[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2010 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 700 to 899
Revised as of January 1, 2010
Agriculture
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2010
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE B--Regulations of the Department of Agriculture
(Continued)
Chapter VII--Farm Service Agency, Department of
Agriculture 5
Chapter VIII--Grain Inspection, Packers and
Stockyard Administration (Federal Grain Inspection
Service), Department of Agriculture 377
Finding Aids:
Table of CFR Titles and Chapters........................ 537
Alphabetical List of Agencies Appearing in the CFR...... 557
List of CFR Sections Affected........................... 567
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 701.1 refers
to title 7, part 701,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2010), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, Washington DC 20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
fedreg.info@nara.gov.
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2250, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000. For GPO Customer Service call 202-512-1803.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Daily Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
format via Federalregister.gov. For more information, contact Electronic
Information Dissemination Services, U.S. Government Printing Office.
Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail,
gpoaccess@gpo.gov.
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2010.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2010.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 700 to 899)
--------------------------------------------------------------------
SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter vii--Farm Service Agency, Department of Agriculture. 701
chapter viii--Grain Inspection, Packers and Stockyard
Administration (Federal Grain Inspection Service),
Department of Agriculture................................. 800
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Editorial Note: 1. Nomenclature changes to chapter VII appear at 59 FR
60299, Nov. 23, 1994, as corrected at 59 FR 66438, Dec. 27, 1994, and at
60 FR 64297, Dec. 15, 1995.
SUBCHAPTER A--AGRICULTURAL CONSERVATION PROGRAM
Part Page
700
[Reserved]
701 Emergency Conservation Program and certain
related programs previously administered
under this part......................... 7
707 Payments due persons who have died,
disappeared, or have been declared
incompetent............................. 17
708 Record retention requirements--all programs. 19
SUBCHAPTER B--FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
714 Refunds of penalties erroneously, illegally,
or wrongfully collected................. 20
718 Provisions applicable to multiple programs.. 22
SUBCHAPTER C--REGULATIONS FOR WAREHOUSES
735 Regulations for the United States Warehouse
Act..................................... 45
743
[Reserved]
SUBCHAPTER D--SPECIAL PROGRAMS
750 Soil Bank................................... 59
760 Indemnity payment programs.................. 59
761 General program administration.............. 141
762 Guaranteed farm loans....................... 162
763
[Reserved]
764 Direct loan making.......................... 198
765 Direct loan servicing--regular.............. 218
766 Direct loan servicing--special.............. 232
767 Inventory property management............... 283
768--769
[Reserved]
770 Indian tribal land aquisition loans......... 289
771 Boll Weevil Eradication Loan Program........ 293
[[Page 6]]
772 Servicing minor program loans............... 296
773 Special Apple Loan Program.................. 301
774 Emergency Loan for Seed Producers Program... 306
780 Appeal regulations.......................... 308
781 Disclosure of foreign investment in
agricultural land....................... 316
782 End-Use Certificate Program................. 322
783 Tree Assistance Program..................... 327
784 2004 Ewe Lamb Replacement and Retention
Payment Program......................... 331
785 Certified State Mediation Program........... 335
786 Dairy Disaster Assistance Payment Program
(DDAP-III).............................. 342
SUBCHAPTER E--PROVISIONS COMMON TO MORE THAN ONE PROGRAM
792 Debt settlement policies and procedures..... 351
795 Payment limitation.......................... 360
SUBCHAPTER F--PUBLIC RECORDS
798 Availability of information to the public... 367
SUBCHAPTER G--ENVIRONMENTAL PROTECTION
799 Environmental quality and related
environmental concerns--compliance with
the National Environmental Policy Act... 369
[[Page 7]]
SUBCHAPTER A_AGRICULTURAL CONSERVATION PROGRAM
PART 700 [RESERVED]
PART 701_EMERGENCY CONSERVATION PROGRAM AND CERTAIN RELATED PROGRAMS
PREVIOUSLY ADMINISTERED UNDER THIS PART--Table of Contents
Sec.
701.1 Administration.
701.2 Definitions.
701.3 Scope.
701.4 Producer eligibility.
701.5 Land eligibility.
701.6-701.9 [Reserved]
701.10 Qualifying minimum cost of restoration.
701.11 Prohibition on duplicate payments.
701.12 Eligible ECP practices.
701.13 Submitting requests.
701.14 Onsite inspections.
701.15 Starting practices before cost-share request is submitted; non-
entitlement to payment; payment subject to the availability of
funds.
701.16 Practice approval.
701.17 Average adjusted gross income limitation.
701.18-701.20 [Reserved]
701.21 Filing payment application.
701.22 Eligibility to file for cost-share assistance.
701.23 Eligible costs.
701.24 Dividing cost-share among more than one participant.
701.25 Practices carried out with aid from ineligible persons.
701.26 Maximum cost-share percentage.
701.27 Maximum ECP payments per person.
701.28-701.30 [Reserved]
701.31 Maintenance and proper use of practices.
701.32 Failure to comply with program provisions.
701.33 Death, incompetency, or disappearance.
701.34 Appeals.
701.35 Compliance with regulatory measures.
701.36 Schemes and devices and claims avoidances.
701.37 Loss of control of property during the practice life span.
701.38-701.40 [Reserved]
701.41 Cost-share assistance not subject to claims.
701.42 Assignments.
701.43 Information collection requirements.
701.44 Agricultural Conservation Program (ACP) contracts.
701.45 Forestry Incentives Program (FIP) contracts.
701.50 2005 hurricanes.
701.51 Definitions.
701.52 Availability of funding.
701.53 Debris removal and water for livestock.
701.54 Oysters.
701.55 Nursery.
701.56 Poultry.
701.57 Private non-industrial forest land.
Authority: Pub. L. 95-334, 92 Stat. 420, 16 U.S.C. 2201-2205; Pub.
L. 109-148, Division B, sec. 101; and Pub. L. 110-28, secs. 9003-9004.
Source: 69 FR 10302, Mar. 4, 2004, unless otherwise noted.
Sec. 701.1 Administration.
(a) Subject to the availability of funds, this part provides the
terms, conditions and requirements of the Emergency Conservation Program
(ECP) administered by the Farm Service Agency (FSA).
(b) ECP is administered by the Administrator, FSA through the Deputy
Administrator, FSA, and shall be carried out in the field by State and
county FSA committees (State and county committees), subject to the
availability of funds. Except as otherwise provided in this rule,
discretionary determinations to be made under this rule will be made by
the Deputy Administrator. Matters committed to the discretion of the
Deputy Administrator shall be considered in all cases to be permissive
powers and no person shall, under any circumstances, be considered to be
entitled to an exercise of such power in their favor.
(c) State and county committees, and representatives and employees,
do not have authority to modify or waive any regulations in this part.
(d) The State committee may take any action authorized or required
of the county committee by this part, but which the county committee has
not taken, such as:
(1) Correct or require a county committee to correct any action
taken by such county committee that is not in accordance with this part;
or
[[Page 8]]
(2) Require a county committee to withhold taking any action that is
not in accordance with this part.
(e) No provision or delegation herein to a State or county committee
shall preclude the Administrator, FSA, or a designee, from determining
any question arising under the program or from reversing or modifying
any determination made by a State or county committee.
(f) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(g) The Deputy Administrator may limit the authority of state and
county committees to approve cost share in excess of specified amounts.
(h) Data furnished by the applicants will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, the failure to provide data could result in program benefits
being withheld or denied.
(i) FSA may consult with any other USDA agency for such assistance
as is determined by FSA to be necessary to implement the ECP. FSA is
responsible for the technical aspects of ECP but may enter into a
Memorandum of Agreement with another party to provide technical
assistance. If this limitation results in significant hardship to
producers in a county the State committee may request in writing that
the Deputy Administrator waive this requirement for that county.
(j) The provisions in this part shall not create an entitlement in
any person to any ECP cost share or claim or any particular notice or
form or procedure.
(k) Additional terms and conditions may be set forth in the
application or the forms participants will be required to sign for
participation in the ECP.
Sec. 701.2 Definitions.
(a) The terms defined in part 718 of this chapter shall be
applicable to this part and all documents issued in accordance with this
part, except as otherwise provided in this section.
(b) The following definitions shall apply to this part:
Agricultural producer means an owner, operator, or tenant of a farm
or ranch used to produce for food or fiber, crops (including but not
limited to, grain or row crops; seed crops; vegetables or fruits; hay
forage or pasture; orchards or vineyards; flowers or bulbs; or field
grown ornamentals) or livestock (including but not limited to, dairy or
beef cattle; poultry; swine; sheep or goats; fish or other animals
raised by aquaculture; other livestock or fowl) for commercial
production. Producers of animals raised for recreational uses only are
not considered agricultural producers.
Annual agricultural production means production of crops for food or
fiber in a commercial operation that occurs on an annual basis under
normal conditions.
Applicant means a person who has submitted to FSA a request to
participate in the ECP.
Cost-share payment means the payment made by FSA to assist a program
participant under this part to establish practices required to address
qualifying damage suffered in connection with a qualifying disaster.
Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA, the ECP Program Manager, or designee.
Farmland means land devoted to agricultural production, including
land used for aquaculture, or other land as may be determined by the
Deputy Administrator.
Program year means the applicable Federal fiscal year.
Sec. 701.3 Scope.
(a) FSA will provide cost-share assistance to farmers and ranchers
to rehabilitate farmland damaged by wind erosion, floods, hurricanes, or
other natural disasters as determined by the Deputy Administrator, and
to carry out emergency water conservation measures during periods of
severe drought.
(b) The objective of the ECP is to make cost-share assistance
available to eligible participants on eligible land for certain
practices, to rehabilitate farmland damaged by floods, hurricanes, wind
erosion, or other natural disasters, and for the installation of
[[Page 9]]
water conservation measures during periods of severe drought.
(c) Payments may also be made under this part for:
(1) Emergency water conservation or water enhancement measures
(including measures to assist confined livestock) during periods of
severe drought; and
(2) Floodplain easements for runoff and other emergency measures
that the Deputy Administrator determines is necessary to safeguard life
and property from floods, drought, and the products of erosion on any
watershed whenever fire, flood, or other natural occurrence is causing
or has caused, a sudden impairment of the watershed.
(d) Payments under this part are subject to the availability of
appropriated funds and any limitations that may otherwise be provided
for by Congress.
Sec. 701.4 Producer eligibility.
(a) To be eligible to participate in the ECP the Deputy
Administrator must determine that a person is an agricultural producer
with an interest in the land affected by the natural disaster, and that
person must be liable for or have paid the expense that is the subject
of the cost share. The applicant must be a landowner or user in the area
where the qualifying event has occurred, and must be a party who will
incur the expense that is the subject of the cost share.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible to participate in the
ECP.
(c) All producer eligibility is subject to the availability of funds
and an application may be denied for any reason.
Sec. 701.5 Land eligibility.
(a) For land to be eligible, the Deputy Administrator must determine
that land that is the subject of the cost share:
(1) Will have new conservation problems caused as a result of a
natural disaster that, if not treated, would:
(i) Impair or endanger the land;
(ii) Materially affect the productive capacity of the land;
(iii) Represent unusual damage that, except for wind erosion, is not
of the type likely to recur frequently in the same area; and
(iv) Be so costly to repair that Federal assistance is or will be
required to return the land to productive agricultural use. Conservation
problems existing prior to the disaster are not eligible for cost-share
assistance.
(2) Be physically located in a county in which the ECP has been
implemented; and
(3) Be one of the following:
(i) Land expected to have annual agricultural production,
(ii) A field windbreak or a farmstead shelterbelt on which the ECP
practice to be implemented involves removing debris that interferes with
normal farming operations on the farm and correcting damage caused by
the disaster; or
(iii) A farm access road on which debris interfering with the normal
farming operation needs to be removed.
(b) Land is ineligible for cost share if the Deputy Administrator
determines that it is, as applicable:
(1) Owned or controlled by the United States;
(2) Owned or controlled by States, including State agencies or other
political subdivisions of a State;
(3) Protected by a levee or dike that was not effectively and
properly functioning prior to the disaster, or is protected, or intended
to be protected, by a levee or dike not built to U.S. Army Corps of
Engineers, NRCS, or comparable standards;
(4) Adjacent to water impoundment reservoirs that are subject to
inundation when the reservoir is filled to capacity;
(5) Land on which levees or dikes are located;
(6) Subject to frequent damage or susceptible to severe damage
according to paragraph (c) of this section;
(7) Subject to flowage or flood easements and inundation when water
is released in normal operations;
(8) Between any levee or dike and a stream, river, or body of water,
including land between two or more levees or dikes;
[[Page 10]]
(9) Located in an old or new channel of a stream, creek, river or
other similar body of water, except that land located within or on the
banks of an irrigation canal may be eligible if the Deputy Administrator
determines that the canal is not a channel subject to flooding;
(10) In greenhouses or other confined areas, including but not
limited to, land in corrals, milking parlors, barn lots, or feeding
areas;
(11) Land on which poor farming practices, such as failure to farm
on the contour, have materially contributed to damaging the land;
(12) Unless otherwise provided for, not considered to be in annual
agricultural production, such as land devoted to stream banks, channels,
levees, dikes, native woodland areas, roads, and recreational uses; or
(13) Devoted to trees including, but not limited to, timber
production.
(c) To determine the likely frequency of damage and of the
susceptibility of the land to severe damage under paragraph (b)(6) of
this section, FSA will consider all relevant factors, including, but not
limited to, the location of the land, the history of damage to the land,
and whether the land was or could have been protected by a functioning
levee or dike built to U. S. Army Corps of Engineers, NRCS, or
comparable standards. Further, in making such determinations,
information may be obtained and used from the Federal Emergency
Management Agency or any other Federal, State (including State agencies
or political subdivisions), or other entity or individual providing
information regarding, for example, flood susceptibility for the land,
soil surveys, aerial photographs, or flood plain data or other relevant
information.
Sec. Sec. 701.6-701.9 [Reserved]
Sec. 701.10 Qualifying minimum cost of restoration.
(a) To qualify for assistance under Sec. 701.3(a), the eligible
damage must be so costly that Federal assistance is or will be required
to return the land to productive agricultural use or to provide
emergency water for livestock.
(b) The Deputy Administrator shall establish the minimum qualifying
cost of restoration. Each affected State may be allowed to establish a
higher minimum qualifying cost of restoration.
(c) A producer may request a waiver of the qualifying minimum cost
of restoration. The waiver request shall document how failure to grant
the waiver will result in environmental damage or hardship to the
producer and how the waiver will accomplish the goals of the program.
[69 FR 10302, Mar. 4, 2004; 69 FR 22377, Apr. 26, 2004]
Sec. 701.11 Prohibition on duplicate payments.
(a) Duplicate payments. Participants are not eligible to receive
funding under the ECP for land on which the participant has or will
receive funding under:
(1) The Wetland Reserve Program (WRP) provided for in 7 CFR part
1467;
(2) The Emergency Wetland Reserve Program (EWRP) provided for in 7
CFR part 623;
(3) The Emergency Watershed Protection Program (EWP), provided for
in 7 CFR part 624, for the same or similar expenses.
(4) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, in effect, a higher rate of cost share
than is allowed under this part.
(b) Refund. Participants who receive any duplicate funds, payments,
or benefits shall refund any ECP payments received.
[69 FR 10302, Mar. 4, 2004, as amended at 71 FR 30265, May 26, 2006]
Sec. 701.12 Eligible ECP practices.
(a) Cost-share assistance may be offered for ECP practices to
replace or restore farmland, fences, or conservation structures to a
condition similar to that existing before the natural disaster. No
relief under this part shall be allowed to address conservation problems
existing before the disaster.
(b) The practice or practices made available when the ECP is
implemented shall be only those practices authorized by FSA for which
cost-share
[[Page 11]]
assistance is essential to permit accomplishment of the program goals.
(c) Cost-share assistance may be provided for permanent vegetative
cover, including establishment of the cover where needed, only in
conjunction with eligible structures or installations where cover is
needed to prevent erosion and/or siltation or to accomplish some other
ECP purpose.
(d) Practice specifications shall represent the minimum levels of
performance needed to address the ECP need.
Sec. 701.13 Submitting requests.
(a) Subject to the availability of funds, the Deputy Administrator
shall provide for an enrollment period for submitting ECP cost-share
requests.
(b) Requests may be accepted after the announced enrollment period,
if such acceptance is approved by the Deputy Administrator and is in
accordance with the purposes of the program.
Sec. 701.14 Onsite inspections.
An onsite inspection must be made before approval of any request for
ECP assistance.
Sec. 701.15 Starting practices before cost-share request is
submitted; non-entitlement to payment; payment subject to the
availability of funds.
(a) Subject to paragraphs (b) and (c) of this section, costs will
not be shared for practices or components of practices that are started
before a request for cost share under this part is submitted with the
applicable county FSA office.
(b) Costs may be shared for drought and non-drought ECP practices or
components of practices that are started before a request is submitted
with the county FSA office, only if:
(1) Considered and approved on a case-by-case basis in accordance
with instructions of the Deputy Administrator;
(2) The disaster that is the basis of a claim for cost-share
assistance created a situation that required the producer to take
immediate action to prevent further losses;
(3) The Deputy Administrator determines that the request for
assistance was filed within a reasonable amount of time after the start
of the enrollment period; and
(4) The practice was started no more than 60 days before the ECP
designation was approved for the applicable county office.
(c) Any action taken prior to approval of a claim is taken at the
producer's own risk.
(d) An application for relief may be denied for any reason.
(e) All payments under this part are subject to the availability of
funds.
Sec. 701.16 Practice approval.
(a) Requests shall be prioritized before approval based on factors
deemed appropriate by FSA, which include, but are not limited to:
(1) Type and degree of damage;
(2) Type of practices needed to address the problem;
(3) Availability of funds;
(4) Availability of technical assistance;
(5) Environmental concerns;
(6) Safety factors; or
(7) Welfare of eligible livestock.
(b) Requests for cost-share assistance may be approved if:
(1) Funds are available; and
(2) The requested practice is determined eligible.
Sec. 701.17 Average adjusted gross income limitation.
To be eligible for payments issued from the $16 million provided
under the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and
Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28, section
9003), each applicant must meet the provisions of the Adjusted Gross
Income Limitations at 7 CFR part 1400 subpart G.
[72 FR 45880, Aug. 16, 2007]
Sec. Sec. 701.18-701-20 [Reserved]
Sec. 701.21 Filing payment application.
Cost-share assistance is conditioned upon the availability of funds
and the performance of the practice in compliance with all applicable
specifications and program regulations.
(a) Completion of practice. After completion of the approved
practice, the participant must certify completion and request payment by
the payment
[[Page 12]]
request deadline. FSA will provide the participant with a form or
another manner to be used to request payment.
(b) Proof of completion. Participants shall submit to FSA, at the
local county office, the information needed to establish the extent of
the performance of approved practices and compliance with applicable
program provisions.
(c) Payment request deadline. The time limits for submission of
information shall be determined by the Deputy Administrator. The payment
request deadline for each ECP practice will be provided in the agreement
after the application is approved. Time limits may be extended where
failure to submit required information within the applicable time limits
is due to reasons beyond the control of the participant.
Sec. 701.22 Eligibility to file for cost-share assistance.
Any eligible participant, as defined in this part, who paid part of
the cost of an approved practice may file an application for cost-share
payment.
Sec. 701.23 Eligible costs.
(a) Cost-share assistance may be authorized for all reasonable costs
incurred in the completion of the practice, up to the maximums provided
in Sec. Sec. 701.26 and 701.27.
(b) Eligible costs shall be limited as follows:
(1) Costs for use of personal equipment shall be limited to those
incurred beyond the normal operation of the farm or ranch.
(2) Costs for personal labor shall be limited to personal labor not
normally required in the operation of the farm or ranch.
(3) Costs for the use of personal equipment and labor must be less
than that charged for such equipment and labor by commercial contractors
regularly employed in such areas.
(4) Costs shall not exceed those needed to achieve the minimum
performance necessary to resolve the problem being corrected by the
practice. Any costs above those levels shall not be considered to be
eligible costs for purposes of calculations made under this part.
(c) Costs shall not exceed the practice specifications in Sec.
701.12(d) for cost-share calculations.
(d) The gross amount on which the cost-share eligibility may be
computed will not include any costs that were reimbursed by a third
party including, but not limited to, an insurance indemnity payment.
(e) Total cost-share payments from all sources shall not exceed the
total of eligible costs of the practice to the applicant.
Sec. 701.24 Dividing cost-share among more than one participant.
(a) For qualifying cost-share assistance under this part, the cost
shall be credited to the participant who personally performed the
practice or who paid to have it performed by a third party. If a payment
or credit was made by one participant to another potential participant,
paragraph (c) of this section shall apply.
(b) If more than one participant contributed to the performance of
the practice, the cost-share assistance for the practice shall be
divided among those eligible participants in the proportion they
contributed to the performance of the practice. FSA may determine what
proportion was contributed by each participant by considering the value
of the labor, equipment, or material contributed by each participant and
any other factors deemed relevant toward performance.
(c) Allowance by a participant of a credit to another participant
through adjustment in rent, cash or other consideration, may be
considered as a cost of a practice to the paying party only if FSA
determines that such credit is directly related to the practice. An
applicant who was fully reimbursed shall be considered as not having
contributed to the practice performance.
Sec. 701.25 Practices carried out with aid from ineligible persons.
Any assistance provided by someone other than the eligible
participant, including assistance from a State or Federal agency, shall
be deducted from the participant's total costs incurred for
[[Page 13]]
the practice for the purpose of computing ECP cost shares. If unusual
conditions exist, the Deputy Administrator may waive deduction of such
contributions upon a request from the State committee and demonstration
of the need for such a waiver.
Sec. 701.26 Maximum cost-share percentage.
(a) In addition to other restrictions that may be applied by FSA, an
ECP participant shall not receive more than 75 percent of the lesser of
the participant's total actual cost or of the total allowable costs, as
determined by this part, to perform the practice.
(b) However, notwithstanding paragraph (a) of this section, a
qualified limited resource producer that participates in the ECP may
receive no more than 90 percent of the participant's actual cost to
perform the practice or 90 percent of the total allowable costs for the
practice as determined under this part.
(c) In addition to other limitations that apply, in no case shall
the ECP payment exceed 50 percent of what the Deputy Administrator has
determined is the agricultural value of the affected land.
Sec. 701.27 Maximum ECP payments per person.
A person, as defined in part 1400 of this title, is limited to a
maximum cost-share of $200,000 per person, per disaster.
Sec. Sec. 701.28-701.30 [Reserved]
Sec. 701.31 Maintenance and proper use of practices.
(a) Each participant receiving cost-share assistance is responsible
for the required maintenance and proper use of the practice. Some
practices have an established life span or minimum period of time during
which they are expected to function as a conservation practice with
proper maintenance. Cost-share assistance shall not be authorized for
normal upkeep or maintenance of any practice.
(b) If a practice is not properly maintained for the established
life span, the participant may be required to refund all or part of
cost-share assistance received. The Deputy Administrator will determine
what constitutes failure to maintain a practice and the amount that must
be refunded.
Sec. 701.32 Failure to comply with program provisions.
Costs may be shared for performance actually rendered even though
the minimum requirements otherwise established for a practice have not
been satisfied if a reasonable effort was made to satisfy the minimum
requirements and if the practice, as performed, will adequately address
the need for the practice.
Sec. 701.33 Death, incompetency, or disappearance.
In case of death, incompetency, or disappearance of any participant,
any cost-share payment due shall be paid to the successor, as determined
in accordance with part 707 of this chapter.
Sec. 701.34 Appeals.
Part 11 of this title and part 780 of this chapter apply to
determinations made under this part.
Sec. 701.35 Compliance with regulatory measures.
Participants who perform practices shall be responsible for
obtaining the authorities, permits, rights, easements, or other
approvals necessary to the performance and maintenance of the practices
according to applicable laws and regulations. The ECP participant shall
be wholly responsible for any actions taken with respect to the project
and shall, in addition, be responsible for returning and refunding any
ECP cost shares made, where the purpose of the project cannot be
accomplished because of the applicants' lack of clearances or other
problems.
Sec. 701.36 Schemes and devices and claims avoidances.
(a) If FSA determines that a participant has taken any action
designed to defeat, or has the effect of defeating, the purposes of this
program, the participant shall be required to refund all or part of any
of the program payments otherwise due or paid that participant or
related person for that particular disaster. These actions include, but
are
[[Page 14]]
not limited to, failure to properly maintain or deliberately destroying
a practice and providing false or misleading information related to
practices, costs, or arrangements between entities or individuals that
would have an effect on ``person'' determinations made under this part.
(b) All or any part of cost-share assistance that otherwise would be
due any participant may be withheld, or required to be refunded, if the
participant has adopted, or participated in, any scheme or device
designed to evade the maximum cost-share limitation that applies to the
ECP or to evade any other requirement or provision of the program or
this part.
(c) If FSA determines that a participant has employed any scheme or
device to deprive any other person of cost-share assistance, or engaged
in any actions to receive payments under this part that also were
designed to avoid claims of the United States or its instrumentalities
or agents against that party, related parties, or third parties, the
participant shall refund all or part of any of those program payments
paid to that participant for the project.
(d) For purposes of this section, a scheme or device can include,
but is not limited to, instances of coercion, fraud, or
misrepresentation regarding the claim for ECP assistance and the facts
and circumstances surrounding such claim.
(e) A participant who has knowingly supplied false information or
filed a false claim shall be ineligible for cost-share assistance
related to the disaster for which the false information was filed, or
for any period of time FSA deems appropriate. False information or a
false claim includes, but is not limited to, a request for payment for a
practice not carried out, a false billing, or a billing for practices
that do not meet required specifications.
Sec. 701.37 Loss of control of the property during the practice life span.
In the event of voluntary or involuntary loss of control of the land
by the ECP cost-share recipient during the practice life-span, if the
person acquiring control elects not to become a successor to the ECP
agreement and the practice is not maintained, each participant who
received cost-share assistance for the practice may be jointly and
severally liable for refunding any ECP cost-share assistance related to
that practice. The practice life span, for purposes of this section,
includes any maintenance period that is essential to its success.
Sec. Sec. 701.38-701.40 [Reserved]
Sec. 701.41 Cost-share assistance not subject to claims.
Any cost-share assistance or portion thereof due any participant
under this part shall be allowed without regard to questions of title
under State law, and without regard to any claim or lien against any
crop or property, or proceeds thereof, except liens and other claims of
the United States or its instrumentalities. The regulations governing
offsets and withholdings at parts 792 and 1403 of this title shall be
applicable to this program and the provisions most favorable to a
collection of the debt shall control.
Sec. 701.42 Assignments.
Participants may assign ECP cost-share assistance payments, in whole
or in part, according to part 1404 of this title.
Sec. 701.43 Information collection requirements.
Information collection requirements contained in this part have been
approved by the Office of Management and Budget under the provisions at
44 U.S.C. Chapter 35 and have been assigned OMB Number 0560-0082.
Sec. 701.44 Agricultural Conservation Program (ACP) contracts.
Contracts for ACP that are, or were, administered under this part or
similar contracts executed in connection with the Interim Environmental
Quality Incentives Program, shall, unless the Deputy Administrator
determines otherwise, be administered under, and be subject to, the
regulations for ACP contracts and the ACP program that were contained in
the 7 CFR, parts 700 to 899, edition revised as of January 1,
[[Page 15]]
1998, and under the terms of the agreements that were entered into with
participants.
Sec. 701.45 Forestry Incentives Program (FIP) contracts.
The regulations governing the FIP as of July 31, 2002, and contained
in the 7 CFR, parts 700 to 899, edition revised as of January 1, 2002,
shall continue to apply to FIP contracts in effect as of that date,
except as provided in accord with a delegation of the administration of
that program and such delegation and actions taken thereunder shall
apply to any other FIP matters as may be at issue or in dispute.
Sec. 701.50 2005 hurricanes.
In addition benefits elsewhere allowed by this part, claims related
to calendar year 2005 hurricane losses may be allowed to the extent
provided for in Sec. Sec. 701.50 through 701.57. Such claims under
those sections will be limited to losses in counties that were declared
disaster counties by the President or the Secretary because of 2005
hurricanes and to losses to oyster reefs. Claims under Sec. Sec. 701.51
through 701.57 shall be subject to all normal ECP limitations and
provisions except as explicitly provided in those sections.
[71 FR 30265, May 26, 2006]
Sec. 701.51 Definitions.
The following definitions apply to Sec. Sec. 701.52 through 701.57:
Above-ground irrigation facilities means irrigation pipes,
sprinklers, pumps, emitters, and any other integral part of the above
ground irrigation system.
Barn means a structure used for the housing of animals or farm
equipment.
Commercial forest land means forest land with trees intended to be
harvested for commercial purposes that has a productivity potential
greater than or equal to 20 cubic feet per year of merchantable timber.
Date of loss means the date the hurricane damage occurred in
calendar year 2005.
Eligible county means any county that was declared a disaster county
by the President or the Secretary because of a calendar year 2005
hurricane, that otherwise meets the eligibility requirements of this
part.
Forest management plan means a plan of action and direction on
forest lands to achieve a set of results usually specified as goals or
objectives consistent with program policies prepared or approved by a
natural resource professional, such as a State forestry agency
representative.
Poultry house means a building used to house live poultry for the
purpose of commercial food production.
Private non-industrial forest land means rural commercial forest
lands with existing tree cover, or which are suitable for growing trees,
that are owned by a private non-industrial forest landowner as defined
in this section.
Private non-industrial forest landowner means, for purposes of the
ECP for forestry, an individual, group, association, corporation, Indian
tribe, or other legal private entity owning non-industrial private
forest land or who receives concurrence from the landowner for making
the claim in lieu of the owner, and for practice implementation and who
holds a lease on the land for a minimum of 10 years. Owners or lessees
principally engaged in the primary processing of raw wood products are
excluded from this definition. Owners of land leased to lessees who
would be excluded under the previous sentence are also excluded.
Shade house means a metal or wood structure covered by a material
used for shade purposes.
[71 FR 30265, May 26, 2006]
Sec. 701.52 Availability of funding.
Payments under Sec. Sec. 701.53 through 701.57 are subject to the
availability of funds under Public Law 109-149.
[71 FR 30265, May 26, 2006]
Sec. 701.53 Debris removal and water for livestock.
Subject to the other eligibility provisions of this part, an ECP
participant addressing damage in an eligible county from hurricanes
during calendar year 2005 may be allowed up to 90 percent of the
participant's actual cost or of the total allowable cost for cleaning up
structures such as barns, shade
[[Page 16]]
houses and above-ground irrigation facilities, for removing poultry
house debris, including carcasses, and for providing water for
livestock.
[71 FR 30265, May 26, 2006]
Sec. 701.54 Oysters.
(a) Notwithstanding Sec. 701.5(b), but otherwise subject to the
other eligibility provisions of this part except as provided explicitly
in this section, assistance may be made available under this section for
the eligible cost of refurbishing public or private oyster reefs damaged
in calendar year 2005 by a 2005 hurricane. Oyster bed refurbishing
consists of removing mud from public and private oyster beds, staking
out the leased areas, reestablishing the oyster beds using crushed
limestone, recycled oyster shells, or other available and suitable
approved cultch materials, reseeding the oyster beds, and related
actions approved by FSA.
(b) Notwithstanding Sec. 701.26, an ECP participant shall not
receive more than 90 percent of the participant's actual cost or of the
total allowable cost described in paragraph (a) of this section.
(c) The provisions of Sec. 701.26(c) limiting ECP payments to 50
percent of the agricultural value of the land do not apply to oyster bed
rehabilitation and refurbishing.
[71 FR 30265, May 26, 2006]
Sec. 701.55 Nursery.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be made available
in an eligible county under this section for the cost of removing
nursery debris such as nursery structures, shade houses, and above
ground irrigation facilities, where such debris was created in calendar
year 2005 by a 2005 hurricane.
(b) Notwithstanding Sec. 701.26, an otherwise eligible ECP
participant may be allowed up to 90 percent of the participant's actual
cost or of the total allowable cost for losses described in paragraph
(a) of this section.
[71 FR 30265, May 26, 2006]
Sec. 701.56 Poultry.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be allowed under
this section for uninsured losses in calendar year 2005 to a poultry
house in an eligible county due to a 2005 hurricane.
(b) Claimants under this section may be allowed an amount up to the
lesser of:
(1) The lesser of 50 percent of the participant's actual or the
total allowable cost of the reconstruction or repair of a poultry house,
or
(2) $50,000 per poultry house.
(c) The total amount of assistance provided under this section and
any indemnities for losses to a poultry house paid to a poultry grower,
may not exceed 90 percent of the total costs associated with the
reconstruction or repair of a poultry house.
(d) Poultry growers must provide information on insurance payments
on their poultry houses. Copies of contracts between growers and poultry
integrators may be required.
(e) Assistance under this section is limited to amounts necessary
for reconstruction and/or repair of a poultry house to the same size as
before the hurricane.
(f) Assistance is limited to poultry houses used to house poultry
for commercial enterprises. A commercial poultry enterprise is one with
a dedicated structure for poultry and a number of poultry that exceeds
actual non-commercial uses of poultry and their products at all times,
and from which poultry or related products are actually, and routinely,
sold in commercial quantities for food, fiber, or eggs. Unless otherwise
approved by FSA, a commercial quantity is a quantity per week that would
normally exceed $100 in sales.
(g) Poultry houses with respect to which claims are made under this
section must be reconstructed or repaired to meet current building
standards.
[71 FR 30265, May 26, 2006]
Sec. 701.57 Private non-industrial forest land.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance made available under
this section with respect to private, non-industrial forest land in an
eligible county for
[[Page 17]]
costs related to reforestations, rehabilitation, and related measures
undertaken because of losses in calendar year 2005 caused by a 2005
hurricane. To be eligible, a non-industrial private forest landowner
must have suffered a loss of, or damage to, at least 35 percent of
forest acres on commercial forest land of the forest landowner in a
designated disaster county due to a 2005 hurricane or related condition.
The 35 percent loss shall be determined based on the value of the land
before and after the hurricane event.
(b) During the 5-year period beginning on the date of the loss, the
eligible private non-industrial forest landowner must:
(1) Reforest the eligible damaged forest acres in accordance with a
forest management plan approved by FSA that is appropriate for the
forest type where the forest management plan is developed by a person
with appropriate forestry credentials, as determined by the Deputy
Administrator;
(2) Use the best management practices included in the forest
management plan; and
(3) Exercise good stewardship on the forest land of the landowner
while maintaining the land in a forested state.
(c) Notwithstanding Sec. 701.26, an ECP participant shall not
receive under this section more than 75 percent of the participant's
actual cost or of the total allowable cost of reforestation,
rehabilitation, and related measures.
(d) Payments under this section shall not exceed a maximum of $150
per acre for any acre.
(e) Requests will be prioritized based upon planting tree species
best suited to the site as stated in the forest management plan.
[71 FR 30265, May 26, 2006]
PART 707_PAYMENTS DUE PERSONS WHO HAVE DIED, DISAPPEARED, OR HAVE
BEEN DECLARED INCOMPETENT--Table of Contents
Sec.
707.1 Applicability.
707.2 Definitions.
707.3 Death.
707.4 Disappearance.
707.5 Incompetency.
707.6 Death, disappearance, or incompetency of one eligible to apply for
payment pursuant to the regulations in this part.
707.7 Form of application.
Authority: 54 Stat. 728, as amended, sec. 121, 70 Stat. 197, sec.
375, 52 Stat. 66, as amended, sec. 124(i), 75 Stat. 300, sec. 307(h), 76
Stat. 617, sec. 318, 76 Stat. 622, sec. 324(2), 76 Stat. 630, sec. 704,
68 Stat. 911, secs. 4, 8(b), 49 Stat. 164, 1149, as amended, sec.
101(4), 76 Stat. 606, sec. 3, 77 Stat. 45, sec. 4, 62 Stat. 1070; 5
U.S.C. 301, 7 U.S.C. 1334 note, 1339, 1375, 1379j, 1385, 1783, 1809; 16
U.S.C. 590d, 590h(b), 590(e), 590p(h), 15 U.S.C. 714b(d)(j)(k).
Source: 30 FR 6246, May 5, 1965, unless otherwise noted.
Sec. 707.1 Applicability.
This part applies to all programs in title 7 of the Code of Federal
Regulations which are administered by the Farm Service Agency under
which payments are made to eligible program participants. This part also
applies to all other programs to which this part is applicable by the
individual program regulations.
Sec. 707.2 Definitions.
``Person'' when relating to one who dies, disappears, or becomes
incompetent, prior to receiving payment, means a person who has earned a
payment in whole or in part pursuant to any of the programs to which
this part is applicable. ``Children'' shall include legally adopted
children who shall be entitled to share in any payment in the same
manner and to the same extent as legitimate children of natural parents.
``Brother'' or ``sister'', when relating to one who, pursuant to the
regulations in this part, is eligible to apply for the payment which is
due a person who dies, disappears, or becomes incompetent prior to the
receipt of such payment, shall include brothers and sisters of the half
blood who shall be considered the same as brothers and sisters of the
whole blood. ``Payment'' means a payment by draft, check or certificate
pursuant to any of the Programs to which this part is applicable.
Payments shall not be considered received for the purposes of this part
until such draft, check or certificate has been negotiated or used.
[[Page 18]]
Sec. 707.3 Death.
(a) Where any person who is otherwise eligible to receive a payment
dies before the payment is received, payment may be made upon proper
application therefor, without regard to claims of creditors other than
the United States, in accordance with the following order of precedence:
(1) To the administrator or executor of the deceased person's
estate.
(2) To the surviving spouse, if there is no administrator or
executor and none is expected to be appointed, or if an administrator or
executor was appointed but the administration of the estate is closed
(i) prior to application by the administrator or executor for such
payment or (ii) prior to the time when a check, draft, or certificate
issued for such payment to the administrator or executor is negotiated
or used.
(3) If there is no surviving spouse, to the sons and daughters in
equal shares. Children of a deceased son or daughter of a deceased
person shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of a
deceased son or daughter of such deceased person, the share of the
payment which otherwise would have been made to such son or daughter
shall be divided equally among the surviving sons and daughters of such
deceased person and the estates of any deceased sons or daughters where
there are surviving direct descendants.
(4) If there is no surviving spouse and no direct descendant,
payment shall be made to the father and mother of the deceased person in
equal shares, or the whole thereof to the surviving father or mother.
(5) If there is no surviving spouse, no direct descendant, and no
surviving parent, payment shall be made to the brothers and sisters of
the deceased person in equal shares. Children of a deceased brother or
sister shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of the
deceased brother or sister of such deceased person, the share of the
payment which otherwise would have been made to such brother or sister
shall be divided equally among the surviving brothers and sisters of
such deceased person and the estates of any deceased brothers or sisters
where there are surviving direct descendants.
(6) If there is no surviving spouse, direct descendant, parent, or
brothers or sisters or their descendants, the payment shall be made to
the heirs-at-law in accordance with the law of the State of domicile of
the deceased person.
(b) If any person who is entitled to payment under the above order
of precedence is a minor, payment of his share shall be made to his
legal guardian, but if no legal guardian has been appointed payment
shall be made to his natural guardian or custodian for his benefit,
unless the minor's share of the payment exceeds $1,000, in which event
payment shall be made only to his legal guardian.
(c) Any payment which the deceased person could have received may be
made jointly to the persons found to be entitled to such payment or
shares thereof under this section or, pursuant to instructions issued by
the Farm Service Agency, a separate payment may be issued to each person
entitled to share in such payment.
Sec. 707.4 Disappearance.
(a) In case any person otherwise eligible to receive payment
disappears before receiving the payment, such payment may be made upon
proper application therefor, without regard to claims of creditors other
than the United States, to one of the following in the order mentioned:
(1) The conservator or liquidator of his estate, if one be duly
appointed.
(2) The spouse.
(3) An adult son or daughter or grandchild for the benefit of his
estate.
(4) The mother or father for the benefit of his estate.
(5) An adult brother or sister for the benefit of his estate.
(6) Such person as may be authorized under State law to receive
payment for the benefit of his estate.
(b) A person shall be deemed to have disappeared if (1) he has been
missing for a period of more than 3 months, (2) a diligent search has
failed to reveal his whereabouts, and (3) such person has not
communicated during such period with other persons who would be
[[Page 19]]
expected to have heard from him. Evidence of such disappearance must be
presented to the county committee in the form of a statement executed by
the person making the application for payment, setting forth the above
facts, and must be substantiated by a statement from a disinterested
person who was well acquainted with the person who has disappeared.
Sec. 707.5 Incompetency.
(a) Where any person who is otherwise eligible to receive a payment
is adjudged incompetent by a court of competent jurisdiction before the
payment is received, payment may be made, upon proper application
therefor, without regard to claims of creditors other than the United
States, to the guardian or committee legally appointed for such
incompetent person. In case no guardian or committee has been appointed,
payment, if not more than $1,000, may be made without regard to claims
of creditors other than the United States, to one of the following in
the order mentioned for the benefit of the incompetent person:
(1) The spouse.
(2) An adult son, daughter, or grandchild.
(3) The mother or father.
(4) An adult brother or sister.
(5) Such person as may be authorized under State law to receive
payment for him (see standard procedure prescribed for the respective
region).
(b) In case payment is more than $1,000, payment may be made only to
such person as may be authorized under State law to receive payment for
the incompetent.
Sec. 707.6 Death, disappearance, or incompetency of one eligible to
apply for payment pursuant to the regulations in this part.
In case any person entitled to apply for a payment pursuant to the
provisions of Sec. 707.3, Sec. 707.4, Sec. 707.5, or this section,
dies, disappears, or is adjudged incompetent, as the case may be, after
he has applied for such payment but before the payment is received,
payment may be made upon proper application therefor, without regard to
claims of creditors other than the United States, to the person next
entitled thereto in accordance with the order of precedence set forth in
Sec. 707.3, Sec. 707.4, or Sec. 707.5, as the case may be.
Sec. 707.7 Form of application.
Persons desiring to claim payment in accordance with this part 707
may do so on Form FSA-325, ``Application for Payment of Amounts Due
Persons Who Have Died, Disappeared, or Have Been Declared Incompetent''.
If the person who died, disappeared, or was declared incompetent did not
apply for payment by filing the applicable program application for
payment form, such program application for payment must also be filed in
accordance with applicable regulations. If the payment is made under the
Naval Stores Conservation Program, Part II of the Form FSA-325 shall be
executed by the local District Supervisor of the U.S. Forest Service. In
connection with applications for payment under all other programs
itemized in Sec. 707.1, Form FSA-325, and program applications for
payments where required, shall be filed with the FSA county office where
the person who earned the payment would have been required to file his
application.
PART 708_RECORD RETENTION REQUIREMENTS_ALL PROGRAMS--Table of Contents
Authority: Sec. 4, 49 Stat. 164, secs. 7-17, 49 Stat. 1148, as
amended; 16 U.S.C. 590d, 590g-590q.
Sec. 708.1 Record retention period.
For the purposes of the programs in this chapter, no receipt,
invoice, or other record required to be retained by any agricultural
producer as evidence tending to show performance of a practice under any
such program needs to be retained by such producer more than two years
following the close of the program year of the program.
[25 FR 105, Jan. 7, 1960. Redesignated at 26 FR 5788, June 29, 1961]
[[Page 20]]
SUBCHAPTER B_FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
PART 714_REFUNDS OF PENALTIES ERRONEOUSLY, ILLEGALLY, OR WRONGFULLY
COLLECTED--Table of Contents
Sec.
714.35 Basis, purpose, and applicability.
714.36 Definitions.
714.37 Instructions and forms.
714.38 Who may claim refund.
714.39 Manner of filing.
714.40 Time of filing.
714.41 Statement of claim.
714.42 Designation of trustee.
714.43 Recommendation by county committee.
714.44 Recommendation by State committee.
714.45 Approval by Deputy Administrator.
714.46 Certification for payment.
Authority: Secs. 372, 375, 52 Stat. 65, as amended, 66, as amended;
7 U.S.C. 1372, 1375.
Source: 35 FR 12098, July 29, 1970, unless otherwise noted.
Sec. 714.35 Basis, purpose, and applicability.
(a) Basis and purpose. The regulations set forth in this part are
issued pursuant to the Agricultural Adjustment Act of 1938, as amended,
for the purpose of prescribing the provisions governing refunds of
marketing quota penalties erroneously, illegally, or wrongfully
collected with respect to all commodities subject to marketing quotas
under the Act.
(b) Applicability. This part shall apply to claims submitted for
refunds of marketing quota penalties erroneously, illegally, or
wrongfully collected on all commodities subject to marketing quotas
under the Act. It shall not apply to the refund of penalties which are
deposited in a special deposit account pursuant to sections 314(b),
346(b), 356(b), or 359 of the Agricultural Adjustment Act of 1938, as
amended, or paragraph (3) of Pub. L. 74, 77th Congress, available for
the refund of penalties initially collected which are subsequently
adjusted downward by action of the county committee, review committee,
or appropriate court, until such penalties have been deposited in the
general fund of the Treasury of the United States after determination
that no downward adjustment in the amount of penalty is warranted. All
prior regulations dealing with refunds of penalties which were contained
in this part are superseded upon the effective date of the regulations
in this part.
Sec. 714.36 Definitions.
(a) General terms. In determining the meaning of the provisions of
this part, unless the context indicates otherwise, words imparting the
singular include and apply to several persons or things, words imparting
the plural include the singular, words imparting the masculine gender
include the feminine as well, and words used in the present tense
include the future as well as the present. The definitions in part 719
of this chapter shall apply to this part. The provisions of part 720 of
this chapter concerning the expiration of time limitations shall apply
to this part.
(b) Other terms applicable to this part. The following terms shall
have the following meanings:
(1) ``Act'' means the Agricultural Adjustment Act of 1938, and any
amendments or supplements thereto.
(2) ``Claim'' means a written request for refund of penalty.
(3) ``Claimant'' means a person who makes a claim for refund of
penalty as provided in this part.
(4) ``County Office'' means the office of the Agricultural
Stabilization and Conservation County Committee.
(5) ``Penalty'' means an amount of money collected, including
setoff, from or on account of any person with respect to any commodity
to which this part is applicable, which has been covered into the
general fund of the Treasury of the United States, as provided in
section 372(b) of the Act.
(6) ``State office'' means the office of the Agricultural
Stabilization and Conservation State Committee.
Sec. 714.37 Instructions and forms.
The Deputy Administrator shall cause to be prepared and issued such
[[Page 21]]
instructions and forms as are necessary for carrying out the regulations
in the part.
Sec. 714.38 Who may claim refund.
Claim for refund may be made by:
(a) Any person who was entitled to share in the price or
consideration received by the producer with respect to the marketing of
a commodity from which a deduction was made for the penalty and bore the
burden of such deduction in whole or in part.
(b) Any person who was entitled to share in the commodity or the
proceeds thereof, paid the penalty thereon in whole or in part and has
not been reimbursed therefor.
(c) Any person who was entitled to share in the commodity or the
proceeds thereof and bore the burden of the penalty because he has
reimbursed the person who paid such penalty.
(d) Any person who, as buyer, paid the penalty in whole or in part
in connection with the purchase of a commodity, was not required to
collect or pay such penalty, did not deduct the amount of such penalty
from the price paid the producer, and has not been reimbursed therefor.
(e) Any person who paid the penalty in whole or in part as a surety
on a bond given to secure the payment of penalties and has not been
reimbursed therefor.
(f) Any person who paid the whole or any part of the sum paid as a
penalty with respect to a commodity included in a transaction which in
fact was not a marketing of such commodity and has not been reimbursed
therefor.
Sec. 714.39 Manner of filing.
Claim for refund shall be filed in the county office on a form
prescribed by the Deputy Administrator. If more than one person is
entitled to file a claim, a joint claim may be filed by all such
persons. If a separate claim is filed by a person who is a party to a
joint claim, such separate claim shall not be approved until the
interest of each person involved in the joint claim has been determined.
Sec. 714.40 Time of filing.
Claim shall be filed within 2 years after the date payment was made
to the Secretary. The date payment was made shall be deemed to be the
date such payment was deposited in the general fund of the Treasury as
shown on the certificate of deposit on which such payment was scheduled.
Sec. 714.41 Statement of claim.
The claim shall show fully the facts constituting the basis of the
claim; the name and address of and the amount claimed by every person
who bore or bears any part or all of the burden of such penalty; and the
reasons why such penalty is claimed to have been erroneously, illegally,
or wrongfully collected. It shall be the responsibility of the county
committee to determine that any person who executes a claim as agent or
fiduciary is properly authorized to act in such capacity. There should
be attached to the claim all pertinent documents with respect to the
claim or duly authenticated copies thereof.
Sec. 714.42 Designation of trustee.
Where there is more than one claimant and all the claimants desire
to appoint a trustee to receive and disburse any payment to be made to
them with respect to the claim, they shall be permitted to appoint a
trustee. The person designated as trustee shall execute the declaration
of trust.
Sec. 714.43 Recommendation by county committee.
Immediately upon receipt of a claim, the date of receipt shall be
recorded on the face thereof. The county committee shall determine, on
the basis of all available information, if the data and representations
on the claim are correct. The county committee shall recommend approval
or disapproval of the claim, and attach a statement to the claim, signed
by a member of the committee, giving the reasons for their action. After
the recommendation of approval or disapproval is made by the county
committee, the claim shall be promptly sent to the State committee.
Sec. 714.44 Recommendation by State committee.
A representative of the State committee shall review each claim
referred by the county committee. If a claim is
[[Page 22]]
sent initially to the State committee, it shall be referred to the
appropriate county committee for recommendation as provided in Sec.
714.43 prior to action being taken by the State committee. Any necessary
investigation shall be made. The State committee shall recommend
approval or disapproval of the claim, attaching a statement giving the
reasons for their action, which shall be signed by a representative of
the State committee. After recommending approval or disapproval, the
claim shall be promptly sent to the Deputy Administrator.
Sec. 714.45 Approval by Deputy Administrator.
The Deputy Administrator shall review each claim forwarded to him by
the State committee to determine whether, (a) the penalty was
erroneously, illegally, or wrongfully collected, (b) the claimant bore
the burden of the payment of the penalty, (c) the claim was timely
filed, and (d) under the applicable law and regulations the claimant is
entitled to a refund. If a claim is filed initially with the Deputy
Administrator, he shall obtain the recommendations of the county
committee and the State committee if he deems such action necessary in
arriving at a proper determination of the claim. The claimant shall be
advised in writing of the action taken by the Deputy Administrator. If
disapproved, the claimant shall be notified with an explanation of the
reasons for such disapproval.
Sec. 714.46 Certification for payment.
An officer or employee of the Department of Agriculture authorized
to certify public vouchers for payment shall, for and on behalf of the
Secretary of Agriculture, certify to the Secretary of the Treasury of
the United States for payment all claims for refund which have been
approved.
PART 718_PROVISIONS APPLICABLE TO MULTIPLE PROGRAMS--Table of Contents
Subpart A_General Provisions
Sec.
718.1 Applicability.
718.2 Definitions.
718.3 State committee responsibilities.
718.4 Authority for farm entry and providing information.
718.5 Rule of fractions.
718.6 Controlled substance.
718.7 Furnishing maps.
718.8 Administrative county.
718.9 Signature requirements.
718.10 Time limitations.
718.11 Disqualification due to federal crop insurance fraud.
Subpart B_Determination of Acreage and Compliance
718.101 Measurements.
718.102 Acreage reports.
718.103 Prevented planted and failed acreage.
718.104 Late-filed and revised acreage reports.
718.105 Tolerances, variances, and adjustments.
718.106 Non-compliance and fraudulent acreage reports.
718.107 Acreages.
718.108 Measuring acreage including skip row acreage
718.109 Deductions.
718.110 Adjustments.
718.111 Notice of measured acreage.
718.112 Redetermination.
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Bases
718.201 Farm constitution.
718.202 Determining the land constituting a farm.
718.203 County committee action to reconstitute a farm.
718.204 Reconstitution of allotments, quotas, and bases.
718.205 Substantive change in farming operation, and changes in related
legal entities.
718.206 Determining farms, tracts, allotments, quotas, and bases when
reconstitution is made by division.
718.207 Determining allotments, quotas, and bases when reconstitution is
made by combination.
Subpart D_Equitable Relief From Ineligibility
718.301 Applicability.
718.302 Definitions and abbreviations.
718.303 Reliance on incorrect actions or information.
718.304 Failure to fully comply.
718.305 Forms of relief.
718.306 Finality.
718.307 Special relief approval authority for State Executive Directors.
Authority: 7 U.S.C. 1311 et seq., 1501 et seq., 1921 et seq., 7201
et seq., 15 U.S.C. 714b.
[[Page 23]]
Source: 61 FR 37552, July 18, 1996, unless otherwise noted.
Subpart A_General Provisions
Source: 68 FR 16172, Apr. 3, 2003, unless otherwise noted.
Sec. 718.1 Applicability.
(a) This part:
(1) Is applicable to all programs set forth in chapters VII and XIV
of this title which are administered by the Farm Service Agency (FSA),
except that only Sec. Sec. 718.6 and 718.11 are applicable to parts 761
through 774 of this chapter;
(2) Governs how FSA monitors marketing quotas, allotments, base
acres and acreage reports. The regulations affected are those that
establish procedures for measuring allotments and program eligible
acreage, and determining program compliance.
(b) For all programs, except for those administered under parts 761
through 774 of this chapter:
(1) The provisions of this part will be administered under the
general supervision of the Administrator, FSA, and carried out in the
field by State and county FSA committees (State and county committees);
(2) State and county committees, and representatives and employees
thereof, do not have authority to modify or waive any regulations in
this part;
(3) No provisions or delegation herein to a State or county
committee will preclude the Administrator, FSA, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by a State or county committee;
(4) The Deputy Administrator, FSA, may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(c) The programs under parts 761 through 774 will be administered
according to the part, or parts, applicable to the specific program.
[72 FR 63284, Nov. 8, 2007]
Sec. 718.2 Definitions.
Except as provided in individual parts of chapters VII and XIV of
this title, the following terms shall be as defined herein:
Administrative variance (AV) means the amount by which the
determined acreage of tobacco may exceed the effective allotment and be
considered in compliance with program regulations.
Allotment means an acreage for a commodity allocated to a farm in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Allotment crop means any tobacco crop for which acreage allotments
are established pursuant to part 723 of this chapter.
Barley means barley that follows the standard planting and
harvesting practice of barley for the area in which the barley is grown.
Base acres means the quantity of acres established according to part
1413 of this title.
CCC means the Commodity Credit Corporation.
Combination means consolidation of two or more farms or parts of
farms, having the same operator, into one farm.
Common ownership unit means a distinguishable parcel of land
consisting of one or more tracts of land with the same owners, as
determined by FSA.
Constitution means the make-up of the farm before any change is made
because of change in ownership or operation.
Controlled substances means the term set forth in 21 CFR part 1308.
Corn means field corn or sterile high-sugar corn that follows the
standard planting and harvesting practices for corn for the area in
which the corn is grown. Popcorn, corn nuts, blue corn, sweet corn, and
corn varieties grown for decoration uses are not corn.
County means the county or parish of a state. For Alaska, Puerto
Rico and the Virgin Islands, a county shall be an area designated by the
State committee with the concurrence of the Deputy Administrator.
County committee means the FSA county committee.
Crop reporting date means the latest date the Administrator, FSA
will allow the farm operator, owner, or their
[[Page 24]]
agent to submit a crop acreage report in order for the report to be
considered timely.
Cropland. (a) Means land which the county committee determines meets
any of the following conditions:
(1) Is currently being tilled for the production of a crop for
harvest. Land which is seeded by drilling, broadcast or other no-till
planting practices shall be considered tilled for cropland definition
purposes;
(2) Is not currently tilled, but it can be established that such
land has been tilled in a prior year and is suitable for crop
production;
(3) Is currently devoted to a one-row or two-row shelter belt
planting, orchard, or vineyard;
(4) Is in terraces that, were cropped in the past, even though they
are no longer capable of being cropped;
(5) Is in sod waterways or filter strips planted to a perennial
cover;
(6) Is preserved as cropland in accordance with part 1410 of this
title; or
(7) Is land that has newly been broken out for purposes of being
planted to a crop that the producer intends to, and is capable of,
carrying through to harvest, using tillage and cultural practices that
are consistent with normal practices in the area; provided further that,
in the event that such practices are not utilized other than for reasons
beyond the producer's control, the cropland determination shall be void
retroactive to the time at which the land was broken out.
(b) Land classified as cropland shall be removed from such
classification upon a determination by the county committee that the
land is:
(1) No longer used for agricultural production;
(2) No longer suitable for production of crops;
(3) Subject to a restrictive easement or contract that prohibits its
use for the production of crops unless otherwise authorized by the
regulation of this chapter;
(4) No longer preserved as cropland in accordance with the
provisions of part 1410 of this title and does not meet the conditions
in paragraphs (a)(1) through (a)(6) of this definition; or
(5) Converted to ponds, tanks or trees other than those trees
planted in compliance with a Conservation Reserve Program contract
executed pursuant to part 1410 of this title, or trees that are used in
one-or two-row shelterbelt plantings, or are part of an orchard or
vineyard.
Current year means the year for which allotments, quotas, acreages,
and bases, or other program determinations are established for that
program. For controlled substance violations, the current year is the
year of the actual conviction.
Deputy Administrator means Deputy Administrator for Farm Programs,
Farm Service Agency, U.S. Department of Agriculture or their designee.
Determination means a decision issued by a State, county or area FSA
committee or its employees that affects a participant's status in a
program administered by FSA.
Determined acreage means that acreage established by a
representative of the Farm Service Agency by use of official acreage,
digitizing or planimetering areas on the photograph or other
photographic image, or computations from scaled dimensions or ground
measurements.
Direct and counter-cyclical program (DCP) cropland means land that
currently meets the definition of cropland, land that was devoted to
cropland at the time it was enrolled in a production flexibility
contract in accordance with part 1413 of this title and continues to be
used for agricultural purposes, or land that met the definition of
cropland on or after April, 4, 1996, and continues to be used for
agricultural purposes and not for nonagricultural commercial or
industrial use.
Division means the division of a farm into two or more farms or
parts of farms.
Entity means a corporation, joint stock company, association limited
partnership, irrevocable trust, estate, charitable organization, or
other similar organization including any such organization participating
in the farming operation as a partner in a general partnership, a
participant in a joint venture, a grantor of a revocable trust, or as a
participant in a similar organization.
[[Page 25]]
Extra Long Staple (ELS) Cotton means cotton that follows the
standard planting and harvesting practices of the area in which the
cotton is grown, and meets all of the following conditions:
(1) American-Pima, Sea Island, Sealand, all other varieties of the
Barbandense species of cotton and any hybrid thereof, and any other
variety of cotton in which 1 or more of these varieties is predominant;
and,
(2) The acreage is grown in a county designated as an ELS county by
the Secretary; and,
(3) The production from the acreage is ginned on a roller-type gin.
Family member means an individual to whom a person is related as
spouse, lineal ancestor, lineal descendant, or sibling, including:
(1) Great grandparent;
(2) Grandparent;
(3) Parent;
(4) Child, including a legally adopted child;
(5) Grandchild
(6) Great grandchildren;
(7) Sibling of the family member in the farming operation; and
(8) Spouse of a person listed in paragraphs (1) through (7) of this
definition.
Farm means a tract, or tracts, of land that are considered to be a
separate operation under the terms of this part provided further that
where multiple tracts are to be treated as one farm, the tracts must
have the same operator and must also have the same owner except that
tracts of land having different owners may be combined if all owners
agree to the treatment of the multiple tracts as one farm for these
purposes.
Farm inspection means an inspection by an authorized FSA
representative using aerial or ground compliance to determine the extent
of producer adherence to program requirements.
Farm number means a number assigned to a farm by the county
committee for the purpose of identification.
Farmland means the sum of the DCP cropland, forest, acreage planted
to an eligible crop acreage as specified in 1437.3 of this title and
other land on the farm.
Field means a part of a farm which is separated from the balance of
the farm by permanent boundaries such as fences, permanent waterways,
woodlands, and croplines in cases where farming practices make it
probable that such cropline is not subject to change, or other similar
features.
GIS means Geographic Information System or a system that stores,
analyzes, and manipulates spatial or geographically referenced data. GIS
computes distances and acres using stored data and calculations.
GPS means Global Positioning System or a positioning system using
satellites that continuously transmit coded information. The information
transmitted from the satellites is interpreted by GPS receivers to
precisely identify locations on earth by measuring distance from the
satellites.
Grain sorghum means grain sorghum of a feed grain or dual purpose
variety (including any cross that, at all stages of growth, having
characteristics of a feed grain or dual purpose variety) that follows
the standard planting and harvesting practice for grain sorghum for the
area in which the grain sorghum was planted. Sweet sorghum is not
considered a grain sorghum.
Ground measurement means the distance between 2 points on the
ground, obtained by actual use of a chain tape, GPS with a minimum
accuracy level as determined by the Deputy Administrator, or other
measuring device.
Joint operation means a general partnership, joint venture, or other
similar business organization.
Landlord means one who rents or leases farmland to another.
Measurement service means a measurement of acreage or farm-stored
commodities performed by a representative of FSA and paid for by the
producer requesting the measurement.
Measurement service after planting means determining a crop or
designated acreage after planting but before the farm operator files a
report of acreage for the crop.
Measurement service guarantee means a guarantee provided when a
producer requests and pays for an authorized FSA representative to
measure acreage for FSA and CCC program participation unless the
producer takes action to adjust the measured acreage. If the producer
has taken no such action, and
[[Page 26]]
the measured acreage is later discovered to be incorrect, the acreage
determined pursuant to the measurement service will be used for program
purposes for that program year.
Minor child means an individual who is under 18 years of age. State
court proceedings conferring majority on an individual under 18 years of
age will not change such an individual's status as a minor.
Nonagricultural commercial or industrial use means land that is no
longer suitable for producing annual or perennial crops, including
conserving uses, or forestry products.
Normal planting period means that period during which the crop is
normally planted in the county, or area within the county, with the
expectation of producing a normal crop.
Normal row width means the normal distance between rows of the crop
in the field, but not less than 30 inches for all crops.
Oats means oats that follows the standard planting and harvesting
practice of oats for the area in which the oats are grown.
Operator means an individual, entity, or joint operation who is
determined by the FSA county committee to be in control of the farming
operations on the farm.
Owner means one who has legal ownership of farmland, including:
(1) Any agency of the Federal Government, however, such agency shall
not be eligible to receive any payment pursuant to such contract;
(2) One who is buying farmland under a contract for deed;
(3) One who has a life-estate in the property; or
(4) For purposes of enrolling a farm in a program authorized by
chapters VII and XIV of this title:
(i) One who has purchased a farm in a foreclosure proceeding; and
(A) The redemption period has not passed; and
(B) The original owner has not redeemed the property.
(ii) One who meets the provisions of paragraph (d)(1)(i) of this
definition shall be entitled to receive benefits in accordance with an
agency program only to the extent the owner complies with all program
requirements.
(5) One who is an heir to property but cannot provide legal
documentation to confirm ownership of the property, if such heir
certifies to the ownership of the property and the certification is
considered acceptable, as determined by the Deputy Administrator. Upon a
false or inaccurate certification the Deputy Administrator may impose
liability on the certifying party for additional cost that results--
however such a certification may be taken by the Deputy Administrator as
a bar to other claims where there has been a failure of other persons
claiming an interest in the property to act promptly to protect or
declare their interest or where the current public records do not
accurately set out the current ownership of the farm.
Partial reconstitution means a reconstitution that is made effective
in the current year for some crops, but is not made effective in the
current year for other crops. This results in the same farm having two
or more farm numbers in one crop year.
Participant means one who participates in, or receives payments or
benefits in accordance with any of the programs administered by FSA.
Pasture means land that is used to, or has the potential to, produce
food for grazing animals.
Person means an individual, or an individual participating as a
member of a joint operation or similar operation, a corporation, joint
stock company, association, limited stock company, limited partnership,
irrevocable trust, revocable trust together with the grantor of the
trust, estate, or charitable organization including any entity
participating in the farming operation as a partner in a general
partnership, a participant in a joint venture, a grantor of a revocable
trust, or a participant in a similar entity, or a State, political
subdivision or agency thereof. To be considered a separate person for
the purpose of this part, the individual or other legal entity must:
(1) Have a separate and distinct interest in the land or the crop
involved;
(2) Exercise separate responsibility for such interest; and
(3) Be responsible for the cost of farming related to such interest
from a
[[Page 27]]
fund or account separate from that of any other individual or entity.
Producer means an owner, operator, landlord, tenant, or
sharecropper, who shares in the risk of producing a crop and who is
entitled to share in the crop available for marketing from the farm, or
would have shared had the crop been produced. A producer includes a
grower of hybrid seed.
Quota means the pounds allocated to a farm for a commodity in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Random inspection means an examination of a farm by an authorized
representative of FSA selected as a part of an impartial sample to
determine the adherence to program requirements.
Reconstitution means a change in the land constituting a farm as a
result of combination or division.
Reported acreage means the acreage reported by the farm operator,
farm owner, farm producer, or their agent on a Form prescribed by the
FSA.
Required inspection means an examination by an authorized
representative of FSA of a farm specifically selected by application of
prescribed rules to determine adherence to program requirements or to
verify the farm operator's, farm owner's, farm producer, or agent's
report.
Rice means rice that follows the standard planting and harvesting
practices of the area excluding sweet, glutinous, or candy rice such as
Mochi Gomi.
Secretary means the Secretary of Agriculture of the United States,
or a designee.
Sharecropper means one who performs work in connection with the
production of a crop under the supervision of the operator and who
receives a share of such crop for its labor.
Skip-row or strip-crop planting means a cultural practice in which
strips or rows of the crop are alternated with strips of idle land or
another crop.
Staking and referencing means determining an acreage before planting
by:
(1) Measuring or computing a delineated area from ground
measurements and documenting the area measured; and, (2) Staking and
referencing the area on the ground.
Standard deduction means an acreage that is excluded from the gross
acreage in a field because such acreage is considered as being used for
farm equipment turn-areas. Such acreage is established by application of
a prescribed percentage of the area planted to the crop in lieu of
measuring the turn area.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United
States, American Samoa, the Commonwealth of the Northern Mariana
Islands, or the Trust Territory of the Pacific Islands.
Subdivision means a part of a field that is separated from the
balance of the field by temporary boundary, such as a cropline which
could be easily moved or will likely disappear.
Tenant means:
(1) One who rents land from another in consideration of the payment
of a specified amount of cash or amount of a commodity; or
(2) One (other than a sharecropper) who rents land from another
person in consideration of the payment of a share of the crops or
proceeds therefrom.
Tolerance means a prescribed amount within which the reported
acreage and/or production may differ from the determined acreage and/or
production and still be considered as correctly reported.
Tract means a unit of contiguous land under one ownership, which is
operated as a farm, or part of a farm.
Tract combination means the combining of two or more tracts if the
tracts have common ownership and are contiguous.
Tract division means the dividing of a tract into two or more tracts
because of a change in ownership or operation.
Turn-area means the area across the ends of crop rows which is used
for operating equipment necessary to the production of a row crop (also
called turn row, headland, or end row).
Upland cotton means planted and stub cotton that is not considered
extra long staple cotton, and that follows the standard planting and
harvesting practices of the area and is produced from other than pure
strain varieties of the Barbadense species, any hybrid thereof, or any
other variety of cotton in which
[[Page 28]]
one or more of these varieties predominate. For program purposes, brown
lint cotton is considered upland cotton.
Wheat means wheat for feed or dual purpose variety that follows the
standard planting and harvesting practice of wheat for the area in which
the wheat is grown.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004]
Sec. 718.3 State committee responsibilities.
(a) The State committee shall, with respect to county committees:
(1) Take any action required of the county committee, which the
county committee fails to take in accordance with this part;
(2) Correct or require the county committee to correct any action
taken by such committee, which is not in accordance with this part;
(3) Require the county committee to withhold taking any action which
is not in accordance with this part;
(4) Review county office rates for producer services to determine
equity between counties;
(5) Determine, based on cost effectiveness, which counties will use
aerial compliance methods and which counties will use ground measurement
compliance methods; or
(6) Adjust the per acre rate for acreage in excess of 25 acres to
reflect the actual cost involved when performing measurement service
from aerial slides or digital images.
(b) The State committee shall submit to the Deputy Administrator
requests to deviate from deductions prescribed in Sec. 718.108, or the
error amount or percentage for refunds of redetermination costs as
prescribed in Sec. 718.111.
Sec. 718.4 Authority for farm entry and providing information.
(a) This section applies to all farms that have a tobacco allotment
or quota under part 723 of this chapter and all farms that are currently
participating in programs administered by FSA.
(b) A representative of FSA may enter any farm that participates in
an FSA or CCC program in order to conduct a farm inspection as defined
in this part. A program participant may request that the FSA
representative present written authorization for the farm inspection
before granting access to the farm. If a farm inspection is not allowed
within 30 days of written authorization:
(1) All FSA and CCC program benefits for that farm shall be denied;
(2) The person preventing the farm inspection shall pay all costs
associated with the farm inspection;
(3) The entire crop production on the farm will be considered to be
in excess of the quota established for the farm; and
(4) For tobacco, the farm operator must furnish proof of disposition
of:
(i) All tobacco which is in addition to the production shown on the
marketing card issued with respect to such farm; and
(ii) No credit will be given for disposing of excess tobacco other
than that identified by a marketing card unless disposed of in the
presence of FSA in accordance with Sec. 718.109 of this part.
(c) If a program participant refuses to furnish reports or data
necessary to determine benefits in accordance with paragraph (a) of this
section, or FSA determines that the report or data was erroneously
provided through the lack of good faith, all program benefits relating
to the report or data requested will be denied.
Sec. 718.5 Rule of fractions.
(a) Fractions shall be rounded after completion of the entire
associated computation. All mathematical calculations shall be carried
to two decimal places beyond the number of decimal places required by
the regulations governing each program. In rounding, fractional digits
of 49 or less beyond the required number of decimal places shall be
dropped; if the fractional digits beyond the required number of decimal
places are 50 or more, the figure at the last required decimal place
shall be increased by ``1'' as follows:
------------------------------------------------------------------------
Required decimal Computation Result
------------------------------------------------------------------------
Whole numbers...................... 6.49 (or less)........ 6
6.50 (or more)........ 7
Tenths............................. 7.649 (or less)....... 7.6
7.650 (or more)....... 7.7
Hundredths......................... 8.8449 (or less)...... 8.84
8.8450 (or more)...... 8.85
Thousandths........................ 9.63449 (or less)..... 9.634
9.63450 (or more)..... 9.635
[[Page 29]]
0 thousandths...................... 10.993149 (or less)... 10.9931
10.993150 (or more)... 10.9932
------------------------------------------------------------------------
(b) The acreage of each field or subdivision computed for tobacco
and CCC disaster assistance programs shall be recorded in acres and
hundredths of an acre, dropping all thousandths of an acre. The acreage
of each field or subdivision computed for crops, except tobacco, shall
be recorded in acres and tenths of an acre, rounding all hundredths of
an acre to the nearest tenth.
Sec. 718.6 Controlled substance.
(a) The following terms apply to this section:
(1) USDA benefit means the issuance of any grant, contract, loan, or
payment by appropriated funds of the United States.
(2) Person means an individual.
(b) Notwithstanding any other provision of law, any person convicted
under Federal or State law of:
(1) Planting, cultivating, growing, producing, harvesting, or
storing a controlled substance in any crop year is ineligible during the
crop year of conviction and the four succeeding crop years, for any of
the following USDA benefits:
(i) Any payments or benefits under the Direct and Counter Cyclical
Program (DCP) in accordance with part 1412 of this title;
(ii) Any payments or benefits for losses to trees, crops, or
livestock covered under disaster programs administered by FSA;
(iii) Any price support loan available in accordance with part 1421
of this title;
(iv) Any price support or payment made under the Commodity Credit
Corporation Charter Act;
(v) A farm storage facility loan made under section 4(h) of the
Commodity Credit Corporation Charter Act or any other Act;
(vi) Crop Insurance under the Federal Crop Insurance Act;
(vii) A loan made or guaranteed under the Consolidated Farm and
Rural Development Act or any other law administered by FSA's Farm Loan
Programs.
(2) Possession or trafficking of a controlled substance, is
ineligible for any or all USDA benefits:
(i) At the discretion of the court,
(ii) To the extent and for a period of time the court determines.
(c) If a person denied benefits under this section is a shareholder,
beneficiary, or member of an entity or joint operation, benefits for
which the entity or joint operation is eligible will be reduced, for the
appropriate period, by a percentage equal to the total interest of the
shareholder, beneficiary, or member.
[72 FR 63284, Nov. 8, 2007]
Sec. 718.7 Furnishing maps.
A reasonable number, as determined by FSA, of reproductions of
photographs, mosaics and maps shall be available to the owner of a farm
insurance companies reinsured by the Federal Crop Insurance Corporation
(FCIC), private party contractors performing their official duties on
behalf of FSA, CCC, and other USDA agencies. To all others,
reproductions shall be made available at the rate FSA determines will
cover the cost of making such items available.
Sec. 718.8 Administrative county.
(a) If all land on the farm is physically located in one county, the
farm shall be administratively located in such county. If there is no
FSA office in the county or the county offices have been consolidated,
the farm shall be administratively located in the contiguous county most
convenient for the farm operator.
(b) If the land on the farm is located in more than one county, the
farm shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) The State committee shall submit all requests to deviate from
regulations specified in this section to the Deputy Administrator.
[[Page 30]]
Sec. 718.9 Signature requirements.
(a) When a program authorized by this chapter or Chapter XIV of this
title requires the signature of a producer; landowner; landlord; or
tenant, a husband or wife may sign all such FSA or CCC documents on
behalf of the other spouse, unless such other spouse has provided
written notification to FSA and CCC that such action is not authorized.
The notification must be provided to FSA with respect to each farm.
(b) Except a husband or wife may not sign a document on behalf of a
spouse with respect to:
(1) Program document required to be executed in accordance with part
3 of this title;
(2) Easements entered into under part 1410 of this title;
(3) Power of attorney;
(4) Such other program documents as determined by FSA or CCC.
(c) An individual; duly authorized officer of a corporation; duly
authorized partner of a partnership; executor or administrator of an
estate; trustee of a trust; guardian; or conservator may delegate to
another the authority to act on their behalf with respect to FSA and CCC
programs administered by USDA service center agencies by execution of a
Power of Attorney, or such other form as approved by the Deputy
Administrator. FSA and CCC may, at their discretion, allow the
delegations of authority by other individuals through use of the Power
of Attorney or such other form as approved by the Deputy Administrator.
(d) Notwithstanding another provision of this regulation or any
other FSA or CCC regulation in this title, a parent may execute
documents on behalf of a minor child unless prohibited by a statute or
court order.
(e) Notwithstanding any other provision in this title, an authorized
agent of the Bureau of Indian Affairs (BIA) of the United States
Department of Interior may sign as agent for landowners with properties
affiliated with or under the management or trust of the BIA. For
collection purposes, such payments will be considered as being made to
the persons who are the beneficiaries of the payment or may,
alternatively, be considered as an obligation of all persons on the farm
in general. In the event of a need for a refund or other claim may be
collected, among other means, by other monies due such persons or the
farm.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004]
Sec. 718.10 Time limitations.
Whenever the final date prescribed in any of the regulations in this
title for the performance of any act falls on a Saturday, Sunday,
national holiday, State holiday on which the office of the county or
State Farm Service Agency committee having primary cognizance of the
action required to be taken is closed, or any other day on which the
cognizant office is not open for the transaction of business during
normal working hours, the time for taking required action shall be
extended to the close of business on the next working day. Or in case
the action required to be taken may be performed by mailing, the action
shall be considered to be taken within the prescribed period if the
mailing is postmarked by midnight of such next working day. Where the
action required to be taken is with a prescribed number of days after
the mailing of notice, the day of mailing shall be excluded in computing
such period of time.
Sec. 718.11 Disqualification due to Federal crop insurance violation.
(a) Section 515(h) of the Federal Crop Insurance Act (FCIA) provides
that a person who willfully and intentionally provides false or
inaccurate information to the Federal Crop Insurance Corporation (FCIC)
or to an approved insurance provider with respect to a policy or plan of
FCIC insurance, after notice and an opportunity for a hearing on the
record, will be subject to one or more of the sanctions described in
section 515(h)(3). In section 515(h)(3), the FCIA specifies that in the
case of a violation committed by a producer, the producer may be
disqualified for a period of up to 5 years from receiving any monetary
or non-monetary benefit under a number of programs. The list includes,
but is not limited to, benefits under:
(1) The FCIA.
[[Page 31]]
(2) The Agricultural Market Transition Act (7 U.S.C. 7201 et seq.),
including the Noninsured Crop Disaster Assistance Program under section
196 of that Act (7 U.S.C. 7333).
(3) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.).
(4) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.).
(5) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.).
(6) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.).
(7) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921
et seq.).
(8) Any law that provides assistance to a producer of an
agricultural commodity affected by a crop loss or a decline in prices of
agricultural commodities.
(b) Violation determinations are made by FCIC. However, upon notice
from FCIC to FSA that a producer has been found to have committed a
violation to which paragraph (a) of this section applies, that person
will be ineligible for payments under the programs specified in
paragraph (a) of this section that are funded by FSA for the same period
of time for which, as determined by FCIC, the producer will be
ineligible for crop insurance benefits of the kind referred to in
paragraph (a)(1) of this section. Appeals of the determination of
ineligibility will be administered under the rules set by FCIC.
(c) Other sanctions may also apply.
[72 FR 63284, Nov. 8, 2007]
Subpart B_Determination of Acreage and Compliance
Source: 68 FR 16176, Apr. 3, 2003, unless otherwise noted.
Sec. 718.101 Measurements.
(a) Measurement services include, but are not limited to, measuring
land and crop areas, quantities of farm-stored commodities, and
appraising the yields of crops in the field when required for program
administration purposes. The county committee shall provide measurement
service if the producer requests such service and pays the cost, except
that service shall not be provided to determine total acreage or
production of a crop when the request is made:
(1) After the established final reporting date for the applicable
crop, unless a late filed report is accepted as provided in Sec.
718.103;
(2) After the farm operator has furnished production evidence when
required for program administration purposes except as provided in this
subpart; or
(3) In connection with a late-filed report of acreage, unless there
is evidence of the crop's existence in the field and use made of the
crop, or the lack of the crop due to a disaster condition affecting the
crop.
(b) The acreage requested to be measured by staking and referencing
shall not exceed the effective farm allotment for marketing quota crops
or acreage of a crop that is limited to a specific number of acres to
meet any program requirement.
(c) When a producer requests, pays for, and receives written notice
that measurement services have been furnished, the measured acreage
shall be guaranteed to be correct and used for all program purposes for
the current year even though an error is later discovered in the
measurement thereof, if the producer has taken action with an economic
significance based on the measurement service, and the entire crop
required for the farm was measured. If the producer has not taken action
with an economic significance based on the measurement service, the
producer shall be notified in writing that an error was discovered and
the nature and extent of such error. In such cases, the corrected
acreage will be used for determining program compliance for the current
year.
(d) When a measurement service reveals acreage in excess of the
permitted acreage and the allowable tolerance as defined in this part,
the producer must destroy the excess acreage and pay for FSA to verify
destruction, in order to keep the measurement service guarantee.
Sec. 718.102 Acreage reports.
(a) In order to be eligible for benefits, participants in the
programs specified in paragraphs (b)(1) through (b)(6) of
[[Page 32]]
this section must annually submit accurate information as required by
these provisions.
(b)(1) Participants in the programs governed by part 1412 of this
title must report the acreage of fruits and vegetables planted for
harvest on a farm enrolled in such program;
(2) Participants in the programs governed by parts 1421 and 1427 of
this title must report the acreage planted to a commodity for harvest
for which a marketing assistance loan or loan deficiency payment is
requested;
(3) Participants in the programs governed by part 1410 of this title
must report the use of land enrolled in such programs;
(4) All participants in the programs governed by part 1437 of this
title must report all acreage in the county of the eligible crop in
which the producer has a share;
(5) Participants in the programs governed by part 723 of this
chapter and part 1464 of this title must report the acreage planted to
tobacco by kind on all farms that have an effective allotment or quota
greater than zero;
(6) All participants in the programs governed by parts 1412, 1421,
and 1427 of this title must report the use of all cropland on the farm.
(7) All producers requesting to report acreage as prevented planted
or failed must provide documentation to FSA where the farm is
administered that meets the provisions of Sec. 718.103.
(c) The reports required under paragraph (a) of this section shall
be timely filed by the farm operator, farm owner, producer of the crop
on the farm, or a duly authorized representative with the county
committee by the final reporting date applicable to the crop as
established by the county committee and State committee.
[68 FR 16176, Apr. 3, 2003, as amended at 71 FR 13741, Mar. 17, 2006]
Sec. 718.103 Prevented planted and failed acreage.
(a) Prevented planting is the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC. The eligible cause of loss
that prevented the planting must have:
(1) Occurred after a previous planting period for the crop;
(2) Occurred before the final planting date for the crop in the
applicable crop year or, in the case of multiple plantings, the harvest
date of the first planting in the applicable planting period, and
(3) Similarly affected other producers in the area, as determined by
CCC.
(b) To be approved by FSA as prevented planted acreage:
(1) The acreage must have been reported within 15 calendar days
after the latter of
(i) The occurrence of prevented planting, or
(ii) The end of the planting period;
(2) The acreage must have been prevented from being planted as the
result of a natural disaster and not a management decision; and
(3) The prevented planted acreage report must be acted on by the
COC. The COC will deny the acreage report if it is not satisfied with
the documentation provided.
(c) To receive prevented planted credit for acreage:
(1) The producer must show there was the intent to plant the acreage
by providing documentation of field preparation, seed purchase and any
other information that shows the acreage could have been planted and
harvested under normal weather conditions, and
(2) The producer must show that the amount of the prevented planted
acreage credit is consistent with prior years' planting history for the
farm.
(d) Eligible prevented planting acreage will be determined on the
basis of the producer's intent to plant the crop acreage and possession
of, or access to, resources to plant, grow, and harvest the crop, as
applicable.
(e) Prevented planting acreage credit is not provided on acreage
that had either a previous or subsequent crop planted on the acreage,
unless the COC 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;
[[Page 33]]
(3) Both the initial and subsequent planted crops were planted or
prevented-planted within the normal planting period for that crop; and
(4) Both the initial and subsequent planted crops meet all other
eligibility provisions of this part including good farming practices.
(f) Prevented planted acreage credit will not be given to crops
where the prevented-planted acreage was affected by drought, unless:
(1) On the final planting date for non-irrigated acreage, the area
that is prevented from being planted has insufficient soil moisture for
germination of seed and progress toward crop maturity because of a
prolonged period of dry weather, as determined by CCC; and
(2) Prolonged precipitation deficiencies exceeded the D2 level as
determined using the U.S. Drought Monitor; and
(3) Verifiable information is collected from sources whose business
or purpose it is to record weather conditions, as determined by CCC, and
including but not limited to the local weather reporting stations of the
U.S. National Weather Service.
(g) Prevented planted acreage credit 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 if there was not a reasonable probability of having adequate
water to carry out an irrigation practice.
(h) Acreage ineligible for prevented planting coverage includes, but
is not limited to acreage:
(1) Which planting history or conservation plans indicate would
remain fallow for crop rotation purposes;
(2) Used for conservation purposes or intended to be or considered
to have been left unplanted under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs; and
(3) Not planted because of a management decision.
(i) Failed acreage is acreage that was planted with the proper
equipment during the planting period but failed as a result of an
eligible cause of loss, as determined by CCC.
(j) To be approved by CCC as failed acreage the acreage must have
been reported as failed acreage before disposition of the crop, and the
acreage must have been planted under normal conditions but failed as the
result of a natural disaster and not a management decision. Producers
who file a failed acreage report must have the request acted on by the
COC. The COC will deny the acreage report if it is not satisfied with
the documentation provided.
(k) To receive failed acreage credit the producer must show all of
the following:
(1) That the acreage was planted under normal conditions using the
proper equipment with the intent to harvest the acreage.
(2) Provide documentation that the crop was planted using farming
practices consistent for the crop and area, but could not be brought to
harvest because of disaster-related conditions.
(l) The eligible cause for failed acreage must have:
(1) Occurred after the crop was planted, and
(2) Before the normal harvest date for the crop in the applicable
crop year or in the case of multiple plantings, the harvest date of the
first planting in the applicable planting period, and
(3) Other producers in the area were similarly affected as
determined by CCC.
(m) Eligible failed acreage will be determined on the basis of the
producer planting the crop under normal conditions with the expectation
to take the crop to harvest.
(n) Acreage ineligible for failed acreage credit includes, but is
not limited to acreage:
(1) Which was planted using methods that could not be considered
normal for the area and without the expectation of harvest;
(2) Used for conservation purposes or intended to be or considered
to have been un-harvested under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs; and
[[Page 34]]
(3) That failed because of a management decision.
[71 FR 13741, Mar. 17, 2006]
Sec. 718.104 Late-filed and revised acreage reports.
(a) Late-filed acreage reports may be accepted after the final
reporting date, and be considered timely filed, if both of the following
apply:
(1) The crop or identifiable crop residue is in the field, and
(2) The acreage has not already been determined by FSA.
(b) The farm operator filing a report late shall pay the cost of a
farm inspection unless FSA determines that failure to report in a timely
manner was beyond the producer's control.
(c) Revised acreage reports may be filed with respect to 2005 and
subsequent years to change the acreage reported if:
(1) The acreage has not already been determined by FSA; and
(2) Actual crop or residue is present in the field.
(d) Revised reports shall be filed and accepted:
(1) At any time for all crops if the crop or residue still exists in
the field for inspection to verify the existence and use made of the
crop, the lack of the crop, or a disaster condition affecting the crop;
and
(2) If the producer was in compliance with all other program
requirements at the reporting date.
[71 FR 13742, Mar. 17, 2006]
Sec. 718.105 Tolerances, variances, and adjustments.
(a) Tolerance is the amount by which the determined acreage for a
crop may differ from the reported acreage or allotment for the crop and
still be considered in compliance with program requirements under
Sec. Sec. 718.102(b)(1), (b)(3) and (b)(5).
(b) Tolerance rules apply to those fields for which a staking and
referencing was performed but such acreage was not planted according to
those measurements or when a measurement service is not requested for
acreage destroyed to meet program requirements.
(c) Tolerance rules do not apply to:
(1) Program requirements of Sec. Sec. 718.102(b)(2), (b)(4) and
(b)(6);
(2) Official fields when the entire field is devoted to one crop;
(3) Those fields for which staking and referencing was performed and
such acreage was planted according to those measurements; or
(4) The adjusted acreage for farms using measurement after planting
which have a determined acreage greater than the marketing quota crop
allotment.
(d) An administrative variance is applicable to all allotment crop
acreages. Allotment crop acreages as determined in accordance with this
part shall be deemed in compliance with the effective farm allotment or
program requirement when the determined acreage does not exceed the
effective farm allotment by more than an administrative variance
determined as follows:
(1) For all kinds of tobacco subject to marketing quotas, except
dark air-cured and fire-cured the larger of 0.1 acre or 2 percent of the
allotment; and
(2) For dark air-cured and fire-cured tobacco, an acreage based on
the effective acreage allotment as provided in the table as follows:
------------------------------------------------------------------------
Administrative
Effective acreage allotment is within this range variance
------------------------------------------------------------------------
0.01 to 0.99......................................... 0.01
1.00 to 1.49......................................... 0.02
1.50 to 1.99......................................... 0.03
2.00 to 2.49......................................... 0.04
2.50 to 2.99......................................... 0.05
3.00 to 3.49......................................... 0.06
3.50 to 3.99......................................... 0.07
4.00 to 4.49......................................... 0.08
4.50 and up.......................................... 0.09
------------------------------------------------------------------------
(e) A tolerance applies to tobacco, other than flue-cured or burley,
if the measured acreage exceeds the allotment by more than the
administrative variance but by not more than the tolerance. Such excess
acreage of tobacco may be adjusted to the effective farm acreage
allotment to avoid marketing quota penalties or receive price support.
(f) If the acreage report for a crop is outside the tolerance for
that crop:
(1) FSA may consider the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5) not to have been met, and;
(2) Participants may be ineligible for all or a portion of payments
or benefits
[[Page 35]]
subject to the requirements of Sec. Sec. 718.102 (b)(1), (b)(3) and
(b)(5).
Sec. 718.106 Non-compliance and fraudulent acreage reports.
Participants that knowingly and willfully provide false or
inaccurate acreage reports may be ineligible for some or all payments or
benefits subject to the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5):
(a) The county committee determines that the acreage report filed
according to Sec. Sec. 718.102 (b)(1), (b)(3) and (b)(5) is inaccurate,
and;
(b) A good-faith effort to accurately report the acreage was not
made because the report was knowingly and willfully falsified.
Sec. 718.107 Acreages.
(a) If an acreage has been established by FSA for an area delineated
on an aerial photograph or within a GIS, such acreage will be recognized
by the county committee as the acreage for the area until such time as
the boundaries of such area are changed. When boundaries not visible on
the aerial photograph are established from data furnished by the
producer, such acreage shall not be recognized as official acreage until
an authorized representative of FSA verifies the boundaries.
(b) Measurements of any row crop shall extend beyond the planted
area by the larger of 15 inches or one-half the distance between the
rows.
(c) The entire acreage of a field or subdivision of a field devoted
to a crop shall be considered as devoted to the crop subject to a
deduction or adjustment except as otherwise provided in this part.
Sec. 718.108 Measuring acreage including skip row acreage.
(a) When one crop is alternating with another crop, whether or not
both crops have the same growing season, only the acreage that is
actually planted to the crop being measured will be considered to be
acreage devoted to the measured crop.
(b) Subject to the provisions of this paragraph and section, whether
planted in a skip row pattern or without a pattern of skipped rows, the
entire acreage of the field or subdivision may be considered as devoted
to the crop only where the distance between the rows, for all rows, is
40 inches or less. If there is a skip that creates idle land wider than
40 inches, or if the distance between any rows is more than 40 inches,
then the area planted to the crop shall be considered to be that area
which would represent the smaller of; a 40 inch width between rows, or
the normal row spacing in the field for all other rows in the field--
those that are not more than 40 inches apart. The allowance for
individual rows would be made based on the smaller of actual spacing
between those rows or the normal spacing in the field. For example, if
the crop is planted in single, wide rows that are 48 inches apart, only
20 inches to either side of each row (for a total of 40 inches between
the two rows) could, at a maximum, be considered as devoted as the crop
and normal spacing in the field would control. Half the normal distance
between rows will also be allowed beyond the outside planted rows not to
exceed 20 inches and will reflect normal spacing in the field.
(c) In making calculations under this section, further reductions
may be made in the acreage considered planted if it is determined that
the acreage is more sparsely planted than normal using reasonable and
customary full production planting techniques.
(d) The Deputy Administrator has the discretionary authority to
allow row allowances other than those specified in this section in those
instances in which crops are normally planted with spacings greater or
less than 40 inches, such as in case of tobacco, or where other
circumstances are present which the Deputy Administrator finds justifies
that allowance.
(e) Paragraphs (a) through (d) of this section shall apply with
respect to the 2003 and subsequent crops. For preceding crops, the rules
in effect on January 1, 2002, shall apply.
Sec. 718.109 Deductions.
(a) Any contiguous area which is not devoted to the crop being
measured and which is not part of a skip-row pattern under Sec. 718.108
shall be deducted from the acreage of the crop if such area
[[Page 36]]
meets the following minimum national standards or requirements:
(1) A minimum width of 30 inches;
(2) For tobacco--three-hundredths (.03) acre. Turn areas, terraces,
permanent irrigation and drainage ditches, sod waterways, non-cropland,
and subdivision boundaries each of which is at least 30 inches in width
may be combined to meet the 0.03-acre minimum requirement; or
(3) For all other crops and land uses--one-tenth (.10) acre. Turn
areas, terraces, permanent irrigation and drainage ditches, sod
waterways, non-cropland, and subdivision boundaries each of which is at
least 30 inches in width and each of which contain 0.1 acre or more may
be combined to meet any larger minimum prescribed for a State in
accordance with this subpart.
(b) If the area not devoted to the crop is located within the
planted area, the part of any perimeter area that is more than 217.8
feet (33 links) in width will be considered to be an internal deduction
if the standard deduction is used.
(c) A standard deduction of 3 percent of the area devoted to a row
crop and zero percent of the area devoted to a close-sown crop may be
used in lieu of measuring the acreage of turn areas.
Sec. 718.110 Adjustments.
(a) The farm operator or other interested producer having excess
tobacco acreage (other than flue-cured or burley) may adjust an acreage
of the crop in order to avoid a marketing quota penalty if such person:
(1) Notifies the county committee of such election within 15
calendar days after the date of mailing of notice of excess acreage by
the county committee; and
(2) Pays the cost of a farm inspection to determine the adjusted
acreage prior to the date the farm visit is made.
(b) The farm operator may adjust an acreage of tobacco (except flue-
cured and burley) by disposing of such excess tobacco prior to the
marketing of any of the same kind of tobacco from the farm. The
disposition shall be witnessed by a representative of FSA and may take
place before, during, or after the harvesting of the same kind of
tobacco grown on the farm. However, no credit will be allowed toward the
disposition of excess acreage after the tobacco is harvested but prior
to marketing, unless the county committee determines that such tobacco
is representative of the entire crop from the farm of the kind of
tobacco involved.
Sec. 718.111 Notice of measured acreage.
Notice of measured acreage shall be provided by FSA and mailed to
the farm operator. This notice shall constitute notice to all parties
who have ownership, leasehold interest, or other, in such farm.
Sec. 718.112 Redetermination.
(a) A redetermination of crop acreage, appraised yield, or farm-
stored production for a farm may be initiated by the county committee,
State committee, or Deputy Administrator at any time. Redetermination
may be requested by a producer with an interest in the farm if they pay
the cost of the redetermination. The request must be submitted to FSA
within 15 calendar days after the date of the notice described in
Sec. Sec. 718.110 or 718.111, or within 5 calendar days after the
initial appraisal of the yield of a crop, or before the farm-stored
production is removed from storage. A redetermination shall be
undertaken in the manner prescribed by the Deputy Administrator. A
redetermination shall be used in lieu of any prior determination.
(b) The county committee shall refund the payment of the cost for a
redetermination when, because of an error in the initial determination:
(1) The appraised yield is changed by at least the larger of:
(i) Five percent or 5 pounds for cotton;
(ii) Five percent or 1 bushel for wheat, barley, oats, and rye; or
(iii) Five percent or 2 bushels for corn and grain sorghum; or
(2) The farm stored production is changed by at least the smaller of
3 percent or 600 bushels; or
(3) The acreage of the crop is:
(i) Changed by at least the larger of 3 percent or 0.5 acre; or
(ii) Considered to be within program requirements.
[[Page 37]]
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Bases
Source: 68 FR 16178, Apr. 3, 2003, unless otherwise noted.
Sec. 718.201 Farm constitution.
(a) In order to implement agency programs and monitor farmer
compliance with regulations, the agency must have records on what land
is being farmed by a particular producer. This is accomplished by a
determination of what land or groups of land `constitute' an individual
unit or farm. Land, which has been properly constituted under prior
regulations, shall remain so constituted until a reconstitution is
required under paragraph (c) of this section. The constitution and
identification of land as a farm for the first time and the subsequent
reconstitution of a farm made hereafter, shall include all land operated
by an individual entity or joint operation as a single farming unit
except that it shall not include:
(1) Land under separate ownership unless the owners agree in writing
and the labor, equipment, accounting system, and management are operated
in common by the operator but separate from other tracts;
(2) Land under a lease agreement of less than 1 year duration;
(3) Land in different counties when the tobacco allotments or quotas
established for the land involved cannot be transferred from one county
to another county by lease, sale, or owner. However, this paragraph
shall not apply if:
(i) All of the land is contiguous;
(ii) The land is located in counties that are contiguous in the same
State if:
(A) A burley or flue-cured tobacco quota is established for one or
more of the tracts; and
(B) The county committee determines that the tracts will be operated
as a single farming unit as set forth in Sec. 718.202; or
(iii) Because of a change in operation, tracts or parts of tracts
will be divided from the parent farm that currently has land in more
than one county, and there is no change in operation and ownership of
the remainder of the farm, or if there is a change in ownership, the new
owner agrees in writing to the constitution of the farm.
(4) Federally-owned land;
(5) State-owned wildlife lands unless the former owner has
possession of the land under a leasing agreement; and
(6) Land constituting a farm which is declared ineligible to be
enrolled in a program under the regulations governing the program; and
(7) For acreage base crops, land located in counties that are not
contiguous. However, this paragraph shall not apply if:
(i) Counties are divided by a river;
(ii) Counties do not touch because of a correction line adjustment;
or
(iii) The land is within 20 miles, by road, of other land that will
be a part of the farming unit.
(b)(1) If all land on the farm is physically located in one county,
the farm shall be administratively located in such county. If there is
no FSA office in the county or the county offices have been
consolidated, the farm shall be administratively located in the
contiguous county most convenient for the farm operator.
(2) If the land on the farm is located in more than one county, the
farm shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) A reconstitution of a farm either by division or by combination
shall be required whenever:
(1) A change has occurred in the operation of the land after the
last constitution or reconstitution and as a result of such change the
farm does not meet the conditions for constitution of a farm as set
forth in paragraph (a) of this section except that no reconstitution
shall be made if the county committee determines that the primary
purpose of the change in operation is to establish eligibility to
transfer allotments subject to sale or lease, or increase amount of
program benefits received;
[[Page 38]]
(2) The farm was not properly constituted the previous time;
(3) An owner requests in writing that the land no longer be included
in a farm composed of tracts under separate ownership;
(4) The county committee determines that the farm was reconstituted
on the basis of false information;
(5) The county committee determines that tracts included in a farm
are not being operated as a single farming unit.
(d) Reconstitution shall not be approved if the county committee
determines that the primary purpose of the reconstitution is to:
(1) Circumvent the provisions of part 12 of this title; or
(2) Circumvent any other chapter of this title.
Sec. 718.202 Determining the land constituting a farm.
(a) In determining the constitution of a farm, consideration shall
be given to provisions such as ownership and operation. For purposes of
this part, the following rules shall be applicable to determining what
land is to be included in a farm.
(b) A minor shall be considered to be the same owner or operator as
the parent, court-appointed guardian, or other person responsible for
the minor child, unless the parent or guardian has no interest in the
minor's farm or production from the farm, and the minor:
(1) Is a producer on a farm;
(2) Maintains a separate household from the parent or guardian;
(3) Personally carries out the farming activities; and
(4) Maintains a separate accounting for the farming operation.
(c) A minor shall not be considered to be the same owner or operator
as the parent or court-appointed guardian if the minor's interest in the
farming operation results from being the beneficiary of an irrevocable
trust and ownership of the property is vested in the trust or the minor.
(d) A life estate tenant shall be considered to be the owner of the
property for their life.
(e) A trust shall be considered to be an owner with the beneficiary
of the trust; except a trust can be considered a separate owner or
operator from the beneficiary, if the trust:
(1) Has a separate and distinct interest in the land or crop
involved;
(2) Exercises separate responsibility for the separate and distinct
interest; and
(3) Maintains funds and accounts separate from that of any other
individual or entity for the interest.
(f) The county committee shall require specific proof of ownership.
(g) Land owned by different persons of an immediate family living in
the same household and operated as a single farming unit shall be
considered as being under the same ownership in determining a farm.
(h) All land operated as a single unit and owned and operated by a
parent corporation and subsidiary corporations of which the parent
corporation owns more than 50 percent of the value of the outstanding
stock, or where the parent is owned and operated by subsidiary
corporations, shall be constituted as one farm.
Sec. 718.203 County committee action to reconstitute a farm.
Action to reconstitute a farm may be initiated by the county
committee, the farm owner, or the operator with the concurrence of the
owner of the farm. Any request for a farm reconstitution shall be filed
with the county committee.
Sec. 718.204 Reconstitution of allotments, quotas, and bases.
(a) Farms shall be reconstituted in accordance with this subpart
when it is determined that the land areas are not properly constituted
and, to the extent practicable, shall be based on the facts and
conditions existing at the time the change requiring the reconstitution
occurred.
(b) Reconstitutions of farms subject to a direct and counter-
cyclical program contract in accordance with part 1413 of this title
will be effective for the current year if initiated on or before August
1 or prior to the issuance of DCP payments for the farm or farms being
reconstituted.
(c) For tobacco farms, a reconstitution will be effective for the
current
[[Page 39]]
year for each crop for which the reconstitution is initiated before the
planting of such crop begins or would have begun.
(d) Notwithstanding the provisions of paragraph (c) of this section,
a reconstitution may be effective for the current year if the county
committee determines, and the State committee concurs, that the purpose
of the request for reconstitution is not to perpetrate a scheme or
device designed to evade the requirements governing programs found in
this title.
Sec. 718.205 Substantive change in farming operation, and changes in
related legal entities.
(a) Land that is properly constituted as a farm shall not be
reconstituted if:
(1) The reconstitution request is based upon the formation of a
newly established legal entity which owns or operates the farm or any
part of the farm and the county committee determines there is not a
substantive change in the farming operation;
(2) The county committee determines that the primary purpose of the
request for reconstitution is to:
(i) Obtain additional benefits under one or more commodity programs;
(ii) Avoid damages or penalties under a contract or statute;
(iii) Correct an erroneous acreage report; or
(iv) Circumvent any other program provisions. In addition, no farm
shall remain as constituted when the county committee determines that a
substantive change in the farming operation has occurred which would
require a reconstitution, except as otherwise approved by the State
committee with the concurrence of the Deputy Administrator.
(b) In determining whether a substantive change has occurred with
respect to a farming operation, the county committee shall consider
factors such as the composition of the legal entities having an interest
in the farming operation with respect to management, financing, and
accounting. The county committee shall also consider the use of land,
labor, and equipment available to the farming operations and any other
relevant factors that bear on the determination.
(c) Unless otherwise approved by the State committee with the
concurrence of the Deputy Administrator, when the county committee
determines that a corporation, trust, or other legal entity is formed
primarily for the purpose of obtaining additional benefits under the
commodity programs of this title, the farm shall remain as constituted,
or shall be reconstituted, as applicable, when the farm is owned or
operated by:
(1) A corporation having more than 50 percent of the stock owned by
members of the same family living in the same household;
(2) Corporations having more than 50 percent of the stock owned by
stockholders common to more than one corporation; or
(3) Trusts in which the beneficiaries and trustees are family
members living in the same household.
(d) Application of the provisions of paragraph (c) of this section
shall not limit or affect the application of paragraphs (a) and (b) of
this section.
Sec. 718.206 Determining farms, tracts, allotments, quotas, and bases
when reconstitution is made by division.
(a) The methods for dividing farms, tracts, allotments, quotas, and
bases in order of precedence, when applicable, are estate, designation
by landowner, contribution, cropland, DCP cropland, default, and
history. The proper method shall be determined on a crop by crop basis.
(b)(1) The estate method is the pro-rata distribution of allotments,
quotas, and bases for a parent farm among the heirs in settling an
estate. If the estate sells a tract of land before the farm is divided
among the heirs, the allotments, quotas, and bases for that tract shall
be determined according to paragraphs (c) through (h) of this section.
(2) Allotments, quotas, and bases shall be divided in accordance
with a will, but only if the county committee determines that the terms
of the will are such that a division can reasonably be made by the
estate method.
(3) If there is no will or the county committee determines that the
terms of a will are not clear as to the division of allotments, quotas,
and bases, such allotments, quotas, and bases shall be apportioned in
the manner agreed to in
[[Page 40]]
writing by all interested heirs or devisees who acquire an interest in
the property for which such allotments, quotas, and bases have been
established. An agreement by the administrator or executor shall not be
accepted in lieu of an agreement by the heirs or devisees.
(4) If allotments, quotas, and bases are not apportioned in
accordance with the provisions of paragraphs (b)(2) or (b)(3) of this
section, the allotments, quotas, and bases shall be divided pursuant to
paragraphs (d) through (h) of this section, as applicable.
(c)(1) If the ownership of a tract of land is transferred from a
parent farm, the transferring owner may request that the county
committee divide the allotments, quotas, and bases, including historical
acreage that has been double cropped, between the parent farm and the
transferred tract, or between the various tracts if the entire farm is
sold to two or more purchasers, in a manner designated by the owner of
the parent farm subject to the conditions set forth in paragraph (c)(3)
of this section.
(2) If the county committee determines that allotments, quotas, and
bases cannot be divided in the manner designated by the owner because of
the conditions set forth in paragraph (c)(3) of this section, the owner
shall be notified and permitted to revise the designation so as to meet
the conditions in paragraph (c)(3) of this section. If the owner does
not furnish a revised designation of allotments, quotas, and bases
within a reasonable time after such notification, or if the revised
designation does not meet the conditions of paragraph (c)(3) of this
section, the county committee will divide the allotments, quotas, and
bases in a pro-rata manner in accordance with paragraphs (d) through (h)
of this section.
(3) A landowner may designate a manner in which allotments, quotas,
and bases are divided according to this paragraph.
(i) The transferring owner and transferee shall file a signed
written memorandum of understanding of the designation with the county
committee before any CCC or FSA prescribed form, letter or contract
providing an allotment, base or quota is issued and before a subsequent
transfer of ownership of the land. The landowner shall designate the
allotments, quotas, and bases that shall be permanently reduced when the
sum of the allotments, quotas, and bases exceeds the cropland for the
farm.
(ii) Where the part of the farm from which the ownership is being
transferred was owned for a period of less than 3 years, the designation
by landowner method shall not be available with respect to the transfer
unless the county committee determines that the primary purpose of the
ownership transfer was other than to retain or to sell allotments,
quotas, or bases. In the absence of such a determination, and if the
farm contains land which has been owned for less than 3 years, that part
of the farm which has been owned for less than 3 years shall be
considered as a separate farm and the allotments, quotas, or bases,
shall be assigned to that part in accordance with paragraphs (d) through
(h) of this section. Such apportionment shall be made prior to any
designation of allotments, quotas, and bases with respect to the part
that has been owned for 3 years or more.
(4) The designation by landowner method is not applicable to crop
allotments or quotas which are restricted to transfer within the county
by lease, sale, or by owner, when the land on which the farm is located
is in two or more counties.
(5) The designation by landowner method may be applied at the
owner's request to land owned by any Indian Tribal Council which is
leased to two or more producers for the production of any crop of a
commodity for which an allotment, quota, or base has been established.
If the land is leased to two or more producers, an Indian Tribal Council
may request that the county committee divide the allotments, quotas, and
bases between the applicable tracts in the manner designated by the
Council. The use of this method shall not be subject to the conditions
of paragraph (c)(3) of this section.
(d)(1) The contribution method is the pro-rata distribution of a
parent farm's allotments and quotas to each tract as the tract
contributed to the allotments and quotas at the time of combination
[[Page 41]]
and may be used when the provisions of paragraphs (b) and (c) of this
section do not apply.
(2) The county committee determines and the State committee or a
representative thereof concurs, that the use of the contribution method
would not result in an equitable distribution of allotments and quotas,
considering available land, cultural operations, and changes in type of
farming.
(e) The cropland method is the pro-rata distribution of allotments
and quotas to separate tracts proportionately to the tract's
contribution to the cropland for the parent tract. This method shall be
used if paragraphs (b) through (d) of this section do not apply unless
the county committee determines that division by the history method
would result in more representative allotments and quotas than the
cropland method, taking into consideration the operation normally
carried out on each tract for the commodities produced on the farm.
(f)(1) The history method is the pro-rata distribution of allotments
and quotas to separate tracts on the basis of the operation normally
carried out on each tract of the parent farm. The county committee may
use the history method of dividing allotments and quotas when it:
(i) Determines that this method would result in a more accurate pro-
rata distribution of allotments and quotas based on actual contribution
of the tract to the totals of the parent farm than the cropland method
would; and
(ii) Obtains written consent of all owners to use the history
method.
(2) The county committee may waive the requirement for written
consent of the owners for dividing allotments and quotas if the county
committee determines that the use of the cropland method would result in
an inequitable division of the parent farm's allotments and quotas and
the use of the history method would provide more favorable results for
all owners.
(g) The DCP cropland method is the pro-rata distribution of bases to
the resulting tracts in the same proportion to the DCP cropland that
each resulting tract bears to the DCP cropland for the parent tract.
This method of division shall be used if paragraphs (b) and (c) of this
section do not apply.
(h) The default method is the separation of tracts from a farm with
each tract maintaining the bases attributed to the tract when the
reconstitution is initiated.
(i)(1) Allotments, quotas, and bases apportioned among the resulting
farms pursuant to paragraphs (d) through (h) of this section may be
increased or decreased with respect to a farm by as much as 10 percent
of the parent farm's allotment, quota, or base determined under such
subsections for the parent farm if:
(i) The owners agree in writing; and
(ii) The county committee determines the method used did not provide
an equitable distribution considering available land, cultural
operations, and changes in the type of farming conducted on the farm.
Any increase in an allotment, quota, or base with respect to a tract
pursuant to this paragraph shall be offset by a corresponding decrease
for such allotments, quotas or bases established with respect to the
other tracts which constitute the farm.
(2) Farm program payment yields calculated for the resulting farms
of a division may be increased or decreased if the county committee
determines the method used did not provide an equitable distribution
considering available land, cultural operations, and changes in the type
of farming conducted on the farm. Any increase in a farm program payment
yield on a resulting farm shall be offset by a corresponding decrease on
another resulting farm of the division.
(j) If a farm with burley tobacco quota is divided through
reconstitution and one or more of the farms resulting from the division
are apportioned less than 1,000 pounds of burley tobacco quota, the
owners of such farms shall take action as provided in part 723 of this
chapter to comply with the 1,000 pound minimum by July 1 of the current
year or the quota shall be dropped. Exceptions to this are farms
divided:
(1) Among family members;
(2) By the estate method; and
(3) When no sale or change in ownership of land occurs; or
(4) With one resulting farm receiving all of the quota.
[[Page 42]]
Sec. 718.207 Determining allotments, quotas, and bases when
reconstitution is made by combination.
When two or more farms or tracts are combined for a year, that
year's allotments, quotas, and bases, with respect to the combined farm
or tract, as required by applicable commodity regulations, shall not be
greater than the sum of the allotments, quotas, and bases for each of
the farms or tracts comprising the combination, subject to the
provisions of Sec. 718.204.
Subpart D_Equitable Relief From Ineligibility
Source: 67 FR 66307, Oct. 31, 2002, unless otherwise noted.
Sec. 718.301 Applicability.
(a) This subpart is applicable to programs administered by the Farm
Service Agency under chapters VII and XIV of this title, except for an
agricultural credit program carried out under the Consolidated Farm and
Rural Development Act (7 U.S.C. 1921 et seq.). Administration of this
subpart shall be under the supervision of the Deputy Administrator,
except that such authority shall not limit the exercise of authority
allowed State Executive Directors of the Farm Service agency as provided
for in Sec. 718.307.
(b) Sections 718.303, 718.304, and 718.307 do not apply where the
action for which relief is requested occurred before May 13, 2002. In
such cases, authority that was effective prior to May 13, 2002, may be
applied.
(c) Section 718.306 does not apply to a function performed under
either section 376 of the Consolidated Farm and Rural Development Act (7
U.S.C. 1921 et seq.), or a conservation program administered by the
Natural Resources Conservation Service of the United States Department
of Agriculture.
Sec. 718.302 Definitions and abbreviations.
In addition to the definitions provided in Sec. 718.2 of this part,
the following terms apply to this subpart:
Agricultural commodity means any agricultural commodity, food, feed,
fiber, or livestock that is subject to a covered program.
Covered program means a program specified in Sec. 718.301 of this
subpart.
FSA means the Farm Service Agency of the United States Department of
Agriculture.
OGC means the Office of the General Counsel of the United States
Department of Agriculture.
SED means, for activities within a particular state, the State
Executive Director of the United States Department of Agriculture, FSA,
for that state.
Sec. 718.303 Reliance on incorrect actions or information.
(a) Notwithstanding any other law, action or inaction by a
participant in a covered program that is to the detriment of the
participant, and that is based upon good faith reliance on the action or
advice of an authorized representative of a County or State FSA
Committee, may be approved by the Administrator, FSA or the Executive
Vice President, CCC, as applicable, or their designee, as meeting the
requirements of the program, and benefits may be extended or payments
made in accordance with Sec. 718.305.
(b) This section applies only to a participant who relied upon the
action of, or information provided by, a county or State FSA committee
or an authorized representative of such committee and the participant
acted, or failed to act, as a result of the Agency action or
information. This part does not apply to cases where the participant had
sufficient reason to know that the action or information upon which they
relied was improper or erroneous or where the participant acted in
reliance on their own misunderstanding or misinterpretation of program
provisions, notices or information.
Sec. 718.304 Failure to fully comply.
(a) Under a covered program, when the failure of a participant to
fully comply with the terms and conditions of a program authorized by
this chapter precludes the providing of payments or benefits, relief may
be authorized in accordance with Sec. 718.305 if
[[Page 43]]
the participant made a good faith effort to comply fully with the
requirements of the covered program.
(b) This section only applies to participants who are determined by
the FSA approval official to have made a good faith effort to comply
fully with the terms and conditions of the program and rendered
substantial performance.
Sec. 718.305 Forms of relief.
(a) The Administrator of FSA, Executive Vice President of CCC, or
their designee, may authorize a participant in a covered program to:
(1) Retain loans, payments, or other benefits received under the
covered program;
(2) Continue to receive loans, payments, and other benefits under
the covered program;
(3) Continue to participate, in whole or in part, under any contract
executed under the covered program;
(4) In the case of a conservation program, re-enroll all or part of
the land covered by the program; and
(5) Receive such other equitable relief as determined to be
appropriate.
(b) As a condition of receiving relief under this subpart, the
participant may be required to remedy their failure to meet the program
requirement, or mitigate its affects.
Sec. 718.306 Finality.
(a) A determination by a State or county FSA committee made on or
after October 13, 1994, becomes final and binding 90 days from the date
the application for benefits has been filed, and supporting
documentation required to be supplied by the producer as a condition for
eligibility for the particular program has been filed, unless one of the
following conditions exist:
(1) The participant has requested an administrative review of the
determination in accordance with part 780 of this chapter;
(2) The determination was based on misrepresentation, false
statement, fraud, or willful misconduct by or on behalf of the
participant;
(3) The determination was modified by the Administrator, FSA, or in
the case of CCC programs conducted under Chapter XIV of this title, the
Executive Vice President, CCC; or
(4) The participant had reason to know that the determination was
erroneous.
(b) Should an erroneous determination become final under the
provisions of this section, it shall only be effective through the year
in which the error was found and communicated to the participant.
Sec. 718.307 Special relief approval authority for State Executive
Directors.
(a) General nature of the special authority. Notwithstanding
provisions in this subpart providing supervision and relief authority to
other officials, an SED without further review by other officials (other
than the Secretary) may grant relief to a participant under the
provisions of Sec. Sec. 718.303 and 718.304 as if the SED were the
final arbiter within the agency of such matters so long as:
(1) The program matter with respect to which the relief is sought is
a program matter in a covered program which is operated within the State
under the control of the SED;
(2) The total amount of relief which will be provided to the person
(that is, to the individual or entity that applies for the relief) by
that SED under this special authority for errors during that year is
less than $20,000 (including in that calculation, any loan amount or
other benefit of any kind payable for that year and any other year);
(3) The total amount of such relief which has been previously
provided to the participant using this special authority for errors in
that year, as calculated above, is not more than $5,000;
(4) The total amount of loans, payments, and benefits of any kind
for which relief is provided to similarly situated participants by the
SED (or the SED's predecessor) for errors for any year under the
authority provided in this section, as calculated above, is not more
than $1,000,000.
(b) Report of the exercise of the power. A grant of relief shall be
considered to be under this section and subject to the special finality
provided in this section only if the SED grants the relief in writing
when granting the relief to the party who will receive the benefit of
[[Page 44]]
such relief and only if, in that document, the SED declares that they
are exercising that power. The SED must report the exercise of that
power to the Deputy Administrator so that a full accounting may be made
in keeping with the limitations of this section. Absent such a report,
relief will not be considered to have been made under this section.
(c) Additional limits on the authority. The authority provided under
this section does not extend to:
(1) The administration of payment limitations under part 1400 of
this chapter (Sec. Sec. 1001 to 1001F of 7 U.S.C. 1308 et seq.);
(2) The administration of payment limitations under a conservation
program administered by the Secretary; or
(3) Highly erodible land and wetland conservation requirements under
subtitles B or C of Title XII of the Food Security Act of 1985 (16
U.S.C. 3811 et seq.) as administered under 7 CFR part 12.
(d) Relief may not be provided by the SED under this section until a
written opinion or written acknowledgment is obtained from OGC that
grounds exist for determination that the program participant has, in
good faith, detrimentally relied on the guidance or actions of an
authorized FSA representative in accordance with the provisions of this
subpart, or that the producer otherwise failed, in good faith, to fully
comply with the requirements of the program and that the granting of the
relief is within the lawful authority of the SED.
(e) Relation to other authorities. The authority provided under this
section is in addition to any other applicable authority that may allow
relief. Generally, the SED may, without consultation other than with
OGC, decide all matters under $20,000 but those decisions shall not be
subject to modification within the Farm Service Agency to the extent
provided for under the rules of this section.
[[Page 45]]
SUBCHAPTER C_REGULATIONS FOR WAREHOUSES
PART 735_REGULATIONS FOR THE UNITED STATES WAREHOUSE ACT--Table of
Contents
Subpart A_General Provisions
Sec.
735.1 Applicability.
735.2 Administration.
735.3 Definitions.
735.4 Fees.
735.5 Penalties.
735.6 Suspension, revocation and liquidation.
735.7 Return of suspended or revoked certificates of licensing or
certificates of authorization.
735.8 Appeals.
735.9 Dispute resolution and arbitration of private parties.
735.10 Posting of certificates of licensing, certificates of
authorization or other USWA documents.
735.11 Lost or destroyed certificates of licensing, authorization or
agreements.
735.12 Safe keeping of records.
735.13 Information of violations.
735.14 Bonding and other financial assurance requirements.
Subpart B_Warehouse Licensing
735.100 Application.
735.101 Financial records and reporting requirements.
735.102 Financial assurance requirements.
735.103 Amendments to license.
735.104 Insurance requirements.
735.105 Care of agricultural products.
735.106 Excess storage and transferring of agricultural products.
735.107 Warehouse charges and tariffs.
735.108 Inspections and examinations of warehouses.
735.109 Disaster loss to be reported.
735.110 Conditions for delivery of agricultural products.
735.111 Fair treatment.
735.112 Terminal and futures contract markets
Subpart C_Inspectors, Samplers, Classifiers, and Weighers
735.200 Service licenses.
735.201 Agricultural product certificates; format.
735.202 Standards of grades for other agricultural products.
Subpart D_Warehouse Receipts
735.300 Warehouse receipt requirements.
735.301 Notification requirements.
735.302 Paper warehouse receipts.
735.303 Electronic warehouse receipts.
Subpart E_Electronic Providers
735.400 Administration.
735.401 Electronic warehouse receipt and USWA electronic document
providers.
735.402 Providers of other electronic documents.
735.403 Audits.
735.404 Schedule of charges and rates.
Authority: 7 U.S.C. 241 et seq.
Source: 67 FR 50763, Aug. 5, 2002, unless otherwise noted.
Subpart A_General Provisions
Sec. 735.1 Applicability.
(a) The regulations of this part set forth the terms and conditions
under which the Secretary of Agriculture through the Farm Service Agency
(FSA) will administer the United States Warehouse Act (USWA or the Act)
and sets forth the standards and the terms and conditions a participant
must meet for eligibility to act under the USWA. The extent the
provisions of this part are more restrictive, or more lenient, with
respect to the same activities governed by State law, the provisions of
this part shall prevail.
(b) Additional terms and conditions may be set forth in applicable
licensing agreements, provider agreements and other documents.
(c) Compliance with State laws relating to the warehousing, grading,
weighing, storing, merchandising or other similar activities is not
required with respect to activities engaged in by a warehouse operator
in a warehouse subject to a license issued in accordance with this part.
Sec. 735.2 Administration.
(a) FSA will administer all provisions and activities regulated
under the Act under the general direction and supervision of the FSA's
Deputy Administrator, Commodity Operations (DACO), or a designee.
(b) DACO may waive or modify the licensing or authorization
requirements or deadlines in cases where lateness or
[[Page 46]]
failure to meet such requirements does not adversely affect the
licensing or authorizations operated under the Act.
(c) DACO will provide affected licensees or authorized providers
with changes to their licensing or provider agreements before the
effective date.
(d) Licensing and authorization agreement updates will be available
at:
(1) DACO's USWA website, and
(2) The following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400 Independence Avenue, SW, Washington, DC
20250-0550.
Sec. 735.3 Definitions.
Words used in this part will be applicable to the activities
authorized by this part and will be used in all aspects of administering
the Act.
Access means the ability, when authorized, to read, change, and
transfer warehouse receipts or other applicable document information
retained in a central filing system.
Agricultural product means an agriculturally-produced product stored
or handled for the purposes of interstate or foreign commerce, including
a processed product of such agricultural product, as determined by DACO.
Central filing system (CFS) means an electronic system operated and
maintained by a provider, as a disinterested third party, authorized by
DACO where information relating to warehouse receipts, USWA documents
and other electronic documents is recorded and maintained in a
confidential and secure fashion independent of any outside influence or
bias in action or appearance.
Certificate means a USWA document that bears specific assurances
under the Act or warrants a person to operate or perform in a certain
manner and sets forth specific responsibilities, rights, and privileges
granted to the person under the Act.
Control of the facility means ultimate responsibility for the
operation and integrity of a facility by ownership, lease, or operating
agreement.
Department means the Department of Agriculture.
Electronic document means any document that is generated, sent,
received, or stored by electronic, optical, or similar means, including,
but not limited to, electronic data interchange, advanced communication
methods, electronic mail, telegram, telex, or telecopy.
Electronic warehouse receipt (EWR) means a warehouse receipt that is
authorized by DACO to be issued or transmitted under the Act in the form
of an electronic document.
Examiner means an individual designated by DACO for the purpose of
examining warehouses or for any other activities authorized under the
Act.
Financial assurance means the surety or other financial obligation
authorized by DACO that is a condition of receiving a license or
authorization under the Act.
Force majeure means severe weather conditions, fire, explosion,
flood, earthquake, insurrection, riot, strike, labor dispute, act of
civil or military, non-availability of transportation facilities, or any
other cause beyond the control of the warehouse operator or provider
that renders performance impossible.
Holder means a person that has possession in fact or by operation of
law of a warehouse receipt, USWA electronic document, or any electronic
document.
License means a license issued under the Act by DACO.
Licensing agreement means the document and any amendment or addenda
to such agreement executed by the warehouse operator and FSA specifying
licensing terms and conditions specific to the warehouse operator and
the agricultural product licensed to be stored.
Non-storage agricultural product means an agricultural product
received temporarily into a warehouse for conditioning, transferring or
assembling for shipment, or lots of an agricultural product moving
through a warehouse for current merchandising or milling use, against
which no warehouse receipts are issued and no storage charges assessed.
Official Standards of the United States means the standards of the
quality or condition for an agricultural product, fixed and established
under (7 U.S.C. 51) the United States Cotton Standards Act, (7 U.S.C.
71) the United States
[[Page 47]]
Grain Standards Act, (7 U.S.C. 1622) the Agricultural Marketing Act of
1946, or other applicable official United States Standards.
Other electronic documents (OED) means those electronic documents,
other than an EWR or USWA electronic document, that may be issued or
transferred, related to the shipment, payment or financing of
agricultural products that DACO has authorized for inclusion in a
provider's CFS.
Person means a person as set forth in 1 U.S.C. 1, a State; or a
political subdivision of a State.
Provider means a person authorized by DACO, as a disinterested third
party, which maintains one or more confidential and secure electronic
systems independent of any outside influence or bias in action or
appearance.
Provider agreement means the document and any amendment or addenda
to such agreement executed by the provider and FSA that sets forth the
provider's responsibilities concerning the provider's operation or
maintenance of a CFS.
Receipt means a warehouse receipt issued in accordance with the Act,
including an electronic warehouse receipt.
Schedule of charges means the tariff or uniform rate or amount
charged by an authorized person for specific services offered or
rendered under the Act.
Schedule of fees means the fees charged and assessed by FSA for
licensing, provider agreements or services furnished under the Act to
help defray the costs of administering the Act, and as such are shown in
a schedule of fees attached to the licensing or provider agreement.
Service license means the document and any amendment to such
document, issued under the Act by DACO to individuals certified
competent by the licensed warehouse operator to perform inspection,
sampling, grading classifying, or weighing services according to
established standards and procedures, set forth in Sec. 735.202, at the
specific warehouse license.
Stored agricultural products means all agricultural products
received into, stored within, or delivered out of the warehouse that are
not classified as a non-storage agricultural product under this part.
User means a person that uses a provider's CFS.
USWA electronic document means a USWA electronic document initiated
by DACO to be issued, transferred or transmitted that is not identified
as an EWR or OED in the appropriate licensing or provider agreement or
as determined by DACO.
Warehouse means a structure or other authorized storage facility, as
determined by DACO, in which any agricultural product may be stored or
handled for the purpose of interstate or foreign commerce.
Warehouse capacity means the maximum quantity of an agricultural
product that the warehouse will accommodate when stored in a manner
customary to the warehouse as determined by DACO.
Warehouse operator means a person lawfully engaged in the business
of storing or handling agricultural products.
Warehousing activities and practices means any legal, operational,
managerial or financial duty that a warehouse operator has regarding an
agricultural product.
Sec. 735.4 Fees.
(a) FSA will assess persons covered by the Act fees to cover the
costs of administering the Act.
(b) Warehouse operators, licensees, applicants, or providers must
pay:
(1) An annual fee as provided in the applicable licensing or
provider agreement; and
(2) Fees that FSA assesses for specific services, examinations and
audits, or as provided in the applicable licensing or provider
agreement.
(c) The schedule of fees showing the current fees or any annual fee
changes will be provided as an addendum to the applicable licensing or
provider agreement or/and:
(1) Will be available at DACO's USWA Web site, or
(2) May be requested at the following address: Deputy Administrator,
Commodity Operations, Farm Service Agency, United States Department of
[[Page 48]]
Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC
20250-0550.
(d) At the sole discretion of DACO, these fees may be waived.
Sec. 735.5 Penalties.
If a person fails to comply with any requirement of the Act, the
regulations set forth in this part or any applicable licensing or
provider agreement, DACO may assess, after an opportunity for a hearing
as provided in Sec. 735.8, a civil penalty:
(a) Of not more than $25,000 per violation, if an agricultural
product is not involved in the violation; or
(b) Of not more than 100 percent of the value of the agricultural
product, if an agricultural product is involved in the violation.
Sec. 735.6 Suspension, revocation and liquidation.
(a) DACO may, after an opportunity for a hearing as provided in
Sec. 735.8, suspend, revoke or liquidate any license or agreement
issued under the Act, for any violation of or failure to comply with any
provision of the Act, regulations or any applicable licensing or
provider agreement.
(b) The reasons for a suspension, revocation or liquidation under
this part include, but are not limited to:
(1) Failure to perform licensed or authorized services as provided
in this part or in the applicable licensing or provider agreement;
(2) Failure to maintain minimum financial requirements as provided
in the applicable licensing or provider agreement;
(3) Failure to submit a proper annual financial statement within the
established time period as provided in the applicable licensing or
provider agreement.
(4) Failure to maintain control of the warehouse or provider system.
(5) The warehouse operator or provider requests closure,
cancellation or liquidation. and
(6) Commission of fraud against FSA, any depositor, EWR or OED
holder or user, or any other function or operation under this part.
(c) FSA retains USWA's full authority over a warehouse operator or
provider for one year after such license revocation or provider
agreement termination or until satisfaction of any claims filed against
such warehouse operator or provider are resolved, whichever is later.
(d) Upon DACO's determination that continued operation of a
warehouse by a warehouse operator or an electronic provider system by a
provider is likely to result in probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users.
DACO may immediately suspend, close, or take control and begin an
orderly liquidation of such warehouse inventory or provider system data
as provided in this part or in the applicable licensing or provider
agreement.
(e) Any disputes involving probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users
will be determined by DACO for the benefit of the depositors, or EWR or
OED holders and users and such determinations shall be final.
Sec. 735.7 Return of suspended or revoked certificates of licensing
or certificates of authorization.
(a) When a license issued to a warehouse operator or service license
ends or is suspended or revoked by DACO, such certificates of licensing
and applicable licensing agreement and certificates of authorization
must be immediately surrendered and returned to DACO.
(b) When an agreement with a provider ends or is suspended or
revoked by DACO, such certificates of authorization and applicable
provider agreement must be immediately surrendered to DACO
Sec. 735.8 Appeals.
(a) Any person who is subject to an adverse determination made under
the Act may appeal the determination by filing a written request with
DACO at the following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC
20250-0550.
(b) Any person who believes that they have been adversely affected
by a
[[Page 49]]
determination under this part must seek review by DACO within twenty-
eight calendar days of such determination, unless provided with notice
by DACO of a different deadline.
(c) The appeal process set forth in this part is applicable to all
licensees and providers under any provision of the Act, regulations or
any applicable licensing agreement as follows:
(1) DACO will notify the person in writing of the nature of the
suspension, revocation or liquidation action;
(2) The person must notify DACO of any appeal of its action within
twenty-eight calendar days;
(3) The appeal and request must state whether:
(i) A hearing is requested,
(ii) The person will appear in person at such hearing, or
(iii) Such hearing will be held by telephone;
(4) DACO will provide the person a written acknowledgment of their
request to pursue an appeal;
(5) When a person requests an appeal and does not request a hearing
DACO will allow that person:
(i) To submit in writing the reasons why they believe DACO's
determination to be in error,
(ii) Twenty-eight calendar days from the receipt of the
acknowledgment to file any statements and documents in support of their
appeal, unless provided with notice by DACO of a different deadline, and
(iii) An additional fourteen calendar days to respond to any new
issues raised by DACO in response to the person's initial submission,
unless provided with notice by DACO of a different deadline;
(6) If the person requests to pursue an appeal and requests a
hearing, DACO will:
(i) Notify the person of the date of the hearing,
(ii) Determine the location of the hearing, when the person asks to
appear in person,
(iii) Notify the person of the location of the hearing,
(iv) Afford the person twenty-eight calendar days from the receipt
of the notification of the scheduling of the hearing to submit any
statements and documents in support of the appeal, unless provided with
notice by DACO of a different deadline, and
(v) Allow the person an additional fourteen calendar days from the
date of the hearing to submit any additional material, unless provided
with notice by DACO of a different deadline;
(7) Determinations of DACO will be final and no further appeal
within USDA will be available except as may be specified in the final
determination of DACO; and
(8) A person may not initiate an action in any court of competent
jurisdiction concerning a determination made under the Act prior to the
exhaustion of the appeal process set forth in this section.
Sec. 735.9 Dispute resolution and arbitration of private parties.
(a) A person may initiate legal action in any court of competent
jurisdiction concerning a claim for noncompliance or an unresolved
dispute with respect to activities authorized under the Act.
(b) Any claim for noncompliance or an unresolved dispute between a
warehouse operator or provider and another party with respect to
activities authorized under the Act may be resolved by the parties
through mutually agreed-upon arbitration procedures or as may be
prescribed in the applicable licensing or provider agreement. No
arbitration determination or award will affect DACO's authority under
the Act.
(c) In no case will USDA provide assistance or representation to
parties involved in an arbitration proceeding arising with respect to
activities authorized under the Act.
Sec. 735.10 Posting of certificates of licensing, certificates of
authorization or other USWA documents.
(a) The warehouse operator must post, in a conspicuous place in the
principal place where warehouse receipts are issued, any applicable
certificate furnished by DACO that the warehouse operator is an
authorized licensee under the Act.
(b) Immediately upon receipt of their certificate of service
licensing or any modification or extension thereof under the Act, the
licensee and warehouse operator must jointly post the
[[Page 50]]
same, and thereafter, except as otherwise provided in the regulations in
this part or as prescribed in the applicable licensing agreement, keep
such certificate of licensing conspicuously posted in the office where
all or most of the services are done, or in such place as may be
designated by DACO.
(c) The provider must post, in a conspicuous place in the principal
place of business, any applicable certificate of authorization furnished
by DACO that the provider is authorized to offer and provide specific
services under the Act.
Sec. 735.11 Lost or destroyed certificates of licensing,
authorization or agreements.
FSA will replace lost or destroyed certificates of licensing,
certificate of authorization or applicable agreement upon satisfactory
proof of loss or destruction. FSA will mark such certificates or
agreements as duplicates.
Sec. 735.12 Safe keeping of records.
Each warehouse operator or provider must take necessary precautions
to safeguard all records, either paper or electronic format, from
destruction.
Sec. 735.13 Information of violations.
Every person licensed or authorized under the Act must immediately
furnish DACO any information they may have indicating that any provision
of the Act or the regulations in this part has been violated.
Sec. 735.14 Bonding and other financial assurance requirements.
(a) As a condition of receiving a license or authorization under the
Act, the person applying for the license or authorization must execute
and file with DACO a bond or provide such other financial assurance as
DACO determines appropriate to secure the person's compliance with the
Act.
(b) Such bond or assurance must be for a period of not less than one
year and in such amount as required by DACO.
(c) Failure to provide for, or renew, a bond or a financial
assurance instrument will result in the immediate and automatic
revocation of the warehouse operator's license or provider's agreement.
(d) If DACO determines that a previously accepted bond or other
financial assurance is insufficient, DACO may immediately suspend or
revoke the license or authorization covered by the bond or other
financial assurance if the person that filed the bond or other financial
assurance does not provide such additional bond or other financial
assurance as DACO determines appropriate.
(e) To qualify as a suitable bond or other financial assurance, the
entity issuing the bond or other financial assurance must be subject to
service of process in lawsuits or legal actions on the bond or other
financial assurance in the State in which the warehouse is located.
Subpart B_Warehouse Licensing
Sec. 735.100 Application.
(a) An applicant for a license must submit to DACO information and
documents determined by DACO to be sufficient to conclude that the
applicant can comply with the provisions of the Act. Such documents must
include a current review or an audit-level financial statement prepared
according to generally accepted accounting standards as defined by the
American Institute of Certified Public Accountants. For any entity that
is not an individual, a document that establishes proof of the existence
of the entity, such as:
(1) For a partnership, an executed partnership agreement; and
(2) For a corporation:
(i) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(ii) Bylaws; and
(iii) Permits to do business; and
(3) For a limited partnership, an executed limited partnership
agreement; and
(4) For a limited liability company:
(i) Articles of organization or similar documents; and
(ii) Operating agreement or similar agreement.
(b) The warehouse facilities of an operator licensed under the Act
must, as determined by DACO, be:
[[Page 51]]
(1) Physically and operationally suitable for proper storage of the
applicable agricultural product or agricultural products specified in
the license;
(2) Operated according to generally accepted warehousing activities
and practices in the industry for the applicable agricultural product or
agricultural products stored in the facility; and
(3) Subject to the warehouse operator's control of the facility
including all contiguous storage space with respect to such facilities.
(c) As specified in individual licensing agreements, a warehouse
operator must:
(1) Meet the basic financial requirements determined by DACO; and
(2) Meet the net worth requirements determined by DACO;
(d) In order to obtain a license, the warehouse operator must
correct any exceptions made by the warehouse examiner at the time of the
original warehouse examination.
(e) DACO may issue a license for the storage of two or more
agricultural products in a single warehouse as provided in the
applicable licensing agreements. The amount of the bond or financial
assurance, net worth, and inspection and license fees will be determined
by DACO in accordance with the licensing agreements applicable to the
specific agricultural product, based upon the warehouses' total capacity
for storing such product, that would require:
(1) The largest bond or financial assurance;
(2) The greatest amount of net worth; and
(3) The greatest amount of fees.
Sec. 735.101 Financial records and reporting requirements.
(a) Warehouse operators must maintain complete, accurate, and
current financial records that must be available to DACO for review or
audit at DACO's request as may be prescribed in the applicable licensing
agreement.
(b) Warehouse operators must, annually, present a financial
statement as may be prescribed in the applicable licensing agreement to
DACO.
Sec. 735.102 Financial assurance requirements.
(a) Warehouse operators must file with DACO financial assurances
approved by DACO consisting of:
(1) A warehouse operator's bond; or
(2) Obligations that are unconditionally guaranteed as to both
interest and principal by the United States, in a sum equal at their par
value to the amount of the bond otherwise required to be furnished,
together with an irrevocable power of attorney authorizing DACO to
collect, sell, assign and transfer such obligations in case of any
default in the performance of any of the conditions required in the
licensing agreement; or
(3) An irrevocable letter of credit issued in the favor of DACO with
a term of not less than two years; or
(4) A certificate of participation in, and coverage by, an indemnity
or insurance fund as approved by DACO, established and maintained by a
State, backed by the full faith and credit of the applicable State,
which guarantees depositors of the licensed warehouse full
indemnification for the breach of any obligation of the licensed
warehouse operator under the terms of the Act. If a warehouse operator
files a bond or financial assurance in the form of a certification of
participation in an indemnity or insurance fund, the certification may
only be used to satisfy any deficiencies in assets above the minimum net
worth requirement as prescribed in the applicable licensing agreement. A
certificate of participation and coverage in this fund must be furnished
to DACO annually; or
(5) Other alternative instruments and forms of financial assurance
approved by DACO as may be prescribed in the applicable licensing
agreement.
(b) The warehouse operator may not withdraw obligations required
under this section until one year after license termination or until
satisfaction of any claims against the obligations, whichever is later.
Sec. 735.103 Amendments to license.
FSA will issue an amended license upon:
(a) Receipt of forms prescribed and furnished by DACO outlining the
requested changes to the license;
[[Page 52]]
(b) Payment of applicable licensing and examination fees;
(c) Receipt of bonding or other financial assurance if required in
the applicable licensing agreement; and
(d) Receipt of a report on the examination of the proposed
facilities pending inclusion or exclusion, if determined necessary by
DACO.
Sec. 735.104 Insurance requirements.
Each warehouse operator must comply fully with the terms of
insurance policies or contracts covering their licensed warehouse and
all products stored therein, and must not commit any acts, nor permit
others to do anything, that might impair or invalidate such insurance.
Sec. 735.105 Care of agricultural products.
Each warehouse operator must at all times, including during any
period of suspension of their license, exercise such care in regard to
stored and non-storage agricultural products in their custody as
required in the applicable licensing agreement.
Sec. 735.106 Excess storage and transferring of agricultural products.
(a) If at any time a warehouse operator stores an agricultural
product in a warehouse subject to a license issued under the Act in
excess of the warehouse capacity for which it is licensed, such
warehouse operator must immediately notify DACO of such excess storage
and the reason for the storage.
(b) A warehouse operator who desires to transfer stored agricultural
products to another warehouse may do so either by physical movement, by
other methods as may be provided in the applicable licensing agreement,
or as authorized by DACO.
Sec. 735.107 Warehouse charges and tariffs.
(a) A warehouse operator must not make any unreasonable or
exorbitant charge for services rendered.
(b) A warehouse operator must follow the terms and conditions for
each new or revised warehouse tariff or schedule of charges and rates as
prescribed in the applicable licensing agreement.
Sec. 735.108 Inspections and examinations of warehouses.
(a) Warehouse operators must permit any agent of the Department to
enter and inspect or examine, on any business day during the usual hours
of business, any licensed warehouse, the offices of the warehouse
operator, the books, records, papers, and accounts.
(b) Routine and special inspections and examinations will be
unannounced.
(c) Warehouse operators must provide safe access to all storage
facilities.
(d) Warehouse operators must inform any agent of the Department,
upon arrival, of any hazard.
(e) Agents of the Department must accomplish inspections and
examinations of warehouses in a manner that is efficient and cost-
effective without jeopardizing any inspection and examination integrity.
Sec. 735.109 Disaster loss to be reported.
If at any time a disaster or loss occurs at or within any licensed
warehouse, the warehouse operator must report immediately the occurrence
of the disaster or loss and the extent of damage, to DACO.
Sec. 735.110 Conditions for delivery of agricultural products.
(a) In the absence of a lawful excuse, a warehouse operator will,
without unnecessary delay, deliver the agricultural product stored or
handled in the warehouse on a demand made by:
(1) The holder of the warehouse receipt for the agricultural
product; or
(2) The person that deposited the agricultural product, if no
warehouse receipt has been issued.
(b) Prior to delivery of the agricultural product, payment of the
accrued charges associated with the storage or handling of the
agricultural product, including satisfaction of the warehouse operator's
lien, must be made if requested by the warehouse operator.
(c) When the holder of a warehouse receipt requests delivery of an
agricultural product covered by the warehouse receipt, the holder must
surrender the warehouse receipt to the warehouse operator before
obtaining the agricultural product.
(d) A warehouse operator must cancel each warehouse receipt
surrendered to
[[Page 53]]
the warehouse operator upon the delivery of the agricultural product for
which the warehouse receipt was issued and in accordance with the
applicable licensing agreement.
(e) For the purpose of this part, unless prevented from doing so by
force majeure, a warehouse operator will deliver or ship such
agricultural products stored or handled in their warehouse as prescribed
in the applicable licensing agreement.
Sec. 735.111 Fair treatment.
(a) Contingent upon the capacity of a warehouse, a warehouse
operator will deal in a fair and reasonable manner with persons storing,
or seeking to store, an agricultural product in the warehouse if the
agricultural product is:
(1) Of the kind, type, and quality customarily stored or handled in
the area in which the warehouse is located;
(2) Tendered to the warehouse operator in a suitable condition for
warehousing; and
(3) Tendered in a manner that is consistent with the ordinary and
usual course of business.
(b) Nothing in this section will prohibit a warehouse operator from
entering into an agreement with a depositor of an agricultural product
to allocate available storage space.
Sec. 735.112 Terminal and futures contract markets.
(a) DACO may issue service licenses to weigh-masters or their
deputies to perform services relating to warehouse receipts that are
deliverable in satisfaction of futures contracts in such contract
markets or as may be prescribed in any applicable licensing agreement.
(b) DACO may authorize a registrar of warehouse receipts issued for
an agricultural product in a warehouse licensed under the Act that
operates in any terminal market or in any futures contract market the
official designated by officials of the State in which such market is
located if such individual is not:
(1) An owner or employee of the licensed warehouse;
(2) The owner of, or an employee of the owner of, such agricultural
product deposited in any such licensed warehouse; or
(3) As may be prescribed in any applicable licensing or provider
agreement.
Subpart C_Inspectors, Samplers, Classifiers, and Weighers
Sec. 735.200 Service licenses.
(a) FSA may issue to a person a license for:
(1) Inspection of any agricultural product stored or handled in a
warehouse subject to the Act;
(2) Sampling of such an agricultural product;
(3) Classification of such an agricultural product according to
condition, grade, or other class and certify the condition, grade, or
other class of the agricultural product;
(4) Weighing of such an agricultural product and certify the weight
of the agricultural product; or
(5) Performing two or more services specified in paragraphs (a)(1),
(a)(2), (a)(3) or (a)(4) of this section.
(b) Each person seeking a license to perform activities described in
this section must submit an application on forms furnished by DACO that
contain, at a minimum, the following information:
(1) The name, location and license number of the warehouses where
the applicant would perform such activities;
(2) A statement from the warehouse operator that the applicant is
competent and authorized to perform such activities at specific
locations; and
(3) Evidence that the applicant is competent to inspect, sample,
classify, according to grade or weigh the agricultural product.
(c) The warehouse operator will promptly notify DACO in writing of
any changes with respect to persons authorized to perform such
activities at the licensed warehouse.
Sec. 735.201 Agricultural product certificates; format.
Each inspection, grade, class, weight or combination certificate
issued under the Act by a licensee to perform such services must be:
(a) In a format prescribed by DACO;
[[Page 54]]
(b) Issued and maintained in a consecutive order; and
(c) As prescribed in the applicable licensing or provider agreement
and authorized by DACO.
Sec. 735.202 Standards of grades for other agricultural products.
Official Standards of the United States for any kind, class or grade
of an agricultural product to be inspected must be used if such
standards exist. Until Official Standards of the United States are fixed
and established for the kind of agricultural product to be inspected,
the kind, class and grade of the agricultural product must be stated,
subject to the approval of DACO. If such standards do not exist for such
an agricultural product, the following will be used:
(a) State standards established in the State in which the warehouse
is located, (b) In the absence of any State standards, in accordance
with the standards, if any, adopted by the local board of trade, chamber
of commerce, or by the agricultural product trade generally in the
locality in which the warehouse is located, or
(c) In the absence of the standards set forth in paragraphs (a) and
(b) of this section, in accordance with any standards approved for the
purpose by DACO.
Subpart D_Warehouse Receipts
Sec. 735.300 Warehouse receipt requirements.
(a) Warehouse receipts may be:
(1) Negotiable or non-negotiable;
(2) For a single unit, multiple units, identity preserved or
commingled lot; and
(3) In a paper or electronic format that, besides complying with the
requirements of the Act, must be in a format as prescribed in the
applicable licensing or provider agreement and authorized by DACO.
(b) The warehouse operator must:
(1) At the request of a depositor of an agricultural product stored
or handled in a warehouse licensed under the Act, issue a warehouse
receipt to the depositor;
(2) Not issue a warehouse receipt for an agricultural product unless
the agricultural product is actually stored in their warehouse at the
time of issuance;
(3) Not issue a warehouse receipt until the quality, condition and
weight of such an agricultural product is ascertained by a licensed
inspector and weigher;
(4) Not directly or indirectly compel or attempt to compel the
depositor to request the issuance of a warehouse receipt omitting the
statement of quality or condition;
(5) Not issue an additional warehouse receipt under the Act for a
specific identity-preserved or commingled agricultural product lot (or
any portion thereof) if another warehouse receipt representing the same
specific identity-preserved or commingled lot of the agricultural
product is outstanding. No two warehouse receipts issued by a warehouse
operator may have the same warehouse receipt number or represent the
same agricultural product lot;
(6) When issuing a warehouse receipt and purposefully omitting any
information, notate the blank to show such intent;
(7) Not deliver any portion of an agricultural product for which
they have issued a negotiable warehouse receipt until the warehouse
receipt has been surrendered to them and canceled as prescribed in the
applicable licensing agreement;
(8) Not deliver more than 90% of the receipted quantity of an
agricultural product for which they have issued a non-negotiable
warehouse receipt until such warehouse receipt has been surrendered or
the depositor or the depositor's agent has provided a written order for
the agricultural product and the warehouse receipt surrendered upon
final delivery; and
(9) Deliver, upon proper presentation of a warehouse receipt for any
agricultural product, and payment or tender of all advances and charges,
to the depositor or lawful holder of such warehouse receipt the
agricultural product of such identity, quantity, grade and condition as
set forth in such warehouse receipt.
(c) In the case of a lost or destroyed warehouse receipt, a new
warehouse receipt upon the same terms, subject to the same conditions,
and bearing on its
[[Page 55]]
face the number and the date of the original warehouse receipt may be
issued.
Sec. 735.301 Notification requirements.
Warehouse operators must file with DACO the name and genuine
signature of each person authorized to sign warehouse receipts for the
licensed warehouse operator, and will promptly notify DACO of any
changes with respect to persons authorized to sign.
Sec. 735.302 Paper warehouse receipts.
Paper warehouse receipts must be issued as follows:
(a) On distinctive paper specified by DACO;
(b) Printed by a printer authorized by DACO; and
(c) Issued, identified and maintained in a consecutive order.
Sec. 735.303 Electronic warehouse receipts.
(a) Warehouse operators issuing EWR under the Act may issue EWR's
for the agricultural product stored in their warehouse. Warehouse
operators issuing EWR's under the Act must:
(1) Only issue EWR's through one FSA-authorized provider annually;
(2) Inform DACO of the identity of their provider, when they are a
first time user of EWR's, 60 calendar days in advance of issuing an EWR
through that provider. DACO may waive or modify this 60-day requirement
as set forth in Sec. 735.2(b);
(3) Before issuing an EWR, request and receive from FSA a range of
consecutive warehouse receipt numbers that the warehouse will use
consecutively for issuing their EWR's;
(4) When using an authorized provider, issue and cancel all
warehouse receipts as EWR's;
(5) Cancel an EWR only when they are the holder of the warehouse
receipt;
(6) Be the holder of an EWR to correct information contained within
any required data field;
(7) Receive written authorization from FSA at least 30 calendar days
before changing providers. Upon authorization, they may request their
current provider to transfer their EWR data from its Central Filing
System (CFS) to the CFS of the authorized provider whom they select; and
(8) Notify all holders of EWR's by inclusion in the CFS at least 30
calendar days before changing providers, unless otherwise required or
allowed by FSA.
(b) An EWR establishes the same rights and obligations with respect
to an agricultural product as a paper warehouse receipt and possesses
the following attributes:
(1) The holder of an EWR will be entitled to the same rights and
privileges as the holder of a paper warehouse receipt.
(2) Only the current holder of the EWR may transfer the EWR to a new
holder.
(3) The identity of the holder must be confidential and included as
information for every EWR.
(4) Only one person may be designated as the holder of an EWR at any
one time.
(5) A warehouse operator may not issue an EWR on a specific
identity-preserved or commingled lot of agricultural product or any
portion thereof while another valid warehouse receipt representing the
same specific identity-preserved or commingled lot of agricultural
product remains not canceled. No two warehouse receipts issued by a
warehouse operator may have the same warehouse receipt number or
represent the same agricultural product lot.
(6) An EWR may only be issued to replace a paper warehouse receipt
if requested by the current holder of the paper warehouse receipt.
(7) Holders and warehouse operators may authorize any other user of
their provider or the provider itself to act on their behalf with
respect to their activities with this provider. This authorization must
be in writing, and acknowledged and retained by the warehouse operator
and provider.
(c) A warehouse operator not licensed under the Act may, at the
option of the warehouse operator, issue EWRs in accordance with this
subpart, except this option does not apply to a warehouse operator that
is licensed under State law to store agricultural products in a
warehouse if the warehouse operator elects to issue an EWR under State
law.
[[Page 56]]
Subpart E_Electronic Providers
Sec. 735.400 Administration.
This subpart sets forth the regulations under which DACO may
authorize one or more electronic systems under which:
(a) Electronic documents relating to the shipment, payment, and
financing of the sale of agricultural products may be issued or
transferred; or
(b) Electronic receipts may be issued and transferred.
Sec. 735.401 Electronic warehouse receipt and USWA electronic
document providers.
(a) To establish a USWA-authorized system to issue and transfer
EWR's and USWA electronic documents, each applicant must submit to DACO
information and documents determined by DACO to be sufficient to
determine that the applicant can comply with the provisions of the Act.
Each provider operating pursuant to this section must meet the following
requirements:
(1) Have and maintain a net worth as specified in the applicable
provider agreement;
(2) Maintain two insurance policies; one for ``errors and
omissions'' and another for ``fraud and dishonesty.'' Each policy's
minimum coverage and maximum deductible amounts and applicability of
other forms of financial assurances as set forth in Sec. 735.14 will be
prescribed in the applicable provider agreement. Each policy must
contain a clause requiring written notification to FSA 30 days prior to
cancellation or as prescribed by FSA;
(3) Submit a current review or an audit level financial statement
prepared according to generally accepted accounting standards as defined
by the American Institute of Certified Public Accountants;
(4) For any entity that is not an individual, a document that
establishes proof of the existence, such as:
(i) For a partnership, an executed partnership agreement; and
(ii) For a corporation:
(A) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(B) Bylaws; and
(C) Permits to do business; and
(iii) For a limited partnership, an executed limited partnership
agreement; and
(iv) For a limited liability company:
(A) Articles of organization or similar documents; and
(B) Operating agreement or similar agreement.
(5) Meet any additional financial requirements as set forth in the
applicable provider agreement;
(6) Pay user fees annually to FSA, as set and announced annually by
FSA prior to April 1 of each calendar year; and
(7) Operate a CFS as a neutral third party in a confidential and
secure fashion independent of any outside influence or bias in action or
appearance.
(b) The provider agreement will contain, but not be limited to,
these basic elements:
(1) Scope of authority;
(2) Minimum document and warehouse receipt requirements;
(3) Liability;
(4) Transfer of records protocol;
(5) Records;
(6) Conflict of interest requirements;
(7) USDA common electronic information requirements;
(8) Financial requirements
(9) Terms of insurance policies or assurances;
(10) Provider's integrity statement;
(11) Security audits; and
(12) Submission, authorization, approval, use and retention of
documents.
(c) DACO may suspend or terminate a provider's agreement for cause
at any time.
(1) Hearings and appeals will be conducted in accordance with
procedures as set forth in Sec. Sec. 735.6 and 735.8.
(2) Suspended or terminated providers may not execute any function
pertaining to USDA, USWA documents, or USWA or State EWR's during the
pendency of any appeal or subsequent to this appeal if the appeal is
denied, except as authorized by DACO.
(3) The provider or DACO may terminate the provider agreement
without cause solely by giving the other party written notice 60
calendar days prior to termination.
(d) Each provider agreement will be automatically renewed annually
on
[[Page 57]]
April 30th as long as the provider complies with the terms contained in
the provider agreement, the regulations in this subpart, and the Act.
Sec. 735.402 Providers of other electronic documents.
(a) To establish a USWA-authorized system to issue and transfer OED,
each applicant must submit to DACO information and documents determined
by DACO to be sufficient to determine that the applicant can comply with
the provisions of the Act. Each provider operating pursuant to this
section must meet the following requirements:
(1) Have and maintain a net worth as specified in the applicable
provider agreement;
(2) Maintain two insurance policies; one for 'errors and omissions'
and another for 'fraud and dishonesty'. Each policy's minimum coverage
and maximum deductible amounts and applicability of other forms of
financial assurances as set forth in Sec. 735.14 will be prescribed in
the applicable provider agreement. Each policy must contain a clause
requiring written notification to FSA 30 days prior to cancellation or
as prescribed by FSA;
(3) Submit a current review or an audit level financial statement
prepared according to generally accepted accounting standards as defined
by the American Institute of Certified Public Accountants;
(4) For any entity that is not an individual, a document that
establishes proof of the existence, such as:
(i) For a partnership, an executed partnership agreement; and
(ii) For a corporation:
(A) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(B) Bylaws; and
(C) Permits to do business; and
(iii) For a limited partnership, an executed limited partnership
agreement; and
(iv) For a limited liability company:
(A) Articles of organization or similar documents; and
(B) Operating agreement or similar agreement.
(5) Meet any additional financial requirements as set forth in the
applicable provider agreement;
(6) Pay user fees annually to FSA, as set and announced annually by
FSA prior to April 1 of each calendar year; and
(7) Operate a CFS as a neutral third party in a confidential and
secure fashion independent of any outside influence or bias in action or
appearance.
(b) The provider agreement will contain, but not be limited to,
these basic elements:
(1) Scope of authority;
(2) Minimum document and warehouse receipt requirements;
(3) Liability;
(4) Transfer of records protocol;
(5) Records;
(6) Conflict of interest requirements;
(7) USDA common electronic information requirements;
(8) Financial requirements;
(9) Terms of insurance policies or assurances;
(10) Provider's integrity statement;
(11) Security audits; and
(12) Submission, authorization, approval, use and retention of
documents.
(c) DACO may suspend or terminate a provider's agreement for cause
at any time.
(1) Hearings and appeals will be conducted in accordance with
procedures as set forth in Sec. Sec. 735.6 and 735.8.
(2) Suspended or terminated providers may not execute any function
pertaining to USDA, USWA documents, USWA or State EWR's or OED's during
the pendency of any appeal or subsequent to this appeal if the appeal is
denied, except as authorized by DACO.
(d) Each provider agreement will be automatically renewed annually
on April 30th as long as the provider complies with the terms contained
in the provider agreement, the regulations in this subpart, and the Act.
(e) In addition to audits prescribed in this section the provider
must submit a copy of any audit, examination or investigative report
prepared by any Federal regulatory agency with respect to the provider
including agencies such as, but not limited to, the Comptroller of the
Currency, Department of the Treasury, the Federal Trade Commission, and
the Commodity Futures Trading Commission.
[[Page 58]]
Sec. 735.403 Audits.
(a) No later than 120 calendar days following the end of the
provider's fiscal year, the provider authorized under Sec. Sec. 735.401
and 735.402 must submit to FSA an annual audit level financial statement
and an electronic data processing audit that meets the minimum
requirements as provided in the applicable provider agreement. The
electronic data processing audit will be used by DACO to evaluate
current computer operations, security, disaster recovery capabilities of
the system, and compatibility with other systems authorized by DACO.
(b) Each provider will grant the Department unlimited, free access
at any time to all records under the provider's control relating to
activities conducted under this part and as specified in the applicable
provider agreement.
Sec. 735.404 Schedule of charges and rates.
(a) A provider authorized under Sec. Sec. 735.401 or 735.402 must
furnish FSA with copies of its current schedule of charges and rates for
all services as they become effective.
(b) Charges and rates assessed any user by the provider must be in
effect for a minimum period of one year.
(c) Providers must furnish FSA and all users a 60-calendar day
advance notice of their intent to change any charges and rates.
PART 743 [RESERVED]
[[Page 59]]
SUBCHAPTER D_SPECIAL PROGRAMS
PART 750_SOIL BANK--Table of Contents
Editorial Note: Part 750 (formerly part 485 of title 6), published
at 21 FR 6289, Aug. 22, 1956, and redesignated at 26 FR 5788, June 29,
1961, is no longer carried in the Code of Federal Regulations. This
deletion does not relieve any person of any obligation or liability
incurred under these regulations, nor deprive any person of any rights
received or accrued under the provisions of this part. For Federal
Register citations affecting this part, see the ``List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
PART 760_INDEMNITY PAYMENT PROGRAMS--Table of Contents
Subpart A_Dairy Indemnity Payment Program
Program Operations
Sec.
760.1 Administration.
760.2 Definitions.
Payments to Dairy Farmers for Milk
760.3 Indemnity payments on milk.
760.4 Normal marketings of milk.
760.5 Fair market value of milk.
760.6 Information to be furnished.
760.7 Other requirements for affected farmers.
760.8 Application for payments for milk.
760.9 Other legal recourse.
Payments to Manufacturers Affected by Pesticides
760.20 Payments to manufacturers of dairy products.
760.21 Application for payments by manufacturers.
760.22 Information to be furnished by manufacturer.
760.23 Other requirements for manufacturers.
General Provisions
760.24 Limitation of authority.
760.25 Estates and trusts; minors.
760.26 Appeals.
760.27 Setoffs.
760.28 Overdisbursement.
760.29 Death, incompetency, or disappearance.
760.30 Records and inspection thereof.
760.31 Assignment.
760.32 Instructions and forms.
760.33 Availability of funds.
760.34 Paperwork Reduction Act assigned numbers.
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
760.101 Applicability.
760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
760.103 Eligible producer.
760.104 Risk management purchase requirements.
760.105 Waiver for certain crop years; buy-in.
760.106 Equitable relief.
760.107 Socially disadvantaged, limited resource, or beginning farmer or
rancher.
760.108 Payment limitation.
760.109 Misrepresentation and scheme or device.
760.110 Appeals.
760.111 Offsets, assignments, and debt settlement.
760.112 Records and inspections.
760.113 Refunds; joint and several liability.
760.114 Minors.
760.115 Deceased individuals or dissolved entities.
760.116 Miscellaneous.
Subpart C_Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program
760.201 Applicability.
760.202 Definitions.
760.203 Eligible losses, adverse weather, and other loss conditions.
760.204 Eligible livestock, honeybees, and farm-raised fish.
760.205 Eligible producers, owners, and contract growers.
760.206 Notice of loss and application process.
760.207 Notice of loss and application period.
760.208 Availability of funds.
760.209 Livestock payment calculations.
760.210 Honeybee payment calculations.
760.211 Farm-raised fish payment calculations.
Subpart D_Livestock Forage Disaster Program
760.301 Applicability.
760.302 Definitions.
760.303 Eligible livestock producer.
760.304 Covered livestock.
760.305 Eligible grazing losses.
760.306 Application for payment.
760.307 Payment calculation.
[[Page 60]]
Subpart E_Livestock Indemnity Program
760.401 Applicability.
760.402 Definitions.
760.403 Eligible owners and contract growers.
760.404 Eligible livestock.
760.405 Application process.
760.406 Payment calculation.
Subpart F [Reserved]
Subpart G_Supplemental Revenue Assistance Payments Program
760.601 Applicability.
760.602 Definitions.
760.610 Participant eligibility.
760.611 Qualifying losses, eligible causes and types of loss.
760.613 De minimis exception.
760.614 Lack of access.
760.620 Time and method of application and certification of interests.
760.621 Requirement to report acreage and production.
760.622 Incorrect or false producer production evidence.
760.631 SURE guarantee calculation.
760.632 Payment acres.
760.633 2008 SURE guarantee calculation.
760.634 SURE guarantee for value loss crops.
760.635 Total farm revenue.
760.636 Expected revenue.
760.637 Determination of production.
760.638 Determination of SURE yield.
760.640 National average market price.
760.641 Adjustments made to NAMP to reflect loss of quality.
760.650 Calculating SURE.
Subpart H [Reserved]
Subpart I_2005 2007 Crop Disaster Program
760.800 Applicability.
760.801 Administration.
760.802 Definitions.
760.803 Eligibility.
760.804 Time and method of application.
760.805 Limitations on payments and other benefits.
760.806 Crop eligibility requirements.
760.807 Miscellaneous provisions.
760.808 General provisions.
760.809 Eligible damaging conditions.
760.810 Qualifying 2005, 2006, or 2007 quantity crop losses.
760.811 Rates and yields; calculating payments.
760.812 Production losses; participant responsibility.
760.813 Determination of production.
760.814 Calculation of acreage for crop losses other than prevented
planted.
760.815 Calculation of prevented planted acreage.
760.816 Value loss crops.
760.817 Quality losses for 2005, 2006, and 2007 crops.
760.818 Marketing contracts.
760.819 Misrepresentation, scheme, or device.
760.820 Offsets, assignments, and debt settlement.
760.821 Compliance with highly erodible land and wetland conservation.
Subpart J_2005 2007 Livestock Indemnity Program
760.900 Administration.
760.901 Applicability.
760.902 Eligible counties and disaster periods.
760.903 Definitions.
760.904 Limitations on payments and other benefits.
760.905 Eligible owners and contract growers.
760.906 Eligible livestock.
760.907 Application process.
760.908 Deceased individuals or dissolved entities.
760.909 Payment calculation.
760.910 Appeals.
760.911 Offsets, assignments, and debt settlement.
760.912 Records and inspections.
760.913 Refunds; joint and several liability.
Subpart K_General Provisions for 2005 2007 Livestock Compensation and
Catfish Grant Programs
760.1000 Applicability.
760.1001 Eligible counties, disaster events, and disaster periods.
760.1002 Definitions.
760.1003 Limitations on payments and other benefits.
Subpart L_2005 2007 Livestock Compensation Program
760.1100 Applicability.
760.1101 Administration.
760.1102 Definitions.
760.1103 Eligible livestock and producers.
760.1104 Application for payment.
760.1105 Application process.
760.1106 Payment calculation.
760.1107 Appeals.
760.1108 Offsets, assignments, and debt settlement.
760.1109 Recordkeeping and inspections.
760.1110 Refunds; joint and several liability.
Subpart M_2005 2007 Catfish Grant Program
760.1200 Administration.
760.1201 Application for payment.
760.1202 Eligible producers.
[[Page 61]]
760.1203 Payment calculation.
Subpart N_Dairy Economic Loss Assistance Payment Program
760.1301 Administration.
760.1302 Definitions and acronyms.
760.1303 Requesting benefits.
760.1304 Eligibility.
760.1305 Proof of production.
760.1306 Availability of funds.
760.1307 Dairy operation payment quantity.
760.1308 Payment rate.
760.1309 Appeals.
760.1310 Misrepresentation and scheme or device.
760.1311 Death, incompetence, or disappearance.
760.1312 Maintaining records.
760.1313 Refunds; joint and several liability.
760.1314 Miscellaneous provisions.
Authority: 7 U.S.C. 4501, 7 U.S.C. 1531, 16 U.S.C. 3801, note, and
19 U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title IX,
Pub. L. 110-28, 121 Stat. 211; and Sec. 748, Pub. L. 111-80, 123 Stat.
2131.
Subpart A_Dairy Indemnity Payment Program
Authority: Pub. L. 106-387, 114 Stat. 1549, and Pub. L. 107-76, 115
Stat. 704.
Source: 43 FR 10535, Mar. 14, 1978, unless otherwise noted.
Program Operations
Sec. 760.1 Administration.
This indemnity payment program will be carried out by FSA under the
direction and supervision of the Deputy Administrator. In the field, the
program will be administered by the State and county committees.
Sec. 760.2 Definitions.
For purposes of this subject, the following terms shall have the
meanings specified:
(a) Secretary means the Secretary of Agriculture of the United
States or any officer or employee of the U.S. Department of Agriculture
to whom he has delegated, or to whom he may hereafter delegate,
authority to act in his stead.
(b) FSA means the Farm Service Agency, U.S. Department of
Agriculture.
(c) Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA.
(d) State committee means the FSA State committee.
(e) County committee means the FSA county committee.
(f) Pesticide means an economic poison which was registered pursuant
to the provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C. 135 through 135k), and approved for use by the
Federal Government.
(g) Chemicals or Toxic Substances means any chemical substance or
mixture as defined in the Toxic Substances Control Act (15 U.S.C. 2602).
(h) Nuclear Radiation or Fallout means contamination from nuclear
radiation or fallout from any source.
(i) Violating Substance means one or more of the items defined in
paragraphs (f), (g), and (h) of this section.
(j) Public agency means any Federal, State or local public
regulatory agency.
(k) Affected farmer means a person who produces whole milk which is
removed from the commerical market any time from:
(1) Pursuant to the direction of a public agency because of the
detection of pesticide residues in such whole milk by tests made by a
public agency or under a testing program deemed adequate for the purpose
by a public agency, or
(2) Pursuant to the direction of a public agency because of the
detection of other residues of chemicals or toxic substances residues,
or contamination from nuclear radiation or fallout in such whole milk by
tests made by a public agency or under a testing program deemed adequate
for the purpose by a public agency.
(l) Affected manufacturer means a person who manufactures dairy
products which are removed from the commercial market pursuant to the
direction of a public agency because of the detection of pesticide
residue in such dairy products by tests made by a public agency or under
a testing program deemed adequate for the purpose by a public agency.
(m) Milk handler means the marketing agency to or through which the
[[Page 62]]
affected dairy farmer marketed his whole milk at the time he was
directed by the public agency to remove his whole milk from the
commercial market.
(n) Person means an individual, partnership, association,
corporation, trust, estate, or other legal entity.
(o) Application period means any period during which an affected
farmer's whole milk is removed from the commercial market pursuant to
direction of a public agency for a reason specified in paragraph (k) of
this section and for which application for payment is made.
(p) Pay period means (1) in the case of an affected farmer who
markets his whole milk through a milk handler, the period used by the
milk handler in settling with the affected farmer for his whole milk,
usually biweekly or monthly, or (2) in the case of an affected farmer
whose commercial market consists of direct retail sales to consumers, a
calendar month.
(q) Whole milk means milk as it is produced by cows.
(r) Commercial market means (1) the market to which the affected
farmer normally delivers his whole milk and from which it was removed
because of detection therein of a residue of a violating substance(s) or
(2) the market to which the affected manufacturer normally delivers his
dairy products and from which they were removed because of detection
therein of pesticide residue.
(s) Removed from the commercial market means (1) produced and
destroyed or fed to livestock, (2) produced and delivered to a handler
who destroyed it or disposed of it as salvage (such as separating whole
milk, destroying the fat, and drying the skim milk), or (3) produced and
otherwise diverted to other than the commercial market.
(t) Payment subject to refund means a payment which is made by a
milk handler to an affected farmer, and which such farmer is obligated
to refund to the milk handler.
(u) Base period means the calendar month or 4-week period
immediately preceding removal of milk from the market.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979; 52 FR 17935, May 13, 1987; 53 FR 44001, Nov. 1, 1988; 56 FR
1358, Jan. 14, 1991; 61 FR 18485, Apr. 26, 1996; 71 FR 27190, May 10,
2006]
Payments to Dairy Farmers for Milk
Sec. 760.3 Indemnity payments on milk.
An indemnity payment for milk may be made to an affected farmer who
is determined by the county committee to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of his normal marketings for the application period, as determined
in accordance with Sec. Sec. 760.4 and 760.5, less (a) any amount he
received for whole milk marketed during the applications period, and (b)
any payment not subject to refund which he received from a milk handler
with respect to whole milk removed from the commercial market during the
application period.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.4 Normal marketings of milk.
(a) The county committee shall determine the affected farmer's
normal marketings which, for the purposes of this subpart, shall be the
sum of the quantities of whole milk which such farmer would have sold in
the commercial market in each of the pay periods in the application
period but for the removal of his whole milk from the commercial market
because of the detection of a residue of a violating substance.
(b) Normal marketings for each pay period are based on the average
daily production during the base period.
(c) Normal marketings determined in paragraph (b) of this section
are adjusted for any change in the daily average number of cows milked
during each pay period the milk is off the market compared with the
average number of cows milked daily during the base period.
(d) If only a portion of a pay period falls within the application
period, normal marketings for such pay period shall be reduced so that
they represent
[[Page 63]]
only that part of such pay period which is within the application
period.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979]
Sec. 760.5 Fair market value of milk.
(a) The county committee shall determine the fair market value of
the affected farmer's normal marketings, which, for the purposes of this
subpart, shall be the sum of the net proceeds such farmer would have
received for his normal marketings in each of the pay periods in the
application period.
(b) The county committee shall determine the net proceeds the
affected farmer would have received in each of the pay periods in the
application period (1) in the case of an affected farmer who markets his
whole milk through a milk handler, by multiplying the affected farmer's
normal marketings for each such pay period by the average net price per
hundred-weight of whole milk paid during the pay period by such farmer's
milk handler in the same area for whole milk similar in quality and
butterfat test to that marketed by the affected farmer in the base
period used to determine his normal marketings, or (2) in the case of an
affected farmer whose commercial market consists of direct retail sales
to consumers, by multiplying the affected farmer's normal marketings for
each such pay period by the average net price per hundredweight of whole
milk, as determined by the county committee, which other producers in
the same area who marketed their whole milk through milk handlers
received for whole milk similar in quality and butterfat test to that
marketed by the affected farmer during the base period used to determine
his normal marketings.
(c) In determining the net price for whole milk, the county
committee shall deduct from the gross price therefor any transportation,
administrative, and other costs of marketing which it determines are
normally incurred by the affected farmer but which were not incurred
because of the removal of his whole milk from the commercial market.
Sec. 760.6 Information to be furnished.
The affected farmer shall furnish to the county committee complete
and accurate information sufficient to enable the county committee or
the Deputy Administrator to make the determinations required in this
subpart. Such information shall include, but is not limited to:
(a) A copy of the notice from, or other evidence of action by, the
public agency which resulted in the removal of the affected farmer's
whole milk from the commercial market.
(b) The specific name of the violating substance causing the removal
of his whole milk from the commercial market, if not included in the
notice or other evidence of action furnished under paragraph (a) of this
section.
(c) The quantity and butterfat test of whole milk produced and
marketed during the base period. This information must be a certified
statement from the affected farmer's milk handler or any other evidence
the county committee accepts as an accurate record of milk production
and butterfat tests during the base period.
(d) The average number of cows milked during the base period and
during each pay period in the application.
(e) If the affected farmer markets his whole milk through a milk
handler, a statement from the milk handler showing, for each pay period
in the application period, the average price per hundred-weight of whole
milk similar in quality to that marketed by the affected farmer during
the base period used to determine his normal marketings. If the milk
handler has information as to the transportation, administrative, and
other costs of marketing which are normally incurred by producers who
market through the milk handler but which the affected farmer did not
incur because of removal of his whole milk from the market, the average
price stated by the milk handler shall be the average gross price paid
producers less any such costs. If the milk handler does not have such
information, the affected farmer shall furnish a statement setting forth
such costs, if any.
(f) The amount of proceeds, if any, received by the affected farmer
from the
[[Page 64]]
marketing of whole milk produced during the application period.
(g) The amount of any payments not subject to refund made to the
affected farmer by the milk handler with respect to the whole milk
produced during the application period and remove from the commercial
market.
(h) To the extent that such information is available to the affected
farmer, the name of any pesticide, chemical, or toxic substance used on
the farm within 24 months prior to the application period, the use made
of the pesticide, chemical, or toxic substance, the approximate date of
such use, and the name of the manufacturer and the registration number,
if any, on the label on the container of the pesticide, chemical, or
toxic substance.
(i) To the extent possible, the source of the pesticide, chemical,
or toxic substance that caused the contamination of the whole milk, and
the results of any laboratory tests on the feed supply.
(j) Such other information as the county committee may request to
enable the county committee or the Deputy Administrator to make the
determinations required in this subpart.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, June
22, 1979]
Sec. 760.7 Other requirements for affected farmers.
An indemnity payment for milk may be made under this subpart to an
affected farmer only under the following conditions:
(a) If the pesticide, chemical, or toxic substance, contaminating
the milk was used by the affected farmer, he established each of the
following:
(1) That the pesticide, chemical or toxic substance, when used, was
registered (if applicable) and approved for use as provided in Sec.
760.2(f);
(2) That the contamination of his milk was not the result of his
failure to use the pesticide, chemical, or toxic substance, according to
the directions and limitations stated on the label;
(3) That the contamination of his milk was not otherwise his fault.
(b) If the pesticide, chemical, or toxic substance contaminating the
milk was not used by the affected farmer, he establishes each of the
following:
(1) He did not know or have reason to believe that any feed which he
purchased and which contaminated his milk contained a harmful residue of
a pesticide, a chemical, or a toxic substance or was contaminated by
nuclear radiation or fallout.
(2) None of the milk was produced by dairy cattle which he knew, or
had reason to know at the time he acquired them, were contaminated with
residues of pesticides, chemicals or toxic substances, or by nuclear
radiation or fallout.
(3) The contamination of his milk was not otherwise his fault.
(c) The affected farmer has adopted recommended practices for
eliminating residues of pesticides, chemicals, or toxic substances or
contamination from nuclear radiation or fallout from his milk as soon as
practicable following the discovery of the initial contamination.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.8 Application for payments for milk.
The affected farmer or his legal representative, as provided in
Sec. Sec. 760.25 and 760.29, must sign and file an application for
payment on a form which is approved for that purpose by the Deputy
Administrator. The form must be filed with the county FSA office for the
county where the farm headquarters are located no later than December 31
following the end of the fiscal year in which the loss occurred, or such
later date as the Deputy Administrator may specify. The application for
payment shall cover application periods of at least 28 days, except
that, if the entire application period, or the last application period,
is shorter than 28 days, applications for payment may be filed for such
shorter period. The application for payment shall be accompanied by the
information required by Sec. 760.6 as well as any other information
which will enable the county committee to determine whether the making
of an indemnity payment is precluded for any of the reasons set forth in
Sec. 760.7. Such information shall be submitted
[[Page 65]]
on forms approved for the purpose by the Deputy Administrator.
[43 FR 10535, Mar. 14, 1978, as amended at 51 FR 12986, Apr. 17, 1986;
52 FR 17935, May 13, 1987]
Sec. 760.9 Other legal recourse.
(a) No indemnity payment shall be made for contaminated milk
resulting from residues of chemicals or toxic substances if, within 30
days after receiving a complete application, the Deputy Administrator
determines that other legal recouse is available to the farmer. An
application shall not be deemed complete unless it contains all
information necessary to make a determination as to whether other legal
recourse is available to the farmer. However, notwithstanding such a
determination, the Deputy Administrator may reopen the case at a later
date and make a new determination on the merits of the case as may be
just and equitable.
(b) In the event that a farmer receives an indemnity payment under
this subpart, and such farmer is later compensated for the same loss by
the person (or the representative or successor in interest of such
person) responsible for such loss, the indemnity payment shall be
refunded by the farmer to the Department of Agriculture: Provided, That
the amount of such refund shall not exceed the amount of other
compensation received by the farmer.
[Amdt. 1, 44 FR 36361, June 22, 1979]
Payments to Manufacturers Affected by Pesticides
Sec. 760.20 Payments to manufacturers of dairy products.
An indemnity payment may be made to the affected manufacturer who is
determined by the Deputy Administrator to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of the product removed from the commercial market because of
pesticide residues, less any amount the manufacturer receives for the
product in the form of salvage.
Note: Manufacturers are not eligible for payment when dairy products
are contaminated by chemicals, toxic substances (other than pesticides)
or nuclear radiation or fallout.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.21 Application for payments by manufacturers.
The affected manufacturer, or his legal representatives, shall file
an application for payment with the Deputy Administrator, FSA,
Washington, D.C., through the county office serving the county where the
contaminated product is located. The application for payment may be in
the form of a letter or memorandum. Such letter or memorandum, however,
must be accompanied by acceptable documentation to support such
application for payment.
Sec. 760.22 Information to be furnished by manufacturer.
The affected manufacturer shall furnish the Deputy Administrator,
through the county committee, complete and accurate information
sufficient to enable him to make the determination as to the
manufacturer's eligibility to receive an indemnity payment. Such
information shall include, but is not limited to:
(a) A copy of the notice or other evidence of action by the public
agency which resulted in the product being removed from the commerical
market.
(b) The name of the pesticide causing the removal of the product
from the commerical market and, to the extent possible, the source of
the pesticide.
(c) A record of the quantity of milk or butterfat used to produce
the product for which an indemnity payment is requested.
(d) The identity of any pesticide used by the affected manufacturer.
(e) Such other information as the Deputy Administrator may request
to enable him to make the determinations required in this subpart.
Sec. 760.23 Other requirements for manufacturers.
An indemnity payment may be made under this subpart to an affected
manufacturer only under the following conditions:
[[Page 66]]
(a) If the pesticide contaminating the product was used by the
affected manufacturer, he establishes each of the following: (1) That
the pesticide, when used, was registered and recommended for such use as
provided in Sec. 760.2(f); (2) that the contamination of his product
was not the result of his failure to use the pesticide in accordance
with the directions and limitations stated on the label of the
pesticide; and (3) that the contamination of his product was not
otherwise his fault.
(b) If the pesticide contaminating the product was not used by the
affected manufacturer: (1) He did not know or have reason to believe
that the milk from which the product was processed contained a harmful
level of pesticide residue, and (2) the contamination of his product was
not otherwise his fault.
(c) In the event that a manufacturer receives an indemnity payment
under this subpart, and such manufacturer is later compensated for the
same loss by the person (or the representative or successor in interest
of such person) responsible for such loss, the indemnity payment shall
be refunded by the manufacturer to the Department of Agriculture:
Provided, That the amount of such refund shall not exceed the amount of
other compensation received by the manufacturer.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982; 51
FR 12987, Apr. 17, 1986; 52 FR 17935, May 13, 1987]
General Provisions
Sec. 760.24 Limitation of authority.
(a) County executive directors and State and county committees do
not have authority to modify or waive any of the provisions of the
regulations in this subpart.
(b) The State committee may take any action authorized or required
by the regulations in this subpart to be taken by the county committee
when such action has not been taken by the county committee. The State
committee may also:
(1) Correct, or require a county committee to correct, any action
taken by such county committee which is not in accordance with the
regulations in this subpart, or (2) require a county committee to
withhold taking any action which is not in accordance with the
regulations in this subpart.
(c) No delegation herein to a State or county committee shall
preclude the Deputy Administrator or his designee from determining any
question arising under the regulations in this subpart or from reversing
or modifying any determination made by a State or county committee.
Sec. 760.25 Estates and trusts; minors.
(a) A receiver of an insolvent debtor's estate and the trustee of a
trust estate shall, for the purpose of this subpart, be considered to
represent an insolvent affected farmer or manufacturer and the
beneficiaries of a trust, respectively, and the production of the
receiver or trustee shall be considered to be the production of the
person or manufacturer he represents. Program documents executed by any
such person will be accepted only if they are legally valid and such
person has the authority to sign the applicable documents.
(b) An affected dairy farmer or manufacturer who is a minor shall be
eligible for indemnity payments only if he meets one of the following
requirements:
(1) The right of majority has been conferred on him by court
proceedings or by statute; (2) a guardian has been appointed to manage
his property and the applicable program documents are signed by the
guardian; or (3) a bond is furnished under which the surety guarantees
any loss incurred for which the minor would be liable had he been an
adult.
(2) [Reserved]
Sec. 760.26 Appeals.
The appeal regulations issued by the Administrator, FSA, part 780 of
this chapter, shall be applicable to appeals by dairy farmers or
manufacturers from determinations made pursuant to the regulations in
this subpart.
Sec. 760.27 Setoffs.
(a) If the affected farmer or manufacturer is indebted to any agency
of the United States and such indebtedness is listed on the county debt
record, indemnity payments due the affected farmer or manufacturer under
the regulations in this part shall be applied,
[[Page 67]]
as provided in the Secretary's setoff regulations, part 13 of this
title, to such indebtedness.
(b) Compliance with the provisions of this section shall not deprive
the affected farmer or manufacturer of any right he would otherwise have
to contest the justness of the indebtedness involved in the setoff
action, either by administrative appeal or by legal action.
Sec. 760.28 Overdisbursement.
If the indemnity payment disbursed to an affected farmer or to a
manufacturer exceeds the amount authorized under the regulations in this
subpart, the affected farmer or manufacturer shall be personally liable
for repayment of the amount of such excess.
Sec. 760.29 Death, incompetency, or disappearance.
In the case of the death, incompetency, or disappearance of any
affected farmer or manufacturer who would otherwise receive an indemnity
payment, such payment may be made to the person or persons specified in
the regulations contained in part 707 of this chapter. The person
requesting such payment shall file Form FSA-325, ``Application for
Payment of Amounts Due Persons Who Have Died, Disappeared, or Have Been
Declared Incompetent,'' as provided in that part.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.30 Records and inspection thereof.
(a) The affected farmer, as well as his milk handler and any other
person who furnished information to such farmer or to the county
committee for the purpose of enabling such farmer to receive a milk
indemnity payment under this subpart, shall maintain any existing books,
records, and accounts supporting any information so furnished for 3
years following the end of the year during which the application for
payment was filed. The affected farmer, his milk handler, and any other
person who furnishes such information to the affected farmer or to the
county committee shall permit authorized representatives of the
Department of Agriculture and the General Accounting Office, during
regular business hours, to inspect, examine, and make copies of such
books, records, and accounts.
(b) The affected manufacturer or any other person who furnishes
information to the Deputy Administrator for the purposes of enabling
such manufacturer to receive an indemnity payment under this subpart
shall maintain any books, records, and accounts supporting any
information so furnished for 3 years following the end of the year
during which the application for payment was filed. The affected
manufacturer or any other person who furnishes such information to the
Deputy Administrator shall permit authorized representatives of the
Department of Agriculture and the General Accounting Office, during
regular business hours, to inspect, examine, and make copies of such
books, records, and accounts.
Sec. 760.31 Assignment.
No assignment shall be made of any indemnity payment due or to come
due under the regulations in this subpart. Any assignment or attempted
assignment of any indemnity payment due or to come due under this
subpart shall be null and void.
Sec. 760.32 Instructions and forms.
The Deputy Administrator shall cause to be prepared such forms and
instructions as are necessary for carrying out the regulations in this
subpart. Affected farmers and manufacturers may obtain information
necessary to make application for a dairy indemnity payment from the
county FSA office. Form FSA-373--Application for Indemnity Payment, is
available at the county ASC office.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.33 Availability of funds.
Payment of indemnity claims will be contingent upon the availability
of funds to the Department to pay such claims. With respect to claims
filed after October 1, 1982, if the Department determines that the
amount of claims to be filed under the program will exceed the funds
available to the Department, to pay such claims payments will be made so
that each eligible
[[Page 68]]
claimant will receive a pro rata share of the remaining funds available
to the Department to pay dairy indemnity claims.
(Approved by the Office of Management and Budget under control number
0560-0045)
[48 FR 40367, Sept. 7, 1983]
Sec. 760.34 Paperwork Reduction Act assigned numbers.
The information collection requirements contained in these
regulations (7 CFR part 760) have been approved by the Office of
Management and Budget (OMB) under the provisions of 44 U.S.C. Chapter 35
and have been assigned OMB control number 0560-0045.
[49 FR 29564, July 23, 1984]
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
Source: 74 FR 31571, July 2, 2009, unless otherwise noted.
Sec. 760.101 Applicability.
(a) This subpart establishes general conditions for this subpart and
subparts C through H of this part and applies only to those subparts.
Subparts C through H cover the following programs provided for in the
``2008 Farm Bill'' (Pub. L. 110-246):
(1) Emergency Assistance for Livestock, Honey Bees, and Farm-Raised
Fish Program (ELAP);
(2) Livestock Forage Disaster Program (LFP);
(3) Livestock Indemnity Payments Program (LIP);
(4) Supplemental Revenue Assistance Payments Program (SURE); and
(5) Tree Assistance Program (TAP).
(b) To be eligible for payments under these programs, participants
must comply with all provisions under this subpart and the relevant
particular subpart for that program. All other provisions of law also
apply.
Sec. 760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
(a) The programs in subparts C through H of this part will be
administered under the general supervision and direction of the
Administrator, Farm Service Agency (FSA), and the Deputy Administrator
for Farm Programs, FSA (who is referred to as the ``Deputy
Administrator'' in this part).
(b) FSA representatives do not have authority to modify or waive any
of the provisions of the regulations of this part as amended or
supplemented, except as specified in paragraph (e) of this section.
(c) The State FSA committee will take any action required by the
regulations of this part that the county FSA committee has not taken.
The State FSA committee will also:
(1) Correct, or require a county FSA committee to correct, any
action taken by such county FSA committee that is not in accordance with
the regulations of this part or
(2) Require a county FSA committee to withhold taking any action
that is not in accordance with this part.
(d) No provision or delegation to a State or county FSA committee
will preclude the Administrator, the Deputy Administrator for Farm
Programs, or a designee or other such person, from determining any
question arising under the programs of this part, or from reversing or
modifying any determination made by a State or county FSA committee.
(e) The Deputy Administrator for Farm Programs may authorize State
and county FSA committees to waive or modify non-statutory deadlines, or
other program requirements of this part in cases where lateness or
failure to meet such requirements does not adversely affect operation of
the programs in this part. Participants have no right to seek an
exception under this provision. The Deputy Administrator's refusal to
consider cases or circumstances or decision not to exercise this
discretionary authority under this provision will not be considered an
adverse decision and is not appealable.
Sec. 760.103 Eligible producer.
(a) In general, the term ``eligible producer'' means, in addition to
other requirements as may apply, an individual or entity described in
paragraph (b) of this section that, as determined by the Secretary,
assumes the production and
[[Page 69]]
market risks associated with the agricultural production of crops or
livestock on a farm either as the owner of the farm, when there is no
contract grower, or a contract grower of the livestock when there is a
contract grower.
(b) To be eligible for benefits, an individual or entity must be a:
(1) Citizen of the United States;
(2) Resident alien; for purposes of this part, resident alien means
``lawful alien'' as defined in 7 CFR part 1400;
(3) Partnership of citizens of the United States; or
(4) Corporation, limited liability corporation, or other farm
organizational structure organized under State law.
Sec. 760.104 Risk management purchase requirements.
(a) To be eligible for program payments under:
(1) ELAP, SURE, and TAP, eligible producers for any commodity at any
location for which the producer seeks benefits must have for every
commodity on every farm in which the producer has an interest for the
relevant program year:
(i) In the case of an ``insurable commodity,'' (which for this part
means a commodity for which the Deputy Administrator determines
catastrophic coverage is available from the USDA Risk Management Agency
(RMA)) obtained catastrophic coverage or better under a policy or plan
of insurance administered by RMA under the Federal Crop Insurance Act
(FCIA) (7 U.S.C. 1501-1524), except that this obligation will not
include crop insurance pilot programs so designated by RMA or to forage
crops intended for grazing, and
(ii) In the case of a ``noninsurable commodity,'' (which is any
commodity for which, as to the particular production in question, is not
an ``insurable commodity,'' but for which coverage is available under
the Noninsured Crop Disaster Assistance Program (NAP) operated under 7
CFR part 1437), have obtained NAP coverage by filing the proper
paperwork and fee within the relevant deadlines, except that this
requirement will not include forage on grazing land.
(2) LFP, with respect to those grazing lands incurring losses for
which assistance is being requested, eligible livestock producers must
have:
(i) Obtained a policy or plan of insurance for the forage crop under
FCIA, or
(ii) Filed the required paperwork and paid the administrative fee by
the applicable State filing deadline for NAP coverage for that grazing
land.
(b) Producers who did not purchase a policy or plan of insurance
administered by RMA in accordance with FCIA (7 U.S.C. 1501-1524), or NAP
coverage for their applicable crops, will not be eligible for assistance
under ELAP, LFP, SURE, and TAP, as provided in paragraph (a) of this
section unless the producer is one of the classes of farmers for which
an exemption under Sec. 760.107 apply, is exempt under the ``buy-in''
provisions of this subpart, or is granted relief from that requirement
by the Deputy Administrator under some other provision of this part.
(c) Producers who have obtained insurance by a written agreement as
specified in Sec. 400.652(d) of this title even though that production
would not normally be considered an ``insurable commodity'' under the
rules of this subpart, will be considered to have met the risk
management purchase requirement of this subpart with respect to such
production. The commodity to which the agreement applies will be
considered for purposes of this subpart to be an ``insurable
commodity.''
(d) Producers by an administrative process who were granted NAP
coverage for the relevant period as a form of relief in an
administrative proceeding, or who were awarded NAP coverage for the
relevant period through an appeal through the National Appeals Division
(NAD), will be considered as having met the NAP eligibility criteria of
this section for that crop as long as the applicable NAP service fee has
been paid.
(e) The risk management purchase requirement for programs specified
under this part will be determined based on the initial intended use of
a crop at the time a policy or plan of insurance or NAP coverage was
purchased and as reported on the acreage report.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
[[Page 70]]
Sec. 760.105 Waiver for certain crop years; buy-in.
(a) For the 2008 crop year, the insurance or NAP purchase
requirements of Sec. 760.104 (this is referred to as the ``purchase''
requirement) will be waived for eligible producers for losses during the
2008 crop year if the eligible producer paid a fee (buy-in fee) equal to
the applicable NAP service fee or catastrophic risk protection plan fee
to the Secretary by September 16, 2008. Payment of a buy-in fee under
this section is for the sole purpose of becoming eligible for
participation in ELAP, LFP, SURE, and TAP. Payment of a buy-in fee does
not provide any actual insurance or NAP coverage or assistance.
(b) For the 2009 crop year, the purchase requirement will be waived
for purchases where the closing date for coverage occurred prior to
August 14, 2008, so long as the buy-in fee set by the Secretary of
Agriculture was paid by January 12, 2009.
(c) Any producer of 2008 commodities who is otherwise ineligible
because of the purchase requirement and who did not meet the conditions
of paragraph (a) of this section may still be covered for ELAP, SURE, or
TAP assistance if the producer paid the applicable fee described in
paragraph (d) of this section no later than May 18, 2009, provided that
in the case of each:
(1) Insurable commodity, excluding grazing land, the eligible
producers on the farm agree to obtain a policy or plan of insurance
under FCIA (7 U.S.C. 1501-1524), excluding a crop insurance pilot
program under that subtitle, for the next insurance year for which crop
insurance is available to the eligible producers on the farm at a level
of coverage equal to 70 percent or more of the recorded or appraised
average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage, and
(2) Noninsurable commodity, the eligible producers on the farm must
agree to file the required paperwork, and pay the administrative fee by
the applicable State filing deadline, for NAP for the next year for
which a policy is available.
(d) For producers seeking eligibility under paragraph (c) of this
section, the applicable buy-in fee for the 2008 crop year was the
catastrophic risk protection plan fee or the applicable NAP service fee
in effect prior to NAP service fee adjustments specified in the 2008
Farm Bill.
Sec. 760.106 Equitable relief.
(a) The Secretary may provide equitable relief on a case-by-case
basis for the purchase requirement to eligible participants that:
(1) Are otherwise ineligible or unintentionally fail to meet the
requirements of Sec. 760.104 for one or more eligible crops on the
farm, as determined by the Secretary, or
(2) Failed to meet the requirements of Sec. 760.104 due to the
enactment of the 2008 Farm Bill after the:
(i) Applicable sales closing date for a policy or plan of insurance
in accordance with the FCIA (7 U.S.C. 1501-1524) or
(ii) Application closing date for NAP.
(b) Equitable relief will not be granted to participants in
instances of:
(1) A scheme or device that had the effect or intent of defeating
the purposes of a program of insurance, NAP, or any other program
administered under this part or elsewhere in this title,
(2) An intentional decision to not meet the purchase or buy-in
requirements,
(3) Producers against whom sanctions have been imposed by RMA or FSA
prohibiting the purchase of coverage or prohibiting the receipt of
payments otherwise payable under this part,
(4) Violations of highly erodible land and wetland conservation
provisions of 7 CFR part 12,
(5) Producers who are ineligible under any provisions of law,
including regulations, relating to controlled substances (see for
example 7 CFR 718.6), or
(6) A producer's debarment by a federal agency from receiving any
federal government payment if such debarment included payments of the
type involved in this matter.
(c) In general, no relief that is discretionary will be allowed
except upon a finding by the Deputy Administrator or the Deputy
Administrator's designee that the person seeking the relief acted
[[Page 71]]
in good faith as determined in accordance with such rules and procedures
as may be set by the Deputy Administrator.
Sec. 760.107 Socially disadvantaged, limited resource, or beginning
farmer or rancher.
(a) Risk management purchase requirements, as provided in Sec.
760.104, will be waived for a participant who, as specified in
paragraphs (b)(1) through (3) of this section, is eligible to be
considered a ``socially disadvantaged farmer or rancher,'' a ``limited
resource farmer or rancher,'' or a ``beginning farmer or rancher.''
(b) To qualify for this section as a ``socially disadvantaged farmer
or rancher,'' ``limited resource farmer or rancher,'' or ``beginning
farmer or rancher,'' participants must meet eligibility criteria as
follows:
(1) A ``socially disadvantaged farmer or rancher'' is, for this
section, a farmer or rancher who is a member of a socially disadvantaged
group whose members have been subjected to racial or ethnic prejudice
because of their identity as members of a group without regard to their
individual qualities. Gender is not included as a covered group.
Socially disadvantaged groups include the following and no others unless
approved in writing by the Deputy Administrator:
(i) American Indians or Alaskan Natives,
(ii) Asians or Asian-Americans,
(iii) Blacks or African Americans,
(iv) Native Hawaiians or other Pacific Islanders, and
(v) Hispanics.
(2) A ``limited resource farmer or rancher'' means for this section
a producer who is both:
(i) A producer whose direct or indirect gross farm sales do not
exceed $100,000 in both of the two calendar years that precede the
calendar year that corresponds to the relevant program year, adjusted
upwards for any general inflation since fiscal year 2004, inflation as
measured using the Prices Paid by Farmer Index compiled by the National
Agricultural Statistics Service (NASS), and
(ii) A producer whose total household income is at or below the
national poverty level for a family of four, or less than 50 percent of
the county median household income for the same two calendar years
referenced in paragraph (a) of this section, as determined annually
using Commerce Department data. (Limited resource farmer or rancher
status can be determined using a Web site available through the Limited
Resource Farmer and Rancher Online Self Determination Tool through the
National Resource and Conservation Service at http://
www.lrftool.sc.egov.usda.gov/tool.asp.)
(3) A ``beginning farmer or rancher'' means for this section a
person or legal entity who for a program year both:
(i) Has never previously operated a farm or ranch, or who has not
operated a farm or ranch in the previous 10 years, applicable to all
members (shareholders, partners, beneficiaries, etc., as fits the
circumstances) of an entity, and
(ii) Will have or has had for the relevant period materially and
substantially participated in the operation of a farm or ranch.
(c) If a legal entity requests to be considered a ``socially
disadvantaged,'' ``limited resource,'' or ``beginning'' farmer or
rancher, at least 50 percent of the persons in the entity must in their
individual capacities meet the definition as provided in paragraphs
(b)(1) through (3) of this section and it must be clearly demonstrated
that the entity was not formed for the purposes of avoiding the purchase
requirements or formed after the deadline for the purchase requirement.
Sec. 760.108 Payment limitation.
(a) For 2008, no person, as defined and determined under the
provisions in part 1400 of this title in effect for 2008 may receive
more than:
(1) $100,000 total for the 2008 program year under ELAP, LFP, LIP,
and SURE combined or
(2) $100,000 for the 2008 program year under TAP.
(b) For 2009 and subsequent program years, no person or legal
entity, excluding a joint venture or general partnership, as determined
by the rules in part 1400 of this title may receive, directly or
indirectly, more than:
[[Page 72]]
(1) $100,000 per program year total under ELAP, LFP, LIP, and SURE
combined; or
(2) $100,000 per program year under TAP.
(c) The Deputy Administrator may take such actions as needed,
whether or not specifically provided for, to avoid a duplication of
benefits under the multiple programs provided for in this part, or
duplication of benefits received in other programs, and may impose such
cross-program payment limitations as may be consistent with the intent
of this part.
(1) FSA will review ELAP payments after the funding factor as
specified in Sec. 760.208 is determined to be 100 percent. FSA will
ensure that total ELAP payments provided to a participant in a year,
together with any amount provided to the same participant for the same
loss as a result of any Federal crop insurance program, the Noninsured
Crop Disaster Assistance Program, or any other Federal disaster program,
plus the value of the commodity that was not lost, is not more than 95
percent of the value of the commodity in the absence of the loss, as
estimated by FSA.
(2) [Reserved]
(d) In applying the limitation on average adjusted gross income
(AGI) for 2008, an individual or entity is ineligible for payment under
ELAP, LFP, LIP, SURE, and TAP if the individual's or entity's average
adjusted gross income (AGI) exceeds $2.5 million for 2007, 2006, and
2005 under the provisions in part 1400 of this title in effect for 2008.
(e) For 2009 through 2011, the average AGI limitation provisions in
part 1400 of this title relating to limits on payments for persons or
legal entities, excluding joint ventures and general partnerships, with
certain levels of average adjusted gross income (AGI) will apply under
this subpart and will apply to each applicant for ELAP, LFP, LIP, SURE,
and TAP. Specifically, for 2009 through 2011, a person or legal entity
with an average adjusted gross nonfarm income, as defined in Sec.
1404.3 of this title, that exceeds $500,000 will not be eligible to
receive benefits under this part.
(f) The direct attribution provisions in part 1400 of this title
apply to ELAP, LFP, LIP, SURE, and TAP for 2009 and subsequent years.
Under those rules, any payment to any legal entity will also be
considered for payment limitation purposes to be a payment to persons or
legal entities with an interest in the legal entity or in a sub-entity.
If any such interested person or legal entity is over the payment
limitation because of direct payment or their indirect interests or a
combination thereof, then the payment to the actual payee will be
reduced commensurate with the amount of the interest of the interested
person in the payee. Likewise, by the same method, if anyone with a
direct or indirect interest in a legal entity or sub-entity of a payee
entity exceeds the AGI levels that would allow a participant to directly
receive a payment under this part, then the payment to the actual payee
will be reduced commensurately with that interest. For all purposes
under this section, unless otherwise specified in part 1400 of this
title, the AGI figure that will be relevant for a person or legal entity
will be an average AGI for the three taxable years that precede the most
immediately preceding complete taxable year, as determined by CCC.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
Sec. 760.109 Misrepresentation and scheme or device.
(a) A participant who is determined to have deliberately
misrepresented any fact affecting a program determination made in
accordance with this part, or otherwise used a scheme or device with the
intent to receive benefits for which the participant would not otherwise
be entitled, will not be entitled to program payments and must refund
all such payments received, plus interest as determined in accordance
with part 792 of this chapter. The participant will also be denied
program benefits for the immediately subsequent period of at least 2
crop years, and up to 5 crop years. Interest will run from the date of
the original disbursement by FSA.
(b) A participant will refund to FSA all program payments, plus
interest, as determined in accordance with part 792
[[Page 73]]
of this chapter, provided however, that in any case it will run from the
date of the original disbursement, received by such participant with
respect to all contracts or applications, as may be applicable, if the
participant 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. 760.110 Appeals.
(a) Appeals. Appeal regulations set forth at parts 11 and 780 of
this title apply to this part.
(b) Determinations not eligible for administrative review or appeal.
FSA determinations that are not in response to a specific individual
participant's application are not to be construed to be individual
program eligibility determinations or adverse decisions and are,
therefore, not subject to administrative review or appeal under parts 11
or 780 of this title. Such determinations include, but are not limited
to, application periods, deadlines, coverage periods, crop years, fees,
prices, general statutory or regulatory provisions that apply to
similarly situated participants, national average payment prices,
regions, crop definition, average yields, and payment factors
established by FSA for any of the programs for which this subpart
applies or similar matters requiring FSA determinations.
Sec. 760.111 Offsets, assignments, and debt settlement.
(a) Any payment to any participant under this part will be made
without regard to questions of title under State law, and without regard
to any claim or lien against the commodity, or proceeds, in favor of the
owner or any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings in part 792 of this title
apply to payments made under this part.
(b) Any participant entitled to any payment may assign any
payment(s) in accordance with regulations governing the assignment of
payments in part 1404 of this title.
Sec. 760.112 Records and inspections.
(a) Any participant receiving payments under any program in ELAP,
LFP, LIP, SURE, or TAP, or any other legal entity or person who provides
information for the purposes of enabling a participant to receive a
payment under ELAP, LFP, LIP, SURE, or TAP, must:
(1) Maintain any books, records, and accounts supporting the
information for 3 years following the end of the year during which the
request for payment was submitted, and
(2) Allow authorized representatives of USDA and the Government
Accountability Office, during regular business hours, to inspect,
examine, and make copies of such books or records, and to enter the farm
and to inspect and verify all applicable livestock and acreage in which
the participant has an interest for the purpose of confirming the
accuracy of information provided by or for the participant.
(b) [Reserved]
Sec. 760.113 Refunds; joint and several liability.
(a) In the event that the participant fails to comply with any term,
requirement, or condition for payment or assistance arising under ELAP,
LFP, LIP, SURE, or TAP and if any refund of a payment to FSA will
otherwise become due in connection with this part, the participant must
refund to FSA all payments made in regard to such matter, together with
interest and late-payment charges as provided for in part 792 of this
chapter provided that interest will in all cases run from the date of
the original disbursement.
(b) All persons with a financial interest in an operation or in an
application for payment will be jointly and severally liable for any
refund, including related charges, that is determined to be due FSA for
any reason under this part.
Sec. 760.114 Minors.
A minor child is eligible to apply for program benefits under ELAP,
LFP, LIP, SURE, or TAP if all the eligibility requirements are met and
the provision
[[Page 74]]
for minor children in part 1400 of this title are met.
Sec. 760.115 Deceased individuals or dissolved entities.
(a) Payments may be made for eligible losses suffered by an eligible
participant who is now a deceased individual or is a dissolved entity if
a representative, who currently has authority to enter into a contract,
on behalf of the participant, signs the application for payment.
(b) Legal documents showing proof of authority to sign for the
deceased individual or dissolved entity must be provided.
(c) If a participant 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.
Sec. 760.116 Miscellaneous.
(a) As a condition to receive benefits under ELAP, LFP, LIP, SURE,
or TAP, a participant must have been in compliance with the provisions
of parts 12 and 718 of this title, and must not otherwise be precluded
from receiving benefits under those provisions or under any law.
(b) Rules of the Commodity Credit Corporation that are cited in this
part will be applied to this subpart in the same manner as if the
programs covered in this subpart were programs funded by the Commodity
Credit Corporation.
Subpart C_Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program
Source: 74 FR 46673, Sept. 11, 2009, unless otherwise noted.
Sec. 760.201 Applicability.
(a) This subpart establishes the terms and conditions under which
the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish
Program (ELAP) will be administered.
(b) Eligible producers of livestock, honeybees, and farm-raised fish
will be compensated to reduce eligible losses that occurred in the
calendar year for which the producer requests benefits. The eligible
loss must have been a direct result of eligible adverse weather or
eligible loss conditions as determined by the Deputy Administrator,
including, but not limited to, blizzards, wildfires, disease, and insect
infestation. ELAP does not cover losses that are covered under LFP, LIP,
or SURE.
Sec. 760.202 Definitions.
The following definitions apply to this subpart and to the
administration of ELAP. The definitions in parts 718 and 1400 of this
title also apply, except where they conflict with the definitions in
this section.
Adult beef bull means a male beef breed bovine animal that was used
for breeding purposes that was at least 2 years old before the beginning
date of the eligible adverse weather or eligible loss condition.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring before the beginning date of the
eligible adverse weather or eligible loss condition. A first-time bred
beef heifer is also considered an adult beef cow if it was pregnant on
or by the beginning date of the eligible adverse weather or eligible
loss condition.
Adult buffalo and beefalo bull means a male animal of those breeds
that was used for breeding purposes and was at least 2 years old before
the beginning date of the eligible adverse weather or eligible loss
condition.
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring before the beginning date of
the eligible adverse weather or eligible loss condition. A first-time
bred buffalo or beefalo heifer is also considered an adult buffalo or
beefalo cow if it was pregnant by the beginning date of the eligible
adverse weather or eligible loss condition.
Adult dairy bull means a male dairy breed bovine animal that was
used primarily for breeding dairy cows and was at least 2 years old by
the beginning date of the eligible adverse weather or eligible loss
condition.
[[Page 75]]
Adult dairy cow means a female bovine dairy breed animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring by the beginning date of the eligible adverse
weather or eligible loss condition. A first-time bred dairy heifer is
also considered an adult dairy cow if it was pregnant by the beginning
date of the eligible adverse weather or eligible loss condition.
Agricultural operation means a farming operation.
Application means FSA form used to apply for either the emergency
loss assistance for livestock or emergency loss assistance for farm-
raised fish or honeybees.
Aquatic species means any species of aquatic organism grown as food
for human consumption, fish raised as feed for fish that are consumed by
humans, or ornamental fish propagated and reared in an aquatic medium by
a commercial operator on private property in water in a controlled
environment. Catfish and crawfish are both defined as aquatic species
for ELAP. However, aquatic species do not include reptiles or
amphibians.
Bait fish means small fish caught for use as bait to attract large
predatory fish. For ELAP, it also must meet the definition of aquatic
species and not be raised as food for fish; provided, however, that only
bait fish produced in a controlled environment can generate claims under
ELAP.
Buck means a male goat.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Controlled environment means an environment in which everything that
can practicably be controlled by the participant with structures,
facilities, and growing media (including, but not limited to, water and
nutrients) was in fact controlled by the participant at the time of the
eligible adverse weather or eligible loss condition.
County committee or county office means the respective FSA committee
or office.
Deputy Administrator or DAFP means the Deputy Administrator for Farm
Programs, Farm Service Agency, U.S. Department of Agriculture or the
designee.
Eligible adverse weather or eligible loss condition means any
disease, adverse weather, or other loss condition as determined by the
Deputy Administrator. The eligible adverse weather or eligible loss
condition would have resulted in agricultural losses not covered by
other programs in this part for which the Deputy Administrator
determines financial assistance needs to be provided to producers. The
disease, adverse weather, or other conditions may include, but are not
limited to, blizzards, wildfires, water shortages, and other factors.
Specific eligible adverse weather and eligible loss conditions may vary
based on the type of loss. Identification of eligible adverse weather
and eligible loss conditions will include locations (National, State, or
county-level) and start and end dates.
Equine animal means a domesticated horse, mule, or donkey.
Ewe means a female sheep.
Farming operation means a business enterprise engaged in producing
agricultural products.
Farm-raised fish means any aquatic species that is propagated and
reared in a controlled environment.
FSA means the Farm Service Agency.
Game or sport fish means fish pursued for sport by recreational
anglers; provided, however, that only game or sport fish produced in a
controlled environment can generate claims under ELAP.
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats. Goats are further delineated into categories by
sex (bucks and nannies) and age (kids).
Kid means a goat less than 1 year old.
Lamb means a sheep less than 1 year old.
Livestock owner, for death loss purposes, means one having legal
ownership of the livestock for which benefits
[[Page 76]]
are being requested on the day such livestock died due to an eligible
adverse weather or eligible loss condition. For all other purposes of
loss under ELAP, ``livestock owner'' means one having legal ownership of
the livestock for which benefits are being requested during the 60 days
prior to the beginning date of the eligible adverse weather or eligible
loss condition.
Nanny means a female goat.
Non-adult beef cattle means a beef breed bovine animal that does not
meet the definition of adult beef cow or bull. Non-adult beef cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died. For a loss other than
death, means a bovine animal less than 2 years old that that weighed 500
pounds or more on or before the beginning date of the eligible adverse
weather or eligible loss condition.
Non-adult buffalo or beefalo means an animal of those breeds that
does not meet the definition of adult buffalo or beefalo cow or bull.
Non-adult buffalo or beefalo are further delineated by weight categories
of either less than 400 pounds or 400 pounds or more at the time of
death. For a loss other than death, means an animal of those breeds that
is less than 2 years old that weighed 500 pounds or more on or before
the beginning date of the eligible adverse weather or eligible loss
condition.
Non-adult dairy cattle means a bovine dairy breed animal used for
the purpose of providing milk for human consumption that does not meet
the definition of adult dairy cow or bull. Non-adult dairy cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died. For a loss other than
death, means a bovine dairy breed animal used for the purpose of
providing milk for human consumption that is less than 2 years old that
weighed 500 pounds or more on or before the beginning date of the
eligible adverse weather or eligible loss condition.
Normal grazing period, with respect to a county, means the normal
grazing period during the calendar year with respect to each specific
type of grazing land or pastureland in the county.
Normal mortality means the numerical amount, computed by a
percentage, as established for the area by the FSA State Committee, of
expected livestock deaths, by category, that normally occur during a
calendar year for a producer.
Poultry means domesticated chickens, turkeys, ducks, and geese.
Poultry are further delineated into categories by sex, age, and purpose
of production as determined by FSA.
Ram means a male sheep.
Secretary means the Secretary of Agriculture or a designee of the
Secretary.
Sheep means a domesticated, ruminant mammal of the genus Ovis. Sheep
are further defined by sex (rams and ewes) and age (lambs) for purposes
of dividing into categories for loss calculations.
State committee, State office, county committee, or county office
means the respective FSA committee or office.
Swine means a domesticated omnivorous pig, hog, or boar. Swine for
purposes of dividing into categories for loss calculations are further
delineated into categories by sex and weight as determined by FSA.
United States means all 50 States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
Guam, and the District of Columbia.
Sec. 760.203 Eligible losses, adverse weather, and other loss
conditions.
(a) An eligible loss covered under this subpart is a loss that an
eligible producer or contract grower of livestock, honeybees, or farm-
raised fish incurs due to an eligible adverse weather or eligible loss
condition, as determined by the Deputy Administrator, (including, but
not limited to, blizzards and wildfires).
(b) A loss covered under LFP, LIP, or SURE is not eligible for ELAP.
(c) To be eligible, the loss must have occurred:
(1) During the calendar year for which payment is being requested
and
(2) On or after January 1, 2008, and before October 1, 2011.
[[Page 77]]
(d) For a livestock feed loss to be considered an eligible loss, the
livestock feed loss must be one of the following:
(1) Loss of purchased forage or feedstuffs that was intended for use
as feed for the participant's eligible livestock that was physically
located in the county where the eligible adverse weather or eligible
loss condition occurred on the beginning date of the eligible adverse
weather or eligible loss condition. The loss must be due to an eligible
adverse weather or eligible loss condition, as determined by the Deputy
Administrator, including, but not limited to, blizzard, flood,
hurricane, tidal surge, tornado, volcanic eruption, wildfire on non-
Federal land, or lightning;
(2) Loss of mechanically harvested forage or feedstuffs intended for
use as feed for the participant's eligible livestock that was physically
located in the county where the eligible adverse weather or eligible
loss condition occurred on the beginning date of the eligible adverse
weather or eligible loss condition. The loss must have occurred after
harvest due to an eligible adverse weather or eligible loss condition,
as determined by the Deputy Administrator, including, but not limited
to, blizzard, flood, hurricane, tidal surge, tornado, volcanic eruption,
wildfire on non-Federal land, or lightning;
(3) A loss resulting from the additional cost incurred for providing
or transporting livestock feed to eligible livestock due to an eligible
adverse weather or eligible loss condition as determined by the Deputy
Administrator, including, but not limited to, costs associated with
equipment rental fees for hay lifts and snow removal. The additional
costs incurred must have been incurred for losses suffered in the county
where the eligible adverse weather or eligible loss condition occurred;
(4) A loss resulting from the additional cost of purchasing
additional livestock feed, above normal quantities, required to maintain
the eligible livestock during an eligible adverse weather or eligible
loss condition, until additional livestock feed becomes available, as
determined by the Deputy Administrator. To be eligible, the additional
feed purchased above normal quantities must be feed that is fed to
maintain livestock in the county where the eligible adverse weather or
eligible loss condition occurred.
(e) For a grazing loss to be considered eligible, the grazing loss
must have been incurred on eligible grazing lands physically located in
the county where the eligible adverse weather or eligible loss condition
occurred. The grazing loss must be due to an eligible adverse weather or
eligible loss condition, as determined by the Deputy Administrator,
including, but not limited to, flood, freeze, hurricane, hail, tidal
surge, volcanic eruption, and wildfire on non-Federal land. The grazing
loss will not be eligible if it is due to an adverse weather condition
covered by LFP as specified in subpart D, such as drought or wildfire on
federally managed land where the producer is prohibited by the Federal
agency from grazing the normally permitted livestock on the managed
rangeland due to a fire.
(f) For a loss due to livestock death to be considered eligible, the
livestock death must have occurred in the county where the eligible loss
condition occurred. The livestock death must be due to an eligible loss
condition determined as eligible by the Deputy Administrator and not
related to an eligible adverse weather event as specified in Subpart E
for LIP.
(g) For honeybee or farm-raised fish feed losses to be considered
eligible, the honeybee or farm-raised fish feed producer must have
incurred the loss in the county where the eligible adverse weather or
eligible loss condition occurred. The honeybee or farm-raised fish feed
losses must be for feed that was intended as feed for the honeybees or
farm-raised fish that was damaged or destroyed due to an eligible
adverse weather or eligible loss condition, as determined by the Deputy
Administrator, including, but not limited to, earthquake, excessive
wind, flood, hurricane, tidal surge, tornado, volcanic eruption, and
wildfire.
(h) For honeybee colony or honeybee hive losses to be considered
eligible, the honeybee colony or honeybee hive producer must have
incurred the loss in the county where the eligible adverse weather or
eligible loss condition
[[Page 78]]
occurred. The honeybee colony or honeybee hive losses must be due to an
eligible adverse weather or eligible loss condition, as determined by
the Deputy Administrator, including, but not limited to, earthquake,
excessive wind, flood, hurricane, tornado, volcanic eruption, and
wildfire. To be eligible for a loss of honeybees due to colony collapse
disorder, the eligible honeybee producer must provide documentation to
support that the loss was due to colony collapse disorder. Acceptable
documentation includes, but is not limited to, a colony collapse
certification by a registered entomologist, Cooperative Extension
specialist, or Land Grant University.
(i) For a death loss for bait fish or game fish to be considered
eligible, the producer must have incurred the loss in the county where
the eligible adverse weather or eligible loss condition occurred. The
bait fish or game fish death must be due to an eligible adverse weather
or eligible loss condition as determined by the Deputy Administrator
including, but not limited to, an earthquake, flood, hurricane, tidal
surge, tornado, and volcanic eruption.
Sec. 760.204 Eligible livestock, honeybees, and farm-raised fish.
(a) To be considered eligible livestock for livestock feed losses
and grazing losses, livestock must meet all the following conditions:
(1) Be alpacas, adult or non-adult dairy cattle, adult or non-adult
beef cattle, adult or non-adult buffalo, adult or non-adult beefalo,
deer, elk, emus, equine, goats, llamas, poultry, reindeer, sheep, or
swine;
(2) Be livestock that would normally have been grazing the eligible
grazing land or pastureland during the normal grazing period for the
specific type of grazing land or pastureland for the county;
(3) Be livestock that is owned, cash-leased, purchased, under
contract for purchase, or been raised by a contract grower or an
eligible livestock producer, during the 60 days prior to the beginning
date of the eligible adverse weather or eligible loss condition;
(4) Be livestock that has been maintained for commercial use as part
of the producer's farming operation on the beginning date of the
eligible adverse weather or eligible loss condition;
(5) Be livestock that has not been produced and maintained for
reasons other than commercial use as part of a farming operation; and
(6) Be livestock that was not in a feedlot, on the beginning date of
the eligible adverse weather or eligible loss condition, as a part of
the normal business operation of the producer, as determined by the
Deputy Administrator.
(b) The eligible livestock types for feed losses and grazing losses
are:
(1) Adult beef cows or bulls,
(2) Adult buffalo or beefalo cows or bulls,
(3) Adult dairy cows or bulls,
(4) Alpacas,
(5) Deer,
(6) Elk,
(7) Emus,
(8) Equine,
(9) Goats,
(10) Llamas,
(11) Non-adult beef cattle,
(12) Non-adult buffalo or beefalo,
(13) Non-adult dairy cattle,
(14) Poultry,
(15) Reindeer,
(16) Sheep, and
(17) Swine;
(c) Ineligible livestock for feed losses and grazing losses include,
but are not limited to:
(1) Livestock that were or would have been in a feedlot, on the
beginning date of the eligible adverse weather or eligible loss
condition, as a part of the normal business operation of the producer,
as determined by FSA;
(2) Yaks;
(3) Ostriches;
(4) All beef and dairy cattle, and buffalo and beefalo that weighed
less than 500 pounds on the beginning date of the eligible adverse
weather or eligible loss condition;
(5) Any wild free roaming livestock, including horses and deer;
(6) Livestock produced or maintained for reasons other than
commercial use as part of a farming operation, including, but not
limited to, livestock produced or maintained exclusively for
recreational purposes, such as:
(i) Roping,
(ii) Hunting,
[[Page 79]]
(iii) Show,
(iv) Pleasure,
(v) Use as pets, or
(vi) Consumption by owner.
(d) For death losses for livestock owners to be eligible, the
livestock must meet all of the following conditions:
(1) Be alpacas, adult or non-adult dairy cattle, beef cattle,
beefalo, buffalo, deer, elk, emus, equine, goats, llamas, poultry,
reindeer, sheep, or swine, and meet all the conditions in paragraph (f)
of this section.
(2) Be one of the following categories of animals for which
calculations of eligibility for payments will be calculated separately
for each producer with respect to each category:
(i) Adult beef bulls;
(ii) Adult beef cows;
(iii) Adult buffalo or beefalo bulls;
(iv) Adult buffalo or beefalo cows;
(v) Adult dairy bulls;
(vi) Adult dairy cows;
(vii) Alpacas;
(viii) Chickens, broilers, pullets;
(ix) Chickens, chicks;
(x) Chickens, layers, roasters;
(xi) Deer;
(xii) Ducks;
(xiii) Ducks, ducklings;
(xiv) Elk;
(xv) Emus;
(xvi) Equine;
(xvii) Geese, goose;
(xviii) Geese, gosling;
(xix) Goats, bucks;
(xx) Goats, nannies;
(xxi) Goats, kids;
(xxii) Llamas;
(xxiii) Non-adult beef cattle;
(xxiv) Non-adult buffalo or beefalo;
(xxv) Non-adult dairy cattle;
(xxvi) Reindeer;
(xxvii) Sheep, ewes;
(xxviii) Sheep, lambs;
(xxix) Sheep, rams;
(xxx) Swine, feeder pigs under 50 pounds;
(xxxi) Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(xxxii) Swine, sows, boars, barrows, gilts over 150 pounds;
(xxxiii) Turkeys, poults; and
(xxxiv) Turkeys, toms, fryers, and roasters.
(e) Under ELAP, ``contract growers'' will only be deemed to include
producers of livestock, other than feedlots, whose income is dependent
on the actual weight gain and survival of the livestock. For death
losses for contract growers to be eligible, the livestock must meet all
of the following conditions:
(1) Be poultry or swine, as defined in Sec. 760.202, and meet all
the conditions in paragraph (f) of this section.
(2) Be one of the following categories of animals for which
calculations of eligibility for payments will be calculated separately
for each contract grower with respect to each category:
(i) Chickens, broilers, pullets;
(ii) Chickens, layers, roasters;
(iii) Geese, goose;
(iv) Swine, boars, sows;
(v) Swine, feeder pigs;
(vi) Swine, lightweight barrows, gilts;
(vii) Swine, sows, boars, barrows, gilts; and
(viii) Turkeys, toms, fryers, and roasters.
(f) For livestock death losses to be considered eligible livestock
for the purpose of generating payments under this subpart, livestock
must meet all of the following conditions:
(1) They must have died as a direct result of an eligible loss
condition:
(i) On or after the beginning date of the eligible loss condition;
and
(ii) No later than 60 calendar days from the ending date of the
eligible loss condition; and
(iii) On or after January 1, 2008, and before October 1, 2011; and
(iv) In the calendar year for which payment is being requested; and
(2) Been maintained for commercial use as part of a farming
operation on the day the livestock died; and
(3) Before dying, not have been produced or maintained for reasons
other than commercial use as part of a farming operation, such non-
eligible uses being understood to include, but not be limited to, any
uses of wild free roaming animals or use of the animals for recreational
purposes, such as pleasure, hunting, roping, pets, or for show.
(g) For honeybee losses to be eligible, the honeybee colony must
meet the following conditions:
(1) Been maintained for the purpose of producing honey or
pollination for
[[Page 80]]
commercial use in a farming operation on the beginning date of the
eligible adverse weather or eligible loss condition;
(2) Been physically located in the county where the eligible adverse
weather or eligible loss condition occurred on the beginning date of the
eligible adverse weather or eligible loss condition;
(3) Been a honeybee colony in which the participant has a risk in
the honey production or pollination farming operation on the beginning
date of the eligible adverse weather or eligible loss condition;
(4) Been a honeybee colony for which the producer had an eligible
loss of a honeybee colony, honeybee hive, or honeybee feed; the feed
must have been intended as feed for honeybees.
(h) For fish to be eligible to generate payments under ELAP, the
fish must be produced in a controlled environment so to be considered
``farm raised fish'' as defined in this subpart, and the farm-raised
fish must:
(1) For feed losses:
(i) Be an aquatic species that is propagated and reared in a
controlled environment;
(ii) Be maintained and harvested for commercial use as part of a
farming operation; and
(iii) Be physically located in the county where the eligible adverse
weather or eligible loss condition occurred on the beginning date of the
eligible adverse weather or eligible loss condition.
(2) For death losses:
(i) Be bait fish or game fish that are propagated and reared in a
controlled environment;
(ii) Been maintained for commercial use as part of a farming
operation; and
(iii) Been physically located in the county where the eligible loss
adverse weather or eligible loss condition occurred on the beginning
date of the eligible adverse weather or eligible loss condition.
Sec. 760.205 Eligible producers, owners, and contract growers.
(a) To be considered an eligible livestock producer for livestock
feed losses and to receive payments, the participant must have owned,
cash-leased, purchased, entered into a contract to purchase, or been a
contract grower of eligible livestock during the 60 days prior to the
beginning date of the eligible adverse weather or eligible loss
condition and must have had a loss that is determined to be eligible as
specified in Sec. 760.203(d), and the producer's eligible livestock
must have been livestock that would normally have been grazing the
eligible grazing land or pastureland during the normal grazing period
for the specific type of grazing land or pastureland for the county as
specified in paragraph (b)(1)(i) or (ii) of this section.
(b) To be considered an eligible livestock producer for grazing
losses and to receive payments, the participant must have:
(1) Owned, cash-leased, purchased, entered into a contract to
purchase, or been a contract grower of eligible livestock during the 60
days prior to the beginning date of the eligible adverse weather or
eligible loss condition, must have had a loss that is determined to be
eligible as specified in Sec. 760.203(e), and the loss must have
occurred on land that is:
(i) Native or improved pastureland with permanent vegetative cover
or
(ii) Planted to a crop planted specifically for the purpose of
providing grazing for covered livestock;
(2) Have had eligible livestock that would normally have been
grazing the eligible grazing land or pastureland during the normal
grazing period for the specific type of grazing land or pastureland for
the county as specified in paragraph (b)(1)(i) or (ii) of this section;
(3) Provided for the eligible livestock pastureland or grazing land,
including cash leased pastureland or grazing land for covered livestock
that is physically located in the county where the eligible adverse
weather or loss condition occurred during the normal grazing period for
the county.
(c) For livestock death losses to be eligible the producer must have
had a loss that is determined to be eligible as specified in Sec.
760.203(f) and in addition to other eligibility rules that may apply to
be eligible as a:
(1) Livestock owner for the payment with respect to the death of an
animal
[[Page 81]]
under this subpart, the applicant must have had legal ownership of the
livestock on the day the livestock died and under conditions in which no
contract grower could have been eligible for ELAP payment with respect
to the animal. Eligible types of animal categories for which losses can
be calculated for an owner are specified in Sec. 760.204(d).
(2) Contract grower for ELAP payment with respect to the death of an
animal, the animal must be in one of the categories specified in Sec.
760.204(e), and the contract grower must have had:
(i) A written agreement with the owner of eligible livestock setting
the specific terms, conditions, and obligations of the parties involved
regarding the production of livestock;
(ii) Control of the eligible livestock on the day the livestock
died; and
(iii) A risk of loss in the animal.
(d) To be considered an eligible honeybee producer, a participant
must have an interest and risk in an eligible honeybee colony, as
specified in Sec. 760.204(g), for the purpose of producing honey or
pollination for commercial use as part of a farming operation and must
have had a loss that is determined to be eligible as specified in Sec.
760.203(g) or (h).
(e) To be considered an eligible farm-raised fish producer for feed
loss purposes, the participant must have produced eligible farm-raised
fish, as specified in Sec. 760.204(h)(1), with the intent to harvest
for commercial use as part of a farming operation and must have had a
loss that is determined to be eligible as specified in Sec. 760.203(g);
(f) A producer seeking payments must not be ineligible under the
restrictions applicable to foreign persons contained in Sec. 760.103(b)
and must meet all other requirements of subpart B and other applicable
USDA regulations.
Sec. 760.206 Notice of loss and application process.
(a) To apply for ELAP, the participant that suffered eligible
livestock, honeybee, or farm-raised fish losses must submit, to the FSA
administrative county office that maintains the participant's farm
records for the agricultural operation, the following:
(1) A notice of loss to FSA as specified in Sec. 760.207(a),
(2) A completed application as specified in Sec. 760.207(b) for one
or both of the following:
(i) For livestock feed, grazing and death losses, the participant
must submit a completed Emergency Loss Assistance for Livestock
Application;
(ii) For honeybee feed, honeybee colony, honeybee hive, or farm-
raised fish feed or death losses, the participant must submit a
completed Emergency Loss Assistance for Farm-Raised Fish or Honeybees
Application;
(3) A report of acreage;
(4) A copy of the participant's grower contract, if the participant
is a contract grower; and
(5) Other supporting documents required for FSA to determine
eligibility of the participant, livestock, and loss.
(b) For livestock, honeybee, or farm-raised fish feed losses,
participant must provide verifiable documentation of:
(1) Purchased feed intended as feed for livestock, honeybees, or
farm-raised fish that was lost, or additional feed purchased above
normal quantities to sustain livestock, honeybees, and farm-raised fish
for a short period of time until additional feed becomes available, due
to an eligible adverse weather or eligible loss condition. To be
considered acceptable documentation, the participant must provide
original feed receipts and each feed receipt must include the date of
feed purchase, name, address, and telephone number of feed vendor, type
and quantity of feed purchased, cost of feed purchased, and signature of
feed vendor if the vendor does not have a license to conduct this type
of transaction.
(2) Harvested feed intended as feed for livestock, honeybees, or
farm-raised fish that was lost due to an eligible adverse weather or
eligible loss condition. Documentation may include, but is not limited
to, weight tickets, truck scale tickets, contemporaneous diaries used to
verify that the crop was stored with the intent to feed the crop to
livestock, honeybees, or farm-raised fish, and custom harvest documents
that clearly identify the amount of feed produced from the applicable
acreage. Documentation must
[[Page 82]]
clearly identify the acreage from which the feed was produced.
(c) For eligible honeybee colony and honeybee hive losses and
eligible farm-raised fish losses, the participant must also provide
documentation of inventory on the beginning date of the eligible adverse
weather or loss condition and the ending inventory. Documentation may
include, but is not limited to, any combination of the following:
(1) A report of acreage,
(2) Loan records,
(3) Private insurance documents,
(4) Property tax records,
(5) Sales and purchase receipts,
(6) State colony registration documentation, and
(7) Chattel inspections.
(d) For the loss of honeybee colonies and honeybee hives due to
colony collapse disorder, the participant must also provide
documentation or certification that the loss of the honeybee colony or
honeybee hive was due to colony collapse disorder from an appropriate
third party, as determined by the Deputy Administrator, such as from a
registered entomologist, Cooperative Extension specialist, or Land Grant
University.
(e) For livestock death losses, the participant must provide
evidence of loss, current physical location of livestock in inventory,
and physical location of claimed livestock at the time of death. The
participant must provide:
(1) Documentation listing the quantity and kind of livestock that
died as a direct result of the eligible loss condition during the
calendar year for which payment is being requested, which must include:
Purchase records, veterinarian records, bank or other loan papers,
rendering truck receipts, Federal Emergency Management Agency records,
National Guard records, written contracts, production records, Internal
Revenue Service records, property tax records, private insurance
documents, or other similar verifiable documents as determined by FSA.
(2) Adequate proof that the death of the eligible livestock occurred
as a direct result of an eligible loss condition in the calendar year
for which payment is requested.
(3) If adequate verifiable proof of death documentation is not
available, the participant must provide reliable records, in conjunction
with verifiable beginning and ending inventory records, as proof of
death. Reliable records may include: Contemporaneous producer records,
dairy herd improvement records, brand inspection records, vaccination
records, pictures, and other similar reliable documents, as determined
by FSA.
(4) Certification of livestock deaths by third parties will be
acceptable for eligibility determination only if verifiable proof of
death records or reliable proof of death records in conjunction with
verifiable beginning and ending inventory records are not available and
both of the following conditions are met:
(i) The livestock owner or livestock contract grower, as applicable,
certifies in writing:
(A) That there is no other verifiable or reliable documentation of
death available;
(B) The number of livestock, by category as determined by FSA, was
in inventory at the time the applicable loss condition occurred;
(C) The physical location of the livestock, by category, in
inventory when the deaths occurred; and
(D) Any other details required for FSA to determine the
certification acceptable; and
(ii) The third party is an independent source who is not affiliated
with the farming operation such as a hired hand and is not a ``family
member,'' defined as a person to whom a member in the farming operation
or their spouse is related as a lineal ancestor, lineal descendant,
sibling, spouse, or otherwise by marriage, and provides their telephone
number, address, and a written statement containing specific details
about:
(A) Their knowledge of the livestock deaths;
(B) Their affiliation with the livestock owner;
(C) The accuracy of the deaths claimed by the livestock owner or
contract grower including, but not limited to, the number and kind or
type of the participant's livestock that died because of the eligible
loss condition; and
[[Page 83]]
(D) Any other information required for FSA to determine the
certification acceptable.
(f) FSA will use the data furnished by the participant and the third
party to determine eligibility for program payment. Furnishing the data
is voluntary; however, without all required data program, payment will
not be approved or provided.
Sec. 760.207 Notice of loss and application period.
(a) In addition to submitting an application for payment at the
appropriate time, the participant that suffered eligible livestock,
honeybee, or farm-raised fish losses that create or could create a claim
for benefits must:
(1) For losses during calendar year 2008 and in calendar year 2009
prior to September 11, 2009, provide a notice of loss to FSA no later
than December 10, 2009;
(2) For losses on or after September 11, 2009, the participant must
provide a notice of loss to FSA within the earlier of:
(i) 30 calendar days of when the loss is apparent to the participant
or
(ii) 30 calendar days after the end of the calendar year in which
the loss occurred.
(3) The participant must submit the notice of loss required in
paragraphs (a)(1) and (a)(2) of this section to the administrative FSA
county office
(b) In addition to the notices of loss required in paragraph (a) of
this section, a participant must also submit a completed application for
payment no later than:
(1) 30 calendar days after the end of the calendar year in which the
loss occurred or
(2) December 10, 2009 for losses that occurred during 2008.
Sec. 760.208 Availability of funds.
By law, ``up to'' $50 million per year for the years in question may
be approved for use by the Secretary and accordingly, within that cap,
the only funds that will be considered available to pay claims will be
that amount approved by the Secretary. Nothing in these regulations will
limit the ability of the Secretary to restrict the availability of funds
for the program as permitted by the relevant legislation. Payments will
not be made for claims arising out of a particular year until, for all
claims for that year, the time for applying for a payment has passed. In
the event that, within the limits of the funding made available by the
Secretary within the statutory cap, approval of eligible applications
would result in expenditures in excess of the amount available, FSA will
prorate the available funds by a national factor to reduce the total
expected payments to the amount made available by the Secretary. FSA
will make payments based on the factor for the national rate determined
by FSA. FSA will prorate the payments in such manner as it determines
appropriate and reasonable. Claims that are unpaid or prorated for a
calendar year for any reason will not be carried forward for payment
under other funds for later years or otherwise, but will be considered,
as to any unpaid amount, void and nonpayable.
Sec. 760.209 Livestock payment calculations.
(a) Payments for an eligible livestock producer will be calculated
based on losses for no more than 90 days during the calendar year.
Payment calculations for feed losses will be based on 60 percent of the
producer's actual cost for:
(1) Livestock feed that was purchased forage or feedstuffs intended
for use as feed for the participant's eligible livestock that was
physically damaged or destroyed due to the direct result of an eligible
adverse weather or eligible loss condition, as provided in Sec.
760.203(d)(1);
(2) Livestock feed that was mechanically harvested forage or
feedstuffs intended for use as feed for the participant's eligible
livestock that was physically damaged or destroyed after harvest due to
the direct result of an eligible adverse weather or eligible loss
condition, as provided in Sec. 760.203(d)(2);
(3) The additional cost incurred for providing or transporting
livestock feed to eligible livestock due to an eligible adverse weather
or eligible loss condition, as provided in Sec. 760.203(d)(3); or
(4) The additional cost of purchasing additional livestock feed
above normal,
[[Page 84]]
to maintain the eligible livestock during an eligible adverse weather or
eligible loss condition until additional livestock feed becomes
available, as provided in Sec. 760.203(d)(4).
(b) Payments for an eligible livestock producer for grazing losses,
except for losses due to wildfires on non-Federal land, will be
calculated based on 60 percent of the lesser of:
(1) The total value of the feed cost for all covered livestock owned
by the eligible livestock producer based on the number of days grazing
was lost, not to exceed 90 days of daily feed cost for all covered
livestock, or
(2) The total value of grazing lost for all eligible livestock based
on the normal carrying capacity, as determined by the Secretary, of the
eligible grazing land of the eligible livestock producer for the number
of grazing days lost, not to exceed 90 days of lost grazing.
(c) The total value of feed cost to be used in the calculation for
paragraph (b)(1) of this section is based on the number of days grazing
was lost and equals the product obtained by multiplying:
(1) A payment quantity equal to the feed grain equivalent, as
determined in paragraph (d) of this section;
(2) A payment rate equal to the corn price per pound, as determined
in paragraph (e) of this section;
(3) The number of all covered livestock owned by the eligible
producer converted to an animal unit basis;
(4) The number of days grazing was lost, not to exceed 90 calendar
days during the normal grazing period for the specific type of grazing
land; and
(5) The producer's ownership share in the livestock.
(d) The feed grain equivalent to be used in the calculation for
paragraph (c)(1) of this section equals, in the case of:
(1) An adult beef cow, 15.7 pounds of corn per day or
(2) Any other type or weight of livestock, an amount determined by
the Secretary that represents the average number of pounds of corn per
day necessary to feed that specific type of livestock.
(e) The corn price per pound to be used in the calculation for
paragraph (c)(2) of this section equals the quotient obtained by
dividing:
(1) The higher of:
(i) The national average corn price per bushel of corn for the 12-
month period immediately preceding March 1 of the calendar year for
which payments are calculated; or
(ii) The national average corn price per bushel of corn for the 24-
month period immediately preceding March 1 of the calendar year for
which payments are calculated; by
(2) 56.
(f) The total value of grazing lost to be used in the calculation
for paragraph (b)(2) of this section equals the product obtained by
multiplying:
(1) A payment quantity equal to the feed grain equivalent of 15.7
pounds of corn per day;
(2) A payment rate equal to the corn price per pound, as determined
in paragraph (e) of this section;
(3) The number of animal units the eligible livestock producer's
grazing land or pastureland can sustain during the normal grazing period
in the county for the specific type of grazing land or pastureland, in
the absence of an eligible adverse weather or eligible loss condition,
determined by dividing the:
(i) Number of eligible grazing land or pastureland acres of the
specific type of grazing land or pastureland by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland; and
(4) The number of days grazing was lost, not to exceed 90 calendar
days during the normal grazing period for the specific type of grazing
land.
(g) Payments for an eligible livestock producer for grazing losses
due to a wildfire on non-Federal land will be calculated by multiplying:
(1) The result of dividing:
(i) The number of acres of grazing land or pastureland acres
affected by the fire by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland; times
(2) The daily value of grazing as calculated by FSA under this
section; times
(3) The number of days grazing was lost due to fire, not to exceed
180 calendar days; times
[[Page 85]]
(4) 50 percent.
(h) Payments for an eligible livestock producer for eligible
livestock death losses due to an eligible loss condition will be based
on the following:
(1) Payments will be calculated by multiplying:
(i) The national payment rate for each livestock category times
(ii) The number of eligible livestock that died in each category as
a result of an eligible loss condition in excess of normal mortality, as
determined in paragraph (d)(2) of this section;
(2) Normal mortality for each livestock category as determined by
FSA on a statewide basis using local data sources including, but not
limited to, State livestock organizations and the Cooperative Extension
Service for the State.
(3) National payment rates to be used in the calculation for
paragraph (b)(1) of this section for eligible livestock owners and
eligible livestock contract growers are:
(i) A national payment rate for eligible livestock owners that is
based on 75 percent of the average fair market value of the applicable
livestock as computed using nationwide prices for the previous calendar
year unless some other price is approved by the Deputy Administrator.
(ii) A national payment rate for eligible livestock contract growers
that is based on 75 percent of the relevant average income loss
sustained by the contract grower, with respect to the dead livestock.
(i) Payments calculated in this section are subject to the
adjustments and limits provided for in this part.
Sec. 760.210 Honeybee payment calculations.
(a) An eligible honeybee producer may receive payments for honeybee
feed losses due to an eligible adverse weather or loss condition, as
provided in Sec. 760.203(g), based on 60 percent of the producer's
actual cost for honeybee feed that was:
(1) Damaged or destroyed due to an eligible adverse weather or
eligible loss condition and
(2) Intended as feed for an eligible honeybee colony, as provided in
Sec. 760.204(g);
(b) An eligible honeybee producer may receive payments for honeybee
colony losses due to an eligible adverse weather or eligible loss
condition, as provided in Sec. 760.203(h), based on 60 percent of the
producer's actual replacement cost for a honeybee colony that was
damaged or destroyed due to an eligible adverse weather or eligible loss
condition.
(c) An eligible honeybee producer may receive payments for honeybee
hive losses due to an eligible adverse weather or eligible loss
condition, as provided in Sec. 760.203(h), based on 60 percent of the
producer's actual replacement cost for a honeybee colony that was
damaged or destroyed due to an eligible adverse weather or eligible loss
condition.
(d) Payments calculated in this section are subject to the
adjustments and limits provided for in this part.
Sec. 760.211 Farm-raised fish payment calculations.
(a) An eligible farm-raised fish producer may receive payments for
fish feed losses due to an eligible adverse weather or eligible loss
condition, as provided in Sec. 760.203(g), based on 60 percent of the
producer's actual replacement cost for the fish feed that was:
(1) Damaged or destroyed due to an eligible adverse weather or
eligible loss condition and
(2) Intended as feed for the eligible farm-raised fish, as provided
in Sec. 760.204(h)(1).
(b) An eligible producer of farm-raised game or sport fish may
receive payments for death losses of farm-raised fish due to an eligible
adverse weather or eligible loss condition, as provided in Sec.
760.203(i), based on 60 percent of the producer's actual replacement
cost of the game or sport fish that died as a direct result of an
eligible adverse weather or eligible loss condition.
(c) Payments calculated in this section or elsewhere with respect to
ELAP are subject to the adjustments and limits provided for in this part
and are also subject to the payment limitations and average adjusted
gross income limitations that are contained in subpart B.
[[Page 86]]
Subpart D_Livestock Forage Disaster Program
Source: 74 FR 46680, Sept. 11, 2009, unless otherwise noted.
Sec. 760.301 Applicability.
(a) This subpart establishes the terms and conditions under which
the Livestock Forage Disaster Program (LFP) will be administered.
(b) Eligible livestock producers will be compensated for eligible
grazing losses for covered livestock that occur due to a qualifying
drought or fire that occurs:
(1) On or after January 1, 2008, and before October 1, 2011, and
(2) In the calendar year for which benefits are being requested.
Sec. 760.302 Definitions.
The following definitions apply to this subpart and to the
administration of LFP. The definitions in parts 718 and 1400 of this
title also apply, except where they conflict with the definitions in
this section.
Adult beef bull means a male beef breed bovine animal that was at
least 2 years old and used for breeding purposes on or before the
beginning date of a qualifying drought or fire.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring. A first-time bred beef heifer is also
considered an adult beef cow if it was pregnant on or before the
beginning date of a qualifying drought or fire.
Adult buffalo and beefalo bull means a male animal of those breeds
that was at least 2 years old and used for breeding purposes on or
before the beginning date of a qualifying drought or fire.
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring. A first-time bred buffalo or
beefalo heifer is also considered an adult buffalo or beefalo cow if it
was pregnant on or before the beginning date of a qualifying drought or
fire.
Adult dairy bull means a male dairy breed bovine animal at least 2
years old used primarily for breeding dairy cows on or before the
beginning date of a qualifying drought or fire.
Adult dairy cow means a female dairy breed bovine animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring. A first-time bred dairy heifer is also considered
an adult dairy cow if it was pregnant on or before the beginning date of
a qualifying drought or fire.
Agricultural operation means a farming operation.
Application means the ``Livestock Forage Disaster Program'' form.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible livestock
producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Covered livestock means livestock of an eligible livestock producer
that, during the 60 days prior to the beginning date of a qualifying
drought or fire, the eligible livestock producer owned, leased,
purchased, entered into a contract to purchase, was a contract grower
of, or sold or otherwise disposed of due to a qualifying drought during
the current production year. It includes livestock that the producer
otherwise disposed of due to drought in one or both of the two
production years immediately preceding the current production year as
determined by the Secretary. Notwithstanding the foregoing portions of
this definition, covered livestock for ``contract growers'' will not
include livestock in feedlots. ``Contract growers'' under LFP will only
include producers of livestock not in feedlots whose income is dependent
on the actual weight gain and survival of the livestock.
Equine animal means a domesticated horse, mule, or donkey.
Farming operation means a business enterprise engaged in producing
agricultural products.
Federal Agency means, with respect to the control of grazing land,
an agency of the Federal government that manages rangeland on which
livestock is generally permitted to graze. For the
[[Page 87]]
purposes of this section, it includes, but is not limited to, the U.S.
Department of the Interior (DOI) Bureau of Indian Affairs (BIA), DOI
Bureau of Land Management (BLM), and USDA Forest Service (FS).
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats.
Non-adult beef cattle means a beef breed bovine animal that weighed
500 pounds or more on or before the beginning date of a qualifying
drought or fire but that does not meet the definition of adult beef cow
or bull.
Non-adult buffalo or beefalo means an animal of those breeds that
weighed 500 pounds or more on or before the beginning date of a
qualifying drought or fire, but does not meet the definition of adult
buffalo or beefalo cow or bull.
Non-adult dairy cattle means a bovine animal, of a breed used for
the purpose of providing milk for human consumption, that weighed 500
pounds or more on or before the beginning date of a qualifying drought
or fire, but that does not meet the definition of adult dairy cow or
bull.
Normal carrying capacity means, with respect to each type of grazing
land or pastureland in a county, the normal carrying capacity that would
be expected from the grazing land or pastureland for livestock during
the normal grazing period in the county, in the absence of a drought or
fire that diminishes the production of the grazing land or pastureland.
Normal grazing period means, with respect to a county, the normal
grazing period during the calendar year with respect to each specific
type of grazing land or pastureland in the county served by the
applicable county committee.
Owner means one who had legal ownership of the livestock for which
benefits are being requested during the 60 days prior to the beginning
of a qualifying drought or fire.
Poultry means a domesticated chicken, turkey, duck, or goose.
Poultry are further delineated by sex, age, and purpose of production,
as determined by FSA.
Sheep means a domesticated, ruminant mammal of the genus Ovis.
Swine means a domesticated omnivorous pig, hog, or boar. Swine are
further delineated by sex and weight, as determined by FSA.
U.S. Drought Monitor is a system for classifying drought severity
according to a range of abnormally dry to exceptional drought. It is a
collaborative effort between Federal and academic partners, produced on
a weekly basis, to synthesize multiple indices, outlooks, and drought
impacts on a map and in narrative form. This synthesis of indices is
reported by the National Drought Mitigation Center at http://
www.drought.unl.edu/dm/monitor.html.
Sec. 760.303 Eligible livestock producer.
(a) To be considered an eligible livestock producer, the eligible
producer on a farm must:
(1) During the 60 days prior to the beginning date of a qualifying
drought or fire, own, cash or share lease, or be a contract grower of
covered livestock or
(2) Provide pastureland or grazing land for covered livestock,
including cash-leased pastureland or grazing land, that is:
(i) Physically located in a county affected by a qualifying drought
during the normal grazing period for the county or
(ii) Rangeland managed by a Federal agency for which the otherwise
eligible livestock producer is prohibited by the Federal agency from
grazing the normal permitted livestock due to a qualifying fire.
(b) The eligible livestock producer must have certified that the
livestock producer has suffered a grazing loss due to a qualifying
drought or fire to be eligible for LFP payments.
(c) An eligible livestock producer does not include any owner, cash
or share lessee, or contract grower of livestock that rents or leases
pastureland or grazing land owned by another person on a rate-of-gain
basis. (That is, where the lease or rental agreement calls for payment
based in whole or in part on the amount of weight gained by the animals
that use the pastureland or grazing land.)
(d) A producer seeking payment must not be ineligible for payments
under the restrictions applicable to foreign persons contained in Sec.
760.103(b) and
[[Page 88]]
must meet all other requirements of subpart B and other applicable USDA
regulations.
(e) If a contract grower is an eligible livestock producer for
covered livestock, the owner of that livestock is not eligible for
payment.
Sec. 760.304 Covered livestock.
(a) To be considered covered livestock for LFP payments, livestock
must meet all the following conditions:
(1) Be adult or non-adult beef cattle, adult or non-adult beefalo,
adult or non-adult buffalo, adult or non-adult dairy cattle, alpacas,
deer, elk, emus, equine, goats, llamas, poultry, reindeer, sheep, or
swine;
(2) Be livestock that would normally have been grazing the eligible
grazing land or pastureland on the beginning date:
(i) Of the qualifying drought during the normal grazing period for
the specific type of grazing land or pastureland for the county or
(ii) When the Federal agency prohibited the eligible livestock
producer from using the managed rangeland for grazing due to a fire;
(3) Be livestock that the eligible livestock producer:
(i) During the 60 days prior to the beginning date of a qualifying
drought or fire:
(A) Owned,
(B) Leased,
(C) Purchased,
(D) Entered into a contract to purchase, or
(E) Was a contract grower of; or
(ii) Sold or otherwise disposed of due to qualifying drought during:
(A) The current production year or
(B) 1 or both of the 2 production years immediately preceding the
current production year;
(4) Been maintained for commercial use as part of the producer's
farming operation on the beginning date of the qualifying drought or
fire;
(5) Not have been produced and maintained for reasons other than
commercial use as part of a farming operation. Such excluded uses
include, but are not limited to, any uses of wild free roaming animals
or use of the animals for recreational purposes, such as pleasure,
roping, hunting, pets, or for show; and
(6) Not have been livestock that were or would have been in a
feedlot, on the beginning date of the qualifying drought or fire, as a
part of the normal business operation of the eligible livestock
producer, as determined by the Secretary.
(b) The covered livestock categories are:
(1) Adult beef cows or bulls,
(2) Adult buffalo or beefalo cows or bulls,
(3) Adult dairy cows or bulls,
(4) Alpacas,
(5) Deer,
(6) Elk,
(7) Emu,
(8) Equine,
(9) Goats,
(10) Llamas,
(11) Non-adult beef cattle,
(12) Non-adult buffalo or beefalo,
(13) Non-adult dairy cattle,
(14) Poultry,
(15) Reindeer,
(16) Sheep, and
(17) Swine.
(c) Livestock that are not covered include, but are not limited to:
(1) Livestock that were or would have been in a feedlot, on the
beginning date of the qualifying drought or fire, as a part of the
normal business operation of the eligible livestock producer, as
determined by the Secretary;
(2) Yaks;
(3) Ostriches;
(4) All beef and dairy cattle, and buffalo and beefalo that weighed
less than 500 pounds on the beginning date of the qualifying drought or
fire;
(5) Any wild free roaming livestock, including horses and deer; and
(6) Livestock produced or maintained for reasons other than
commercial use as part of a farming operation, including, but not
limited to, livestock produced or maintained for recreational purposes,
such as:
(i) Roping,
(ii) Hunting,
(iii) Show,
(iv) Pleasure,
(v) Use as pets, or
(vi) Consumption by owner.
Sec. 760.305 Eligible grazing losses.
(a) A grazing loss due to drought is eligible for LFP only if the
grazing loss
[[Page 89]]
for the covered livestock occurs on land that:
(1) Is native or improved pastureland with permanent vegetative
cover or
(2) Is planted to a crop planted specifically for the purpose of
providing grazing for covered livestock; and
(3) Is grazing land or pastureland that is owned or leased by the
eligible livestock producer that is physically located in a county that
is, during the normal grazing period for the specific type of grazing
land or pastureland for the county, rated by the U.S. Drought Monitor as
having a:
(i) D2 (severe drought) intensity in any area of the county for at
least 8 consecutive weeks during the normal grazing period for the
specific type of grazing land or pastureland for the county, as
determined by the Secretary, or
(ii) D3 (extreme drought) or D4 (exceptional drought) intensity in
any area of the county at any time during the normal grazing period for
the specific type of grazing land or pastureland for the county, as
determined by the Secretary. (As specified elsewhere in this subpart,
the amount of potential payment eligibility will be higher than under
(a)(3)(i) of this section where the D4 trigger applies or where the D3
condition as determined by the Secretary lasts at least 4 weeks during
the normal grazing period for the specific type of grazing land or
pastureland for the county.)
(b) A grazing loss is not eligible for LFP if the grazing loss due
to drought on land used for haying or grazing under the Conservation
Reserve Program established under subchapter B of chapter 1 of subtitle
D of title XII of the Food Security Act of 1985 (16 U.S.C. 3831-3835a).
(c) A fire qualifies for LFP only if:
(1) The grazing loss occurs on rangeland that is managed by a
Federal agency and
(2) The eligible livestock producer is prohibited by the Federal
agency from grazing the normal permitted livestock on the managed
rangeland due to a fire.
(d) An eligible livestock producer may be eligible for LFP payments
only on those grazing lands incurring losses for which the livestock
producer:
(1) Meets the risk management purchase requirements specified in
Sec. 760.104; or
(2) Does not meet the risk management purchase requirements
specified in Sec. 760.104 because the risk management purchase
requirement is waived according to Sec. Sec. 760.105, 760.106, or
760.107.
Sec. 760.306 Application for payment.
(a) To apply for LFP, the participant that suffered eligible grazing
losses:
(1) During 2008, must submit a completed application for payment and
required supporting documentation to the administrative FSA county
office no later than December 10, 2009 or
(2) During 2009 and later years, must submit a completed application
for payment and required supporting documentation to the administrative
FSA county office no later than 30 calendar days after the end of the
calendar year in which the grazing loss occurred.
(b) A participant must also provide a copy of the grower contract,
if a contract grower, and other supporting documents required for
determining eligibility as an applicant at the time the participant
submits the completed application for payment. Supporting documents must
include:
(1) Evidence of loss,
(2) Current physical location of livestock in inventory,
(3) Evidence of meeting risk management purchase requirements as
specified in subpart B,
(4) Evidence that grazing land or pastureland is owned or leased,
(5) A report of acreage according to part 718 of this chapter for
the grazing lands incurring losses for which assistance is being
requested under this subpart;
(6) Adequate proof, as determined by FSA that the grazing loss:
(i) Was for the covered livestock;
(ii) If the loss of grazing occurred as the result of a fire that
the:
(A) Loss was due to a fire and
(B) Participant was prohibited by the Federal agency from grazing
the normal permitted livestock on the managed rangeland due to a fire;
(iii) Occurred on or after January 1, 2008, and before October 1,
2011; and
[[Page 90]]
(iv) Occurred in the calendar year for which payments are being
requested;
(7) Adequate proof, absent an appropriate waiver (if there is a
waiver, it itself must be documented by the producer), as determined by
FSA, that the participant had obtained, for the grazing land incurring
the losses for which assistance is being requested, one or both of the
following:
(i) A policy or plan of insurance under the Federal Crop Insurance
Act (7 U.S.C. 1501-1524); or
(ii) Filed the required paperwork, and paid the administrative fee
by the applicable State filing deadline, for the noninsured crop
disaster assistance program;
(8) Any other supporting documentation as determined by FSA to be
necessary to make a determination of eligibility of the participant.
Supporting documents include, but are not limited to: Verifiable
purchase and sales records; grower contracts; veterinarian records; bank
or other loan papers; rendering truck receipts; Federal Emergency
Management Records; National Guard records; written contracts;
production records; private insurance documents; sales records; and
similar documents determined acceptable to FSA.
(c) Data furnished by the participant will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, without all required data, program benefits will not be
approved or provided.
Sec. 760.307 Payment calculation.
(a) An eligible livestock producer will be eligible to receive
payments for grazing losses for qualifying drought as specified in Sec.
760.305(a) equal to one, two, or three times the monthly payment rate
specified in paragraphs (e) or (f) of this section. Total LFP payments
to an eligible livestock producer in a calendar year for grazing losses
due to qualifying drought will not exceed three monthly payments for the
same livestock. Payments calculated in this section or elsewhere with
respect to LFP are subject to the adjustments and limits provided for in
this part and are also subject to the payment limitations and average
adjusted gross income provisions that are contained in subpart B.
Payment may only be made to the extent that eligibility is specifically
provided for in this subpart. Hence, with respect to drought, payments
will be made only as a ``one month'' payment, a ``two month'' payment,
or a ``three month'' payment based on the provisions of paragraphs (b),
(c), and (d) of this section.
(b) To be eligible to receive a one month payment, that is a payment
equal to the monthly feed cost as determined under paragraph (g) of this
section, the eligible livestock producer must own or lease grazing land
or pastureland that is physically located in a county that is rated by
the U.S. Drought Monitor as having at least a D2 severe drought
(intensity) in any area of the county for at least 8 consecutive weeks
during the normal grazing period for the specific type of grazing land
or pastureland in the county.
(c) To be eligible to receive a two month payment, that is a payment
equal to twice the monthly feed cost as determined under paragraph (g)
of this section, the eligible livestock producer must own or lease
grazing land or pastureland that is physically located in a county that
is rated by the U.S. Drought Monitor as having at least a D3 (extreme
drought) intensity in any area of the county at any time during the
normal grazing period for the specific type of grazing land or
pastureland for the county.
(d) To be eligible to receive a three month payment, that is a
payment equal to three times the monthly feed cost as determined under
paragraph (g) of this section, the eligible livestock producer must own
or lease grazing land or pastureland that is physically located in a
county that is rated by the U.S. Drought Monitor as having at least a D3
(extreme drought) intensity in any area of the county for at least 4
weeks during the normal grazing period for the specific type of grazing
land or pastureland for the county, or is rated as having a D4
(exceptional drought) intensity in any area of the county at any time
during the normal grazing period for the specific type of grazing land
or pastureland for the county.
(e) The monthly payment rate for LFP for grazing losses due to a
qualifying drought, except as provided in
[[Page 91]]
paragraph (f) of this section, will be equal to 60 percent of the lesser
of:
(1) The monthly feed cost for all covered livestock owned or leased
by the eligible livestock producer, as determined in paragraph (g) of
this section or
(2) The monthly feed cost calculated by using the normal carrying
capacity of the eligible grazing land of the eligible livestock
producer, as determined in paragraph (j) of this section.
(f) In the case of an eligible livestock producer that sold or
otherwise disposed of covered livestock due to a qualifying drought in 1
or both of the 2 production years immediately preceding the current
production year, the payment rate is 80 percent of the monthly payment
rate calculated in paragraph (e) of this section.
(g) The monthly feed cost for covered livestock equals the product
obtained by multiplying:
(1) 30 days;
(2) A payment quantity equal to the amount referred to in paragraph
(h) of this section as the ``feed grain equivalent'', as determined
under paragraph (h) of this section; and
(3) A payment rate equal to the corn price per pound, as determined
in paragraph (i) of this section.
(h) The feed grain equivalent equals, in the case of:
(1) An adult beef cow, 15.7 pounds of corn per day or
(2) In the case of any other type or weight of covered livestock, an
amount determined by the Secretary that represents the average number of
pounds of corn per day necessary to feed that specific type of
livestock.
(i) The corn price per pound equals the quotient obtained by
dividing:
(1) The higher of:
(i) The national average corn price per bushel for the 12-month
period immediately preceding March 1 of the calendar year for which LFP
payment is calculated or
(ii) The national average corn price per bushel for the 24-month
period immediately preceding March 1 of the calendar year for which LFP
payment is calculated
(2) By 56.
(j) The monthly feed cost using the normal carrying capacity of the
eligible grazing land equals the product obtained by multiplying:
(1) 30 days;
(2) A payment quantity equal to the feed grain equivalent of 15.7
pounds of corn per day;
(3) A payment rate equal to the corn price per pound, as determined
in paragraph (i) of this section; and
(4) The number of animal units the eligible livestock producer's
grazing land or pastureland can sustain during the normal grazing period
in the county for the specific type of grazing land or pastureland, in
the absence of a drought or fire, determined by dividing the:
(i) Number of eligible grazing land or pastureland acres of the
specific type of grazing land or pastureland by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland as determined under this subpart.
(k) An eligible livestock producer will be eligible to receive
payments for grazing losses due to a fire as specified in Sec.
760.305(c):
(1) For the period, subject to paragraph (l)(2) of this section:
(i) Beginning on the date on which the Federal Agency prohibits the
eligible livestock producer from using the managed rangeland for grazing
and
(ii) Ending on the earlier of the last day of the Federal lease of
the eligible livestock producer or the day that would make the period a
180 day period and
(2) For grazing losses that occur on not more than 180 days per
calendar year.
(3) For 50 percent of the monthly feed cost, as determined under
Sec. 760.308(g), pro-rated to a daily rate, for the total number of
livestock covered by the Federal lease of the eligible livestock
producer.
Subpart E_Livestock Indemnity Program
Source: 74 FR 31575, July 2, 2009, unless otherwise noted.
Sec. 760.401 Applicability.
(a) This subpart establishes the terms and conditions under which
the Livestock Indemnity Program (LIP)
[[Page 92]]
will be administered under Titles XII and XV of the 2008 Farm Bill (Pub.
L. 110-246).
(b) Eligible livestock owners and contract growers will be
compensated in accordance with Sec. 760.406 for eligible livestock
deaths in excess of normal mortality that occurred in the calendar year
for which benefits are being requested as a direct result of an eligible
adverse weather event. An ``eligible adverse weather event'' is one, as
determined by the Secretary, occurring in the program year that could
and did, even when normal preventative or corrective measures were taken
and good farming practices were followed, directly result in the death
of livestock. Because feed can be purchased or otherwise obtained in the
event of a drought, drought is not an eligible adverse weather event
except when anthrax, resulting from drought, causes the death of
eligible livestock.
Sec. 760.402 Definitions.
The following definitions apply to this subpart. The definitions in
parts 718 and 1400 of this title also apply, except where they conflict
with the definitions in this section.
Adult beef bull means a male beef breed bovine animal that was at
least 2 years old and used for breeding purposes before it died.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring before dying. A first-time bred beef
heifer is also considered an adult beef cow if it was pregnant at the
time it died.
Adult buffalo and beefalo bull means a male animal of those breeds
that was at least 2 years old and used for breeding purposes before it
died.
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring before dying. A first-time bred
buffalo or beefalo heifer is also considered an adult buffalo or beefalo
cow if it was pregnant at the time it died.
Adult dairy bull means a male dairy breed bovine animal at least 2
years old used primarily for breeding dairy cows before it died.
Adult dairy cow means a female bovine dairy breed animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring before dying. A first-time bred dairy heifer is
also considered an adult dairy cow if it was pregnant at the time it
died.
Adverse weather means damaging weather events, including, but not
limited to, hurricanes, floods, blizzards, disease, wildfires, extreme
heat, and extreme cold.
Agricultural operation means a farming operation.
Application means the ``Livestock Indemnity Program'' form.
Buck means a male goat.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Deputy Administrator or DAFP means the Deputy Administrator for Farm
Programs, Farm Service Agency, U.S. Department of Agriculture or the
designee.
Equine animal means a domesticated horse, mule, or donkey.
Ewe means a female sheep.
Farming operation means a business enterprise engaged in producing
agricultural products.
FSA means the Farm Service Agency.
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats. Goats are further defined by sex (bucks and
nannies) and age (kids).
Kid means a goat less than 1 year old.
Lamb means a sheep less than 1 year old.
Livestock owner means one having legal ownership of the livestock
for which benefits are being requested on the day such livestock died.
Nanny means a female goat.
Non-adult beef cattle means a beef breed bovine animal that does not
meet the definition of adult beef cow or bull. Non-adult beef cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died.
[[Page 93]]
Non-adult buffalo or beefalo means an animal of those breeds that
does not meet the definition of adult buffalo or beefalo cow or bull.
Non-adult buffalo or beefalo are further delineated by weight categories
of either less than 400 pounds or 400 pounds or more at the time of
death.
Non-adult dairy cattle means a dairy breed bovine animal, of a breed
used for the purpose of providing milk for human consumption, that does
not meet the definition of adult dairy cow or bull. Non-adult dairy
cattle are further delineated by weight categories of either less than
400 pounds or 400 pounds or more at the time they died.
Normal mortality means the numerical amount, computed by a
percentage, as established for the area by the FSA State Committee, of
expected livestock deaths, by category, that normally occur during a
calendar year for a producer.
Poultry means domesticated chickens, turkeys, ducks, and geese.
Poultry are further delineated by sex, age, and purpose of production as
determined by FSA.
Ram means a male sheep.
Secretary means the Secretary of Agriculture or a designee of the
Secretary.
Sheep means a domesticated, ruminant mammal of the genus Ovis. Sheep
are further defined by sex (rams and ewes) and age (lambs) for purposes
of dividing into categories for loss calculations.
State committee, State office, county committee, or county office
means the respective FSA committee or office.
Swine means a domesticated omnivorous pig, hog, or boar. Swine for
purposes of dividing into categories for loss calculations are further
delineated by sex and weight as determined by FSA.
United States means all fifty States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and the District
of Columbia.
Sec. 760.403 Eligible owners and contract growers.
(a) In addition to other eligibility rules that may apply, to be
eligible as a:
(1) Livestock owner for benefits with respect to the death of an
animal under this subpart, the applicant must have had legal ownership
of the eligible livestock on the day the livestock died and under
conditions in which no contract grower could have been eligible for
benefits with respect to the animal. Eligible types of animal categories
for which losses can be calculated for an owner are specified in Sec.
760.404(a).
(2) Contract grower for benefits with respect to the death of an
animal, the animal must be in one of the categories specified on Sec.
760.404(b), and the contract grower must have had
(i) A written agreement with the owner of eligible livestock setting
the specific terms, conditions, and obligations of the parties involved
regarding the production of livestock;
(ii) Control of the eligible livestock on the day the livestock
died; and
(iii) A risk of loss in the animal.
(b) A producer seeking payment must not be ineligible under the
restrictions applicable to foreign persons contained in Sec. 760.103(b)
and must meet all other requirements of subpart B and other applicable
USDA regulations.
Sec. 760.404 Eligible livestock.
(a) To be considered eligible livestock for livestock owners, the
kind of livestock must be alpacas, adult or non-adult dairy cattle, beef
cattle, buffalo, beefalo, elk, emus, equine, llamas, sheep, goats,
swine, poultry, deer, or reindeer and meet all the conditions in
paragraph (c) of this section.
(b) To be considered eligible livestock for contract growers, the
kind of livestock must be poultry or swine as defined in Sec. 760.402
and meet all the conditions in paragraph (c) of this section.
(c) To be considered eligible livestock for the purpose of
generating payments under this subpart, livestock must meet all of the
following conditions:
(1) Died as a direct result of an eligible adverse weather event:
(i) On or after January 1, 2008, but before October 1, 2011,
(ii) No later than 60 calendar days from the ending date of the
applicable adverse weather event, but before October 1, 2011, and
[[Page 94]]
(iii) In the calendar year for which benefits are being requested;
(2) Been maintained for commercial use as part of a farming
operation on the day they died; and
(3) Before dying, not have been produced or maintained for reasons
other than commercial use as part of a farming operation, such non-
eligible uses being understood to include, but not be limited to, any
uses of wild free roaming animals or use of the animals for recreational
purposes, such as pleasure, hunting, roping, pets, or for show.
(d) The following categories of animals owned by a livestock owner
are eligible livestock and calculations of eligibility for payments will
be calculated separately for each producer with respect to each
category:
(1) Adult beef bulls;
(2) Adult beef cows;
(3) Adult buffalo or beefalo bulls;
(4) Adult buffalo or beefalo cows;
(5) Adult dairy bulls;
(6) Adult dairy cows;
(7) Alpacas;
(8) Chickens, broilers, pullets;
(9) Chickens, chicks;
(10) Chickens, layers, roasters;
(11) Deer;
(12) Ducks;
(13) Ducks, ducklings;
(14) Elk;
(15) Emus;
(16) Equine;
(17) Geese, goose;
(18) Geese, gosling;
(19) Goats, bucks;
(20) Goats, nannies;
(21) Goats, kids;
(22) Llamas;
(23) Non-adult beef cattle;
(24) Non-adult buffalo or beefalo;
(25) Non-adult dairy cattle;
(26) Reindeer;
(27) Sheep, ewes;
(28) Sheep, lambs;
(29) Sheep, rams;
(30) Swine, feeder pigs under 50 pounds;
(31) Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(32) Swine, sows, boars, barrows, gilts over 150 pounds;
(33) Turkeys, poults; and
(34) Turkeys, toms, fryers, and roasters.
(e) The following categories of animals are eligible livestock for
contract growers and calculations of eligibility for payments will be
calculated separately for each producer with respect to each category:
(1) Chickens, broilers, pullets;
(2) Chickens, layers, roasters;
(3) Geese, goose;
(4) Swine, boars, sows;
(5) Swine, feeder pigs;
(6) Swine, lightweight barrows, gilts;
(7) Swine, sows, boars, barrows, gilts; and
(8) Turkeys, toms, fryers, and roasters.
Sec. 760.405 Application process.
(a) In addition to submitting an application for payment at the
appropriate time, a producer or contract grower that suffered livestock
losses that create or could create a claim for benefits must:
(1) For losses during 2008 and losses in 2009, prior to July 13,
2009, provide a notice of loss to FSA no later than September 13, 2009.
(2) For losses on or after July 13, 2009, provide a notice of loss
to FSA within the earlier of:
(i) 30 calendar days of when the loss of livestock is apparent to
the participant or
(ii) 30 calendar days after the end of the calendar year in which
the loss of livestock occurred.
(3) The participant must submit the notice of loss required in
paragraphs (a)(1) and (a)(2) to the FSA administrative county office
that maintains the participant's farm records for the agricultural
operation.
(b) In addition to the notices of loss required in paragraph (a) of
this section, a participant must also submit a completed application for
payment no later than
(1) 30 calendar days after the end of the calendar year in which the
loss of livestock occurred or
(2) September 13, 2009 for losses during 2008.
(c) Applicants must submit supporting documentation with their
application. For contract growers, the information must include a copy
of the grower contract and other documents establishing their status. In
addition, for all applicants, including contract
[[Page 95]]
growers, supporting documents must show:
(1) Evidence of loss,
(2) Current physical location of livestock in inventory,
(3) Physical location of claimed livestock at the time of death, and
(4) Inventory numbers and other inventory information necessary to
establish actual mortality as required by FSA.
(d) The participant must provide adequate proof that the death of
the eligible livestock occurred as a direct result of an eligible
adverse weather event in the calendar year for which benefits are
requested. The quantity and kind of livestock that died as a direct
result of the eligible adverse weather event during the calendar year
for which benefits are being requested may be documented by: purchase
records; veterinarian records; bank or other loan papers; rendering-
plant truck receipts; Federal Emergency Management Agency records;
National Guard records; written contracts; production records; Internal
Revenue Service records; property tax records; private insurance
documents; and other similar verifiable documents as determined by FSA.
(e) If adequate verifiable proof of death documentation is not
available, the participant may provide reliable records, in conjunction
with verifiable beginning and ending inventory records, as proof of
death. Reliable records may include contemporaneous producer records,
dairy herd improvement records, brand inspection records, vaccination
records, pictures, and other similar reliable documents as determined by
FSA.
(f) Certification of livestock deaths by third parties may be
accepted only if verifiable proof of death records or reliable proof of
death records in conjunction with verifiable beginning and ending
inventory records are not available and both of the following conditions
are met:
(1) The livestock owner or livestock contract grower, as applicable,
certifies in writing:
(i) That there is no other verifiable or reliable documentation of
death available;
(ii) The number of livestock, by category identified in this subpart
and by FSA were in inventory at the time the applicable adverse weather
event occurred;
(iii) The physical location of the livestock, by category, in
inventory when the deaths occurred; and
(iv) Other details required for FSA to determine the certification
acceptable; and
(2) The third party is an independent source who is not affiliated
with the farming operation such as a hired hand and is not a ``family
member,'' defined as a person whom a member in the farming operation or
their spouse is related as lineal ancestor, lineal descendant, sibling,
spouse, and provides their telephone number, address, and a written
statement containing specific details about:
(i) Their knowledge of the livestock deaths;
(ii) Their affiliation with the livestock owner;
(iii) The accuracy of the deaths claimed by the livestock owner or
contract grower including, but not limited to, the number and kind or
type of the participant's livestock that died because of the eligible
adverse weather event; and
(iv) Other information required by FSA to determine the
certification acceptable.
(g) Data furnished by the participant and the third party will be
used to determine eligibility for program benefits. Furnishing the data
is voluntary; however, without all required data program benefits will
not be approved or provided.