drought conditions or contamination
by saltwater intrusion of an irrigation supply resulting from drought
conditions.
(i) For uninsured or non-insurable crops and the insured crops
listed in
[[Page 15734]]
paragraph (c) of this section, for prevented planting purposes:
(1) The maximum prevented-planted acreage for all crops cannot
exceed the number of acres of cropland in the unit for the crop year
and will be reduced by the number of acres planted in the unit;
(2) The maximum prevented planted acreage for a crop cannot exceed
the number of acres planted by the producer, or that was prevented from
being planted, to the crop in any 1 of the 4 crop years previous to the
disaster year as determined by the county committee;
(3) For crops grown under a contract specifying the number of acres
contracted, the prevented-planted acreage is limited to the result of
the number of acres specified in the contract minus planted acreage;
(4) For each crop type or variety for which separate prices or
yields are sought for prevented-planted acreage, the producer must
provide evidence that the claimed prevented-planted acres were
successfully planted in at least 1 of the most recent 4 crop years; and
(5) The prevented planted acreage must be at least 20 acres or 20
percent of the intended planted acreage in the unit, whichever is less.
(j) Notwithstanding the provisions of part 718 of this chapter,
late-filed crop acreage reports for previous years shall not be
accepted for CDP purposes.
Sec. 1479.116 Quantity adjustments for diminished quality for certain
crops.
(a) For the crops identified in paragraph (b) of this section,
subject to this part, the quantity of production of crops of the
producer shall be adjusted to reflect diminished quality resulting from
the disaster.
(b) Crops eligible for quality adjustments to production are
limited to:
(1) Barley; canola; corn; cotton; crambe, flaxseed; grain sorghum;
mustard seed; oats; peanuts; rapeseed; rice; safflower; soybeans; sugar
beets; sunflower-oil; sunflower-seed; tobacco; wheat; and
(2) Crops with multiple market uses such as fresh, processed or
juice, as supported by NASS data or other data as CCC determines
acceptable.
(c) The producer must submit verifiable documentation for
determining the grade and other discount factors that were applied to
the crop.
(d) Quality adjustments will be applied to crops experiencing at
least a 20 percent loss after production has been adjusted to standard
moisture, when applicable.
(e) For all crops listed in paragraph (b)(1) of this section,
except for cotton, if a quality adjustment has been made for multi-
peril crop insurance purposes, an additional adjustment will not be made.
(f) Quality adjustments for crops other than cotton, peanuts, sugar
beets, and tobacco listed in paragraph (b)(1) of this section may be
made by applying an adjustment factor based on dividing the CCC
marketing assistance loan rate applicable to the crop and producer
determined according to part 1421 of this chapter by the unadjusted
county marketing assistance loan rate for the crop. For crops that
receive a grade of ``sample'' and are marketed through normal channels,
production will be adjusted as determined by CCC. County committees
may, with state committee concurrence, establish county average quality
adjustment factors.
(g) Quality adjustments for cotton shall be based on the difference
between:
(1) The loan rate applicable to the crop and producer determined
according to part 1427 of this chapter; and
(2) The adjusted county loan rate. The adjusted county rate is the
county loan rate adjusted for the 5-year county average historical
quality premium or discount, as determined by CCC.
(h) For 2003, 2004, and 2005 peanuts, quality adjustments shall be
based on the difference between the actual sales price, or other
proceeds, received and the price announced by CCC under section 1421.10
of part 1421 of this chapter, by type of peanut for the applicable crop
year.
(i) Quality adjustments for crops with multiple market uses such as
fresh, processed and juice, shall be applied based on the difference
between the producer's historical marketing percentage of each market
use compared to the actual percentage for the 2003, 2004, or 2005 crop
year. These quality adjustments are built into the production loss
determination. Production determinations from Federal crop insurance
will not be used.
(j) Except as determined by the Deputy Administrator, quality
adjustments for aflatoxin shall be based on the aflatoxin level. The
producer must provide the county committee with proof of a price
reduction because of aflatoxin. The aflatoxin level must be 20 parts
per billion or more before a quality adjustment will be made. The
quality adjustment factor applied to affected production is .50 if the
production is marketable. If the production is unmarketable due to
aflatoxin levels of at least 20 parts per billion, affected production
will be adjusted to zero. Any value received will be considered salvage.
(k) Quality adjustments for sugar beets shall be based on sugar
content. The actual production for the producer shall be adjusted
upward or downward to account for sugar content as determined by CCC.
(l) Quality adjustments for tobacco in crops years 2003, 2004, or
2005 shall be based on the difference between the revenue received and
the support price except that the market price may be used instead of
the support price where there is no support price, or where market
prices normally exceed the support price.
(m) Any quantity of the crop determined to be salvage will not be
considered production. Salvage values shall be factored by 0.60 times
the producer's share. This amount will be deducted from the disaster
payment.
(n) Quantity adjustments for diminished quality under this section
will not be applied to crops that are, under Sec. 1479.117, value loss
crops.
(o) Quantity adjustments for diminished quality shall also not
apply under this section to: honey, maple sap, turf-grass sod, crops
marketed for a use other than an intended use for which there is not an
established county price or yield, or any other crop that the Deputy
Administrator deems it appropriate to exclude.
Sec. 1479.117 Value loss crops.
(a) Irrespective of any inconsistent provisions in other sections,
this section shall apply to the following crops, which are considered
``value loss crops'': ornamental nursery; Christmas trees; vegetable
and root stock including ginseng root; aquaculture, including
ornamental fish, and such other crops as may be determined appropriate
for treatment as ``value loss crops.''
(b) For crops specified in paragraph (a) of this section, disaster
benefits under this part are calculated based on the loss of value at
the time of disaster, as determined by CCC.
(c) For aquaculture, disaster benefits under this part for
aquacultural species are limited to those aquacultural species that
were placed in the aquacultural facility by the producer. CDP benefits
shall not be available for aquacultural species that are growing
naturally in the aquaculture facility. Benefits under this part are
limited to aquacultural species that were planted or seeded on property
owned or leased by the producer where that land has readily
identifiable boundaries, and over which the producer has total control
of the waterbed and the ground under the
[[Page 15735]]
waterbed. Producers who only have control of the waterbed or the ground
under the waterbed but not both will not be eligible for disaster
benefits under this part.
(d) For ornamental nursery crops, disaster benefits under this part
are limited to ornamental nursery crops that were grown in a container
or controlled environment for commercial sale on property owned or
leased by the producer, and cared for and managed using good nursery
growing practices. Indigenous crops are not eligible for benefits under
this part.
(e) For vegetable and root stock, disaster benefits under this part
are limited to plants grown in a container or controlled environment
for use as transplants or root stock by the producer for commercial
sale on property owned or leased by the producer and managed using good
rootstock or fruit and vegetable plant growing practices.
(f) For ginseng, only ginseng that meets all the requirements of
cultivated ginseng shall be considered as eligible for benefits under
this part. Ginseng is defined as cultivated ginseng roots and seeds
that meet the following requirements:
(1) Grown in raised beds above and away from wet and low areas, and
protected from flood;
(2) Grown under man-made canopies that provide 75 to 80 percent
shade coverage;
(3) Grown in well drained media with a pH adjustment of at least
5.5 and which protects plants from disease; and
(4) Grown with sufficient fertility and weed control to obtain
expected production results of ginseng root and seed.
(g) Evidence of the above ginseng practice requirements must be
provided by the producer if requested by the county committee. Any
ginseng that is grown under cultivated practices or simulated wild or
woodland conditions that do not meet these requirements is not eligible
for disaster assistance under this part.
(h) Because ginseng is a perennial crop, the producer must provide
annual crop history to establish when the loss occurred and the extent
of such loss. If the producer does not or is unable to provide annual
records to establish the beginning inventory, before the loss, and
ending inventory, after the loss, production shall be assigned by the
county committee.
(i) Aside from differences provided for in this section, all other
conditions for eligibility contained in this part shall be applied to
value loss crops.
Sec. 1479.118 Other provisions for specialty crops.
(a) For turf-grass sod, disaster benefits under this part are
limited to turf grass sod that would have matured and been harvested
during 2003, 2004, or 2005, when a disaster caused in excess of 35
percent of the expected production to die.
(b) For honey, disaster benefits under this part are limited to
table and non-table honey produced commercially for human consumption.
For calculating benefits, all honey is considered a single crop,
regardless of type or variety of floral source or intended use.
(c) For maple sap, disaster benefits under this part are limited to
maple sap produced on private property in a controlled environment by a
commercial operator for sale as sap or syrup. The maple sap must be
produced from trees that are: located on land the producer controls by
ownership or lease; managed for production of maple sap; and are at
least 30 years old and 12 inches in diameter.
Sec. 1479.119 2005-crop losses only.
(a) Producers may be eligible for assistance under this part for
2005 crop losses in counties declared Presidential disaster areas due
only to a hurricane or tropical storm that occurred during the 2004
hurricane season June 1 through November 30, 2004, as defined by the
National Oceanic and Atmospheric Administration.
(b) All provisions of this part including linkage, AGI,
conservation compliance, 95% payment cap and $80,000 payment limitation
are applicable to such 2005-crop claims.
(c) Persons that received assistance under section 32 of the Act of
August 25, 1935 for losses due to Hurricanes Charley, Frances and/or
Jeanne are not eligible for assistance under this provision.
Sec. 1479.120 Quality losses for 2003, 2004, and 2005 crops.
(a) Subject to other provisions of this part, CCC funds shall be
made available for assistance to producers determined eligible under
this section for crop quality losses greater than 20 percent of the
value the affected production of the crop would have had if the crop
had not suffered a quality loss. The per unit amount of a quality loss
for a producer's crop shall be equal to the difference between:
(1) The unit market value of the units of the crop affected by the
quality loss had the crop not suffered a quality loss; and
(2) The per-unit market value of the units of the crop affected by
the quality loss.
(b) The amount of payment for a quality loss shall be equal to 65
percent of the quantity of the crop affected by the quality loss,
multiplied by 65 percent of the per unit quality loss for the crop as
determined by the Deputy Administrator.
(c) This section will apply to all crops eligible for 2003, 2004,
and 2005 crop disaster assistance under this part, and will apply to
crop production that has a reduced economic value due to the reduction
in quality.
(d) Persons may not be compensated under this section to the extent
that such producers have received assistance under Sec. 1479.116
through Sec. 1479.118, or other provisions of this part, attributable
in whole or in part to diminished quality.
Sec. 1479.121 Virginia crop losses.
(a) In addition to CDP benefits for 2004, or 2005, producers with
crop losses located in the Commonwealth of Virginia may be eligible for
disaster assistance for crop losses that resulted from hurricanes,
tropical storms, and other weather related disasters that occurred
during the calendar year 2003 only.
(b) $50 million will be available for such disaster assistance
until expended.
(c) All provisions of this part limiting payments, including crop
insurance and NAP purchase requirements, adjusted gross income
provisions, conservation compliance, 95% payment cap related it
expected revenue, and the $80,000 per person per year payment
limitation are applicable to assistance received under this section.
Sec. 1479.122 North Carolina fruit and vegetable crop losses.
(a) In addition to CDP benefits for 2004 or 2005, but not both,
producers with fruit and vegetable losses located in the State of North
Carolina may be eligible for disaster assistance for these crop losses
that resulted from hurricanes, tropical storms, and other weather
related disasters that occurred during the 2003 calendar year only.
(b) $3 million will be available for such additional disaster
assistance until expended.
(c) All provisions of this part limiting payments, including crop
insurance and NAP purchase requirements, adjusted gross income
provisions, conservation compliance, 95% payment cap related to
expected revenue, and the $80,000 per person payment limitation, are
applicable to assistance received under this section.
[[Page 15736]]
Sec. 1479.123 Misrepresentation, and scheme or device.
(a) A producer who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part shall not be entitled to disaster payments and must refund all
such payments received, plus interest as determined in accordance with
part 1403 of this chapter.
(b) A producer shall refund to CCC all disaster payments, plus
interest as determined in accordance with part 1403 of this chapter,
received by such producer with respect to all applications under this
part if the producer is determined to have knowingly done any of the
following:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
Sec. 1479.124 Offsets, assignments, and debt settlement.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person shall be made without regard
to questions of title under State law and without regard to any claim
or lien against the crop, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings found at part 1403 of
this chapter apply to any payments made under this part.
(b) Any producer entitled to any payment may assign any payments in
accordance with regulations governing the assignment of payments found
at part 1404 of this chapter.
(c) A debt or claim may be settled according to part 1403 of this
chapter.
Sec. 1479.125 Compliance with highly erodible land and wetland
conservation provisions.
(a) The highly erodible land and wetland conservation provisions of
part 12 of this title apply to the receipt of disaster assistance for
2003, 2004, and 2005 crop losses made available under this authority.
(b) All eligible producers must be in compliance with the highly
erodible land and wetland conservation compliance provisions for the
year(s) for which disaster assistance is requested.
Signed in Washington, DC March 23, 2005.
Thomas B. Hofeller,
Acting Executive Vice-President, Commodity Credit Corporation.
[FR Doc. 05-6080 Filed 3-28-05; 8:45 am]
BILLING CODE 3410-05-P