This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

439 

Vol. 86, No. 3 

Wednesday, January 6, 2021 

1 Value loss crops include aquaculture, 

floriculture, mushrooms, ginseng root, ornamental 

nursery, sea grass and sea oats, Christmas trees, and 

turfgrass sod. 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Part 760 

[Docket ID: FSA–2020–0011] 

RIN 0560–AI55 

Agricultural Disaster Indemnity 

Programs 

AGENCY: Farm Service Agency (FSA), 

Department of Agriculture (USDA). 

ACTION: Final rule. 

SUMMARY: This rule establishes the 

Quality Loss Adjustment (QLA) Program 

to provide assistance to producers who 

suffered eligible crop quality losses due 

to hurricanes, excessive moisture, 

floods, drought, tornadoes, typhoons, 

volcanic activity, snowstorms, and 

wildfires occurring in calendar years 

2018 and 2019. It also amends the 

provisions for the Wildfire and 

Hurricane Indemnity Program Plus 

(WHIP+) to be consistent with the 

Further Consolidated Appropriations 

Act, 2020, by adding excessive moisture 

and drought occurring in 2018 and 2019 

as qualifying disaster events and 

clarifying eligibility of sugar beets. The 

changes to WHIP+ were self-enacting 

and were previously implemented by 

FSA. 

DATES: 

Effective date: January 6, 2021. 

Comment due date: Comments are 

due by March 8, 2021. 

ADDRESSES: We invite you to submit 

comments on this rule. You may submit 

comments by either of the following 

methods, although FSA prefers that you 

submit comments electronically through 

the Federal eRulemaking Portal: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and search 

for Docket ID FSA–2020–0011. Follow 

the instructions for submitting 

comments. 

• Mail: Director, SND, FSA, U.S. 

Department of Agriculture, 1400 

Independence Avenue SW, Stop 0522, 

Washington, DC 20250–0522. In your 

comment, specify the docket ID FSA– 

2020–0011. 

Comments will be available for 

viewing online at http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Graham at (202) 720–6825 

(voice); or by email at: 

kimberly.graham@usda.gov. Persons 

with disabilities who require alternative 

means for communication should 

contact the USDA Target Center at (202) 

720–2600 (voice). 

SUPPLEMENTARY INFORMATION: 

Background 

The Additional Supplemental 

Appropriations for Disaster Relief Act, 

2019 (‘‘Disaster Relief Act,’’ Pub. L. 

116–20) provided disaster assistance for 

necessary expenses related to losses of 

crops (including milk, on-farm stored 

commodities, crops prevented from 

planting in 2019, and harvested 

adulterated wine grapes), trees, bushes, 

and vines, as a consequence of 

hurricanes, floods, tornadoes, typhoons, 

volcanic activity, snowstorms, and 

wildfires occurring in calendar years 

2018 and 2019. The Further 

Consolidated Appropriations Act, 2020 

(Pub. L. 116–94), makes several changes 

to the provisions of the Disaster Relief 

Act, including: 

• Specifying that assistance would be 

provided for crop quality losses; 

• Adding excessive moisture as a 

qualifying disaster event; 

• Adding drought as a qualifying 

disaster event if an area within the 

county was rated by the U.S. Drought 

Monitor as having a D3 (extreme 

drought) or higher level of drought 

intensity during the applicable calendar 

year; and 

• Providing that sugar beet losses in 

2018 and 2019 would be paid through 

cooperative processors (to be paid to 

producer members as determined by 

such processors). 

This rule implements those 

provisions of the Further Consolidated 

Appropriations Act, 2020, by 

establishing the QLA Program to 

provide assistance for crop quality 

losses and amending the WHIP+ 

regulations to be consistent with the 

changes to qualifying disaster events 

and eligibility of sugar beet losses. 

QLA Program 

This rule establishes the QLA 

Program to provide disaster assistance 

for crop quality losses that were a 

consequence of hurricanes, excessive 

moisture, floods, qualifying drought, 

tornadoes, typhoons, volcanic activity, 

snowstorms, or wildfires occurring in 

calendar years 2018 and 2019. Eligible 

crops generally include crops for which 

FCIC crop insurance coverage or 

Noninsured Crop Disaster Assistance 

Program (NAP) coverage is available; 

however, value loss crops,1 honey, and 

maple sap are not eligible. The QLA 

Program provides assistance for losses 

to crops that were sold or fed to 

livestock or are in storage; crops that 

were destroyed are not eligible. 

Assistance will be based on a producer’s 

harvested affected production of an 

eligible crop that had a quality loss due 

to a qualifying disaster event and had at 

least a 5 percent quality loss due to all 

eligible disaster events. 

Qualifying disaster events include 

hurricanes, floods, tornados, typhoons, 

volcanic activity, snowstorms, wildfires, 

excessive moisture, qualifying drought, 

and related conditions that occurred in 

the 2018 or 2019 calendar year. 

Assistance is available for eligible 

producers in counties that received a 

qualifying Presidential Emergency 

Disaster Declaration (declaration) or 

Secretarial Disaster Designation 

(designation) due to one or more of the 

qualifying disaster events or a related 

condition. As required by the Further 

Consolidated Appropriations Act, 2020, 

drought is only a qualifying disaster 

event if an area within the county was 

rated by the U.S. Drought Monitor as 

having a D3 (extreme drought) or higher 

level of drought intensity during the 

applicable calendar year (referred to as 

‘‘qualifying drought’’ in this rule). Only 

producers in those counties that 

received a disaster declaration or 

designation qualify for the QLA Program 

based on the declaration or designation. 

Producers in counties that did not 

receive a qualifying declaration or 

designation may still apply; however, 

they must also provide supporting 

documentation to establish that the crop 

was directly affected by a qualifying 

disaster event and suffered the same 


jbell on DSKJLSW7X2PROD with RULES
440 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

minimum loss as required by a crop in 

a disaster declared or designated 

county. Lists of counties with 

Presidential Emergency Disaster 

Declarations and Secretarial Disaster 

Designations for all qualifying disaster 

events for 2018 and 2019 are available 

at farmers.gov/quality-loss. 

FSA recognizes that a crop may suffer 

quality losses due to multiple disaster 

events in a single crop year, and the 

portion of a crop’s quality loss that can 

be attributed to a specific disaster event 

may be difficult to determine. Therefore, 

while a qualifying disaster event must 

have caused at least a portion of the 

affected production’s quality loss, FSA 

will consider the total quality loss 

caused by all eligible disaster events for 

eligibility and payment calculation 

purposes. Eligible disaster events for the 

QLA Program include those listed for 

NAP in 7 CFR 1437.10, except that the 

QLA Program does not cover losses due 

to insect infestation. 

The QLA Program does not cover 

losses due to disaster events occurring 

after a crop was harvested or due to crop 

deterioration while in storage. Quality 

losses that could have been mitigated 

using good farming practices are not 

eligible. For example, if a producer’s 

corn crop received a quality discount 

due to high moisture content, the 

producer could have mitigated that 

quality loss by using best practices for 

drying and storing the crop; therefore, 

that producer’s quality loss due to high 

moisture is not eligible. The QLA 

Program does not provide assistance for 

losses that cannot be determined to have 

occurred or for losses for which a notice 

of loss was previously disapproved by 

FSA, RMA, or an approved insurance 

provider selling and servicing Federal 

crop insurance policies unless that 

notice of loss was disapproved solely 

because it was filed after the applicable 

deadline. 

The QLA Program does not provide 

assistance for certain quality losses that 

were already compensated under a 

Federal crop insurance plan, NAP, or 

WHIP+. This includes losses to affected 

production of: 

• Multiple market crops already 

compensated under crop insurance or 

WHIP+; 

• Crops for which production used to 

calculate a crop insurance indemnity or 

WHIP+ payment was adjusted based on 

a comparison of the producer’s sale 

price to the FCIC established price; 

• Crops that received a crop 

insurance indemnity, NAP payment, or 

WHIP+ payment based on the quantity 

of production that was considered 

unmarketable; and 

• Crops for which production was 

reported as salvage value or secondary 

use. 

The QLA Program also excludes 

quality losses to sugar beets that were 

compensated through cooperative 

agreements with cooperative processors. 

Affected production of a subsequent 

crop grown on double cropped acreage 

is only eligible if the crop has been 

approved as an eligible double cropping 

practice by the FSA State committee. 

Application 

FSA will accept QLA Program 

applications from January 6, 2021, 

through March 5, 2021. To apply, 

producers must submit a completed 

QLA Program application either in 

person, by mail, email, or facsimile to 

an FSA county office. To be eligible, a 

producer must submit a complete 

application, which includes all of the 

following: 

• FSA–898, Quality Loss Adjustment 

(QLA) Program Application; 

• FSA–899, Historical Nutritional 

Value Weighted Average Worksheet 

(only for forage crops with verifiable 

documentation of historical nutrient 

factors from the 3 preceding crop years); 

• FSA–578, Report of Acreage; 

• FSA–895, Crop Insurance and/or 

NAP Coverage Agreement; and 

• Required documentation, as 

discussed below. 

The FSA–578, FSA–895, and FSA– 

899 forms, and other required 

documentation must be submitted to the 

producer’s county office by March 19, 

2021. 

If not already on file with FSA, 

producers must also submit the 

following eligibility forms for each crop 

year within 60 days of the date the 

producer signs the application: 

• AD–1026, Highly Erodible Land 

Conservation (HELC) and Wetland 

Conservation (WC) Certification; 

• CCC–902, Farm Operating Plan for 

Payment Eligibility; 

• CCC–941 Average Adjusted Gross 

Income (AGI) Certification and Consent 

to Disclosure of Tax Information; and 

• CCC–942 Certification of Income 

from Farming, Ranching and Forestry 

Operations, if applicable. 

Payments will not be made until all 

necessary eligibility documentation is 

received. Failure of an applicant to 

submit documentation timely may 

result in FSA not issuing a payment or, 

in the case of legal entities, a reduced 

payment if the required documentation 

for one or more members of the entity 

is not submitted timely. 

Required Documentation 

To support their applications, 

producers must submit documentation 

showing the quality loss and quantity of 

affected production by March 19, 2021. 

Documentation of the quality loss (total 

dollar value loss, grading factors, and 

nutrient factors, as applicable), must be 

verifiable. Verifiable documentation is 

documentation that can be verified by 

FSA through an independent source; 

FSA may verify the submitted records 

with records on file at the warehouse, 

gin, laboratory, or other entity that 

received or tested the reported 

production. Examples of acceptable, 

verifiable documentation include 

warehouse grading sheets, settlement 

sheets, sales receipts, and laboratory test 

results. Except for grain crops that have 

been sold, the documentation must be 

from laboratory tests or analysis 

completed within 30 days of harvest to 

be considered acceptable, unless the 

FSA county committee determines that 

the record is representative of the 

condition of the affected production 

within 30 days of harvest. For grain 

crops that were sold, the verifiable 

documentation can be from any time 

from harvest through the time of sale, 

unless the FSA county committee 

determines the record is not 

representative of the condition within 

30 days of harvest. Producers who do 

not have acceptable, verifiable 

documentation are ineligible for the 

QLA Program. 

For forage crops, all producers must 

submit verifiable documentation 

showing the nutrient factors for the 

affected production of the crop. 

Producers must also submit verifiable 

documentation of the historical nutrient 

factors for the 3 preceding crop years if 

available. The type of nutrient factors 

(such as relative feed value or total 

digestible nutrients) that must be 

documented for a particular crop will be 

determined by the FSA county 

committee based on the standard 

practice for the crop in that county. For 

all crops other than forage crops, 

producers must submit verifiable 

documentation of the total dollar value 

loss due to quality, if available, and 

verifiable documentation of grading 

factors due to quality. 

Documentation to support the 

quantity of affected production included 

on the application must be verifiable for 

non-forage crops that receive a QLA 

payment based on the producer’s total 

dollar value loss. For all other crops 

(non-forage crops without a producer’s 

total dollar value loss and all forage 

crops), records to support the quantity 

of affected production must be reliable. 

Reliable production records means 

evidence provided by the participant 

that is used to substantiate the amount 

of production reported when verifiable 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 441 

2FSA provided assistance for losses due to 

Hurricanes Harvey, Irma, Maria, and other 

hurricanes and wildfires occurring in calendar year 

2017 through the 2017 Wildfires and Hurricanes 

Indemnity Program (2017 WHIP) (final rule 

published July 18, 2018, 83 FR 33795–33809) and 

the Florida Citrus Recovery Grant Program. 

3FSA has previously provided assistance for 

losses due to Hurricanes Michael and Florence, 

other hurricanes, floods, tornadoes, typhoons, 

volcanic activity, snowstorms, and wildfires 

occurring in calendar years 2018 and 2019 through 

the Wildfires and Hurricanes Indemnity Program 

Plus (WHIP+), On-Farm Storage Loss Program, and 

Milk Loss Program (final rule published September 

13, 2019, 84 FR 48518–48537), as well as through 

several grants and cooperative agreements with 

sugar beet cooperatives. 

records are not available, including 

copies of receipts, ledgers of income, 

income statements of deposit slips, 

register tapes, invoices for custom 

harvesting, and records to verify 

production costs, contemporaneous 

measurements, truck scale tickets, and 

contemporaneous diaries that are 

determined acceptable by the FSA 

county committee. To determine 

whether the records are acceptable, the 

FSA county committee will consider 

whether they are consistent with the 

records of other producers of the crop in 

that area. 

Payment Calculation 

QLA Program payments will be 

calculated using different formulas 

based on the type of crop (forage or nonforage) and based on the type of 

documentation submitted. All QLA 

payments, regardless of whether they 

are forage or non-forage, and the type of 

documentation submitted, will be 

calculated using a 70 percent payment 

factor. Payments calculated based on a 

county average loss, as described below, 

will be subject to an additional payment 

factor of 50 percent. 

For forage crops with verifiable 

documentation of both the nutrient 

factors for the affected production and 

historical nutrient factors for the 3 

preceding crop years, payment will be 

equal to the amount of the producer’s 

total affected production multiplied by 

the producer’s verifiable percentage of 

loss, multiplied by the average market 

price determined by FSA, multiplied by 

70 percent. The producer’s verifiable 

percentage of loss is determined by 

comparing the nutrient factor test 

results for the affected production to the 

average from the 3 preceding crop years, 

as documented on the FSA–899, 

Historical Nutritional Value Weighted 

Average Worksheet. The average market 

price for the QLA Program is the price 

used for NAP established according to 7 

CFR 1437.12. 

For forage crops with verifiable 

documentation of nutrient factors for 

the affected production but without 

historical nutrient factors for the 3 

preceding crop years, the payment will 

be equal to the amount of the producer’s 

total affected production multiplied by 

the county average percentage of loss, 

multiplied by the average market price 

determined by FSA, multiplied by 70 

percent, multiplied by 50 percent. 

For affected production of non-forage 

crops with verifiable documentation of 

the total dollar value loss due to quality, 

the QLA Program payment is equal to 

the producer’s total dollar value loss on 

the affected production of the crop, 

multiplied by a payment factor of 70 

percent. 

For non-forage crops without 

verifiable documentation of a total 

dollar value loss but with verifiable 

documentation of grading factors due to 

quality, the payment will be equal to the 

amount of producer’s affected 

production multiplied by the county 

average loss per unit of measure, 

multiplied by 70 percent, multiplied by 

50 percent. 

To determine the county average 

percentage of loss (for forage crops) or 

the county average loss per unit of 

measure (for non-forage crops), FSA will 

calculate the average loss for a crop 

based on losses of producers applying 

with verifiable documentation of 

historical nutritional factors (for forage 

crops) or the total dollar value loss (for 

non-forage crops) if at least 5 eligible 

producers submitted that 

documentation in the county. If less 

than 5 eligible producers in a county 

submit verifiable documentation of their 

historical nutritional factors or their 

total dollar value loss, FSA will 

determine a county average percentage 

of loss or county average loss per unit 

of measure based on the best available 

data, including losses of other QLA 

Program participants in contiguous 

counties. If sufficient data is still not 

available after considering other 

sources, FSA may determine that a 

county average cannot be calculated and 

producers in that county applying for 

payment under the applicable 

calculation are ineligible. 

Payments for the QLA Program will 

not be issued until the application 

period has ended in order to allow FSA 

to determine the county average losses, 

as well as the total payments requested 

under the QLA Program. The Further 

Consolidated Appropriations Act, 2020 

provides funding for the QLA Program 

to be available until December 31, 2021, 

in an amount equal to the remaining 

funds provided under the Bipartisan 

Budget Act of 2018 (Pub. L. 115–123) for 

losses due to Hurricanes Harvey, Irma, 

Maria, and other hurricanes and 

wildfires occurring in calendar year 

2017,2 and remaining funds provided 

under the Disaster Relief Act for losses 

due to Hurricanes Michael and 

Florence, other hurricanes, floods, 

tornadoes, typhoons, volcanic activity, 

snowstorms, and wildfires occurring in 

calendar years 2018 and 2019.3 If the 

total amount of calculated QLA Program 

payments exceeds the amount of 

funding available, FSA will prorate all 

payments by a national factor. 

A person or legal entity, other than a 

joint venture or general partnership, is 

eligible to receive, directly or indirectly, 

up to $125,000 per crop year in QLA 

Program payments. FSA will use the 

notification of interest provisions in 7 

CFR 1400.107 and payment attribution 

provisions in 7 CFR 1400.105 for 

attributing and limiting payments to 

persons and legal entities. FSA will also 

use provisions in 7 CFR 1400.104 when 

changes in a farming operation result in 

an increase in persons to which 

payment limitation applies. Payments 

made to a joint operation (including a 

general partnership or joint venture) 

cannot exceed $250,000 per person or 

legal entity that comprise the ownership 

of the joint operation. Payments made to 

a legal entity will be reduced 

proportionately by an amount that 

represents the direct or indirect 

ownership in the legal entity by any 

person or legal entity that has otherwise 

reached the maximum payment 

limitation. These rules for attributing 

and limiting payments are consistent 

with the programs FSA administers on 

behalf of the Commodity Credit 

Corporation. 

A person or legal entity, other than a 

joint venture or general partnership, is 

ineligible for a 2018, 2019, or 2020 

payment if the person’s or legal entity’s 

average adjusted gross income (AGI) is 

more than $900,000, unless at least 75 

percent of that person’s or legal entity’s 

average AGI is derived from farming, 

ranching, or forestry-related activities. 

The average AGI for each of the program 

years 2018, 2019, or 2020, is determined 

using the average of the adjusted gross 

incomes for the 3 taxable years 

preceding the most immediately 

preceding taxable year. For example, for 

the 2019 program year, the producer’s 

AGI would be based on the 2015, 2016, 

and 2017 tax years. If at least 75 percent 

of the person’s or legal entity’s AGI is 

derived from farming, ranching, or 

forestry-related activities and the 

participant provides the required 

certification and documentation, the 

person or legal entity is eligible to 


jbell on DSKJLSW7X2PROD with RULES
442 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

receive QLA Program payments up to 

the applicable payment limitation noted 

above. With respect to joint ventures 

and general partnerships, this AGI 

provision will be applied to each 

member of the joint venture and general 

partnership. 

Requirement to Purchase Crop 

Insurance or NAP Coverage 

The Disaster Relief Act requires all 

participants who receive QLA Program 

payments to purchase crop insurance or 

NAP coverage for the next 2 available 

crop years. The latest year for meeting 

compliance with this provision will be 

the 2023 crop year. In other words, if 

the 2 consecutive years of coverage are 

not met by 2023 coverage year, the 

participant is ineligible for and must 

refund QLP Program payments. 

Participants must obtain crop insurance 

or NAP, as may be applicable, at the 60 

percent coverage level or higher. In 

situations where crop insurance is 

unavailable for a crop, the Disaster 

Relief Act requires that a QLA Program 

participant obtain NAP coverage. 

Section 1001D of the Food Security Act 

of 1985 (1985 Farm Bill) provides that 

a person or entity with AGI in amount 

greater than $900,000 is not eligible to 

participate in NAP; however, producers 

with an AGI greater than $900,000 may 

be eligible for the QLA Program if at 

least 75 percent of that person’s or legal 

entity’s average AGI is derived from 

farming, ranching, or forestry-related 

activities. Accordingly, in order to 

reconcile this restriction in the 1985 

Farm Bill and the Disaster Relief Act’s 

requirement to obtain NAP or crop 

insurance coverage, QLA Program 

participants may meet the Disaster 

Relief Act’s purchase requirement by 

purchasing Whole-Farm Revenue 

Protection crop insurance coverage, if 

eligible, or they may pay the applicable 

NAP service fee and premium for the 60 

percent coverage level despite their 

ineligibility for a NAP payment. In other 

words, the service fee and premium 

must be paid even though no NAP 

payment may be made because the AGI 

of the person or entity exceeds the 1985 

Farm Bill limitation. 

The crop insurance and NAP coverage 

requirements are specific to the crop 

and county (county where the crop is 

physically located for insurance and 

administrative county for NAP) for 

which QLA Program payments are paid. 

This means that a producer is required 

to purchase crop insurance or NAP 

coverage for the crop in the county for 

which the producer was issued a QLA 

Program payment. Producers who 

receive a payment on a crop in a county 

and who have the crop or crop acreage 

in subsequent years, as provided in this 

rule, and who fail to obtain the 2 years 

of crop insurance or NAP coverage must 

refund all QLA Program payments for 

that crop in that county with interest 

from the date of disbursement. This is 

a condition of payment eligibility 

specified by Disaster Relief Act and is 

therefore not subject to partial payment 

eligibility or other types of equitable 

relief. Producers who were paid under 

the QLA Program for a crop in a county 

but do not plant that crop in a 

subsequent year are not subject to the 

crop insurance or NAP purchase 

requirement. WHIP+ participants who 

already met the requirement to purchase 

crop insurance or NAP coverage as 

specified in 7 CFR 760.1517 are 

considered to have also met the 

requirement to purchase crop insurance 

or NAP coverage for QLA Program 

purposes, and they are not required to 

obtain additional years of crop 

insurance or NAP coverage as a result of 

also receiving a QLA Program payment 

for that crop. 

Applicable general eligibility 

requirements, including recordkeeping 

requirements and required compliance 

with HELC and Wetland Conservation 

provisions, are similar to those for the 

previous ad hoc crop disaster programs 

and current permanent disaster 

programs. All information provided to 

FSA for program eligibility and payment 

calculation purposes, including 

production records, is subject to spot 

check. 

WHIP+ 

FSA, on behalf of the Secretary of 

Agriculture, previously implemented 

provisions of the Disaster Relief Act by 

establishing WHIP+ through a final rule 

published on September 19, 2019 (84 FR 

48518–48537). The Disaster Relief Act 

provided assistance for losses of crops, 

trees, bushes, and vines, as a 

consequence of hurricanes, floods, 

tornadoes, typhoons, volcanic activity, 

snowstorms, and wildfires occurring in 

calendar years 2018 and 2019. WHIP+ 

covers only production losses of crops 

except in specific circumstances 

discussed previously in this document 

when the producer may have also been 

compensated for quality losses. 

This rule amends 7 CFR 760.1500(c) 

and the definition of ‘‘qualifying 

disaster event’’ in § 760.1502 to include 

excessive moisture and qualifying 

drought. As under the QLA Program, 

drought is only considered a qualifying 

disaster event if an area within the 

county was rated by the U.S. Drought 

Monitor as having a D3 (extreme 

drought) or higher level of drought 

intensity during the applicable calendar 

year. This rule adds definitions of 

‘‘qualifying drought’’ and ‘‘U.S. Drought 

Monitor’’ in § 760.1502. 

The addition of these qualifying 

disaster events for WHIP+ was selfenacting as the text in the law clearly 

specified the required changes without 

need for interpretation; therefore, FSA 

began the sign-up period for losses due 

to excessive moisture and qualifying 

drought on March 23, 2020, and sign-up 

ended on October 30, 2020. Producers 

applying for WHIP+ assistance for losses 

due to excessive moisture or qualifying 

drought were required to meet all 

requirements in 7 CFR part 760, subpart 

O, including the requirement to 

purchase crop insurance for 2 years as 

specified in § 760.1517. 

The Further Consolidated 

Appropriations Act, 2020 also directed 

the Secretary to pay sugar beet losses in 

2018 and 2019 through cooperative 

processors. FSA has established 

cooperative agreements with sugar beet 

processors; those processors will be 

responsible for distributing assistance to 

their members. This rule amends the 

eligibility provisions in § 760.1517 to 

specify that members of cooperatives are 

not eligible for a WHIP+ payment for 

sugar beet losses. 

FSA is also updating § 760.1510(a) to 

reflect the application deadline of 

October 30, 2020, and correcting 

references in §§ 760.1508(c) and (f) and 

760.1511(a)(6). 

Notice and Comment and Effective Date 

The Administrative Procedure Act (5 

U.S.C. 553) provides that the notice and 

comment and 30-day delay in the 

effective date provisions do not apply 

when the rule involves a matter relating 

to agency management or personnel or 

to public property, loans, grants, 

benefits, or contracts. This rule involves 

programs for payments to certain 

agricultural commodity producers and 

therefore falls within that exemption. 

Due to the nature of the rule and the 

need to implement the regulations 

expeditiously to provide assistance to 

agricultural producers, FSA finds that 

notice and public procedure are 

contrary to the public interest. 

Therefore, even though this rule is a 

major rule for purposes of the 

Congressional Review Act, FSA is not 

required to delay the effective date for 

60 days from the date of publication to 

allow for Congressional review. 

Therefore, this rule is effective upon 

publication in the Federal Register. 

Executive Orders 12866, 13563, 13771 

and 13777 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 443 

4The addition of excessive moisture and certain 

drought conditions as qualifying causes of loss 

under WHIP+ is specific, not open to interpretation, 

and is therefore self-enacting. Accordingly, the 

provision was previously implemented. FSA began 

the sign-up period on March 23, 2020, and sign-up 

ended on October 30, 2020. 

5Assistance for sugar beet losses for members of 

cooperative processors is provided through a 

separate program. 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasized the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Executive 

Order 13777, ‘‘Enforcing the Regulatory 

Reform Agenda,’’ established a Federal 

policy to alleviate unnecessary 

regulatory burdens on the American 

people. 

The Office of Management and Budget 

(OMB) designated this rule as 

economically significant under 

Executive Order 12866, and therefore, 

OMB has reviewed this rule. The costs 

and benefits of this rule are summarized 

below. The full cost benefit analysis is 

available on regulations.gov. 

Executive Order 13771, titled 

Reducing Regulation and Controlling 

Regulatory Costs, was issued on January 

30, 2017. The OMB guidance in M–17– 

21, dated April 5, 2017, specifies that 

‘‘transfers’’ are not covered by Executive 

Order 13771 but that requirements 

imposed apart from transfers in transfer 

rules may qualify as costs or cost 

savings under Executive Order 13771, 

for example the information collection 

requirements in this rule. This rule is 

not subject to the requirements of E.O. 

13771 because this rule results in no 

more than de minimis costs. 

Cost Benefit Analysis Summary 

WHIP+ initially provided 

approximately $3 billion in 

supplemental assistance to producers 

for qualifying agricultural production 

losses. In the Further Consolidated 

Appropriations Act, 2020, Congress 

changed provisions of the Disaster 

Relief Act as follows: 

1. Extended eligibility under WHIP+ 

to also cover 4— 

a. Crop production losses due to 

excessive moisture in calendar years 

2018 and 2019; 

b. Crop production losses due to 

drought in calendar years 2018 and 

2019 if the area within the county in 

which the loss occurred was rated by 

the U.S. Drought Monitor as having a D3 

(extreme drought) or higher level of 

drought intensity during the applicable 

calendar year; 

2. Provided assistance for sugar beet 

losses in 2018 and 2019 to be paid 

through cooperative processors; 5 and 

3. Authorized assistance for crop 

quality losses that occurred in calendar 

years 2018 and 2019 through the QLA 

Program (implemented by this rule). 

Eligible crops under the QLA Program 

include crops for which Federal crop 

insurance or NAP coverage is available. 

To be eligible for the QLA Program, a 

crop must have suffered a quality loss 

due to a qualifying disaster event and 

had at least a 5 percent quality discount 

due to a combination of the qualifying 

disaster event and any other QLAeligible causes of loss. Eligible crops 

may have been sold, fed on farm to 

livestock, or been in storage at the time 

of application. 

USDA estimates the Further 

Consolidated Appropriations Act, 2020 

will provide approximately $950 

million for the continuation of disaster 

assistance program delivery, including 

payments to eligible producers for 

production losses due to excessive 

moisture and extreme drought under 

WHIP+ and for quality losses covered by 

the QLA Program. Of that amount, 

USDA anticipates that an estimated 

$500 million will be available for QLA 

Program payments. However, the 

amount of funding ultimately available 

for the QLA Program will not be known 

until other payments, for example for 

excessive moisture and drought under 

WHIP+, are finalized. 

The QLA Program payment 

calculation depends on several factors, 

as shown in Figure 1. A producer is 

ineligible for a QLA Program payment if 

they received a crop insurance 

indemnity, NAP payment, or WHIP+ 

payment for a crop that was 

unmarketable, sold for salvage value or 

secondary use, or if the payment was 

based on a comparison of the sales price 

of the affected production and the 

applicable reference price. Otherwise, 

payments or benefits received under the 

Federal crop insurance, NAP or WHIP+ 

do not affect a producer’s eligibility or 

payment received from the QLA 

Program. The payment calculation 

depends on the use of production (nonforage or forage) and evidence at hand 

of the crop quality loss. Producers who 

do not have evidence of the quality loss 

are ineligible. 


jbell on DSKJLSW7X2PROD with RULES
444 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA, Pub. L. 

104–121), generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule whenever an agency 

is required by the Administrative 

Procedure Act or any other law to 

publish a proposed rule, unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

This rule is not subject to the Regulatory 

Flexibility Act because USDA is not 

required by Administrative Procedure 

Act or any law to publish a proposed 

rule for this rulemaking. 

Environmental Review 

The environmental impacts of this 

final rule have been considered in a 

manner consistent with the provisions 

of the National Environmental Policy 

Act (NEPA, 42 U.S.C. 4321–4347), the 

regulations of the Council on 

Environmental Quality (40 CFR parts 

1500–1508), and the FSA regulation for 

compliance with NEPA (7 CFR part 

799). The legislative intent for 

implementing the QLA Program is to 

provide assistance to producers who 

suffered eligible crop quality losses due 

to hurricanes, excessive moisture, 

floods, drought, tornadoes, typhoons, 

volcanic activity, snowstorms, and 

wildfires occurring in calendar years 

2018 and 2019. 

While OMB has designated this rule 

as ‘‘economically significant’’ under 

Executive Order 12866, ‘‘economic or 

social effects are not intended by 

themselves to require preparation of an 

environmental impact statement’’ (see 

40 CFR 1502.16(b)), when not 

interrelated to natural or physical 

environmental effects. 

For this rule, the FSA Categorical 

Exclusions found in 7 CFR 799.31 

apply, specifically 7 CFR 

799.31(b)(6)(iii), (iv), and (vi) (that is, 

§ 799.31(b)(6)(iii) Financial assistance to 

supplement income, manage the supply 

of agricultural commodities, or 

influence the cost or supply of such 

commodities or programs of a similar 

nature or intent (that is, price support 

programs); § 799.31(b)(6)(iv) Individual 

farm participation in FSA programs 

where no ground disturbance or change 

in land use occurs as a result of the 

proposed action or participation; and 

§ 799.31(b)(6)(vi) Safety net programs 

administered by FSA). No Extraordinary 

Circumstances (7 CFR 799.33) exist. 

For the outlined reasons, FSA has 

determined that the implementation of 

the QLA Program and the participation 

in the QLA Program does not constitute 

a major Federal action that would 

significantly affect the quality of the 

human environment, individually or 

cumulatively. Therefore, FSA will not 

prepare an environmental assessment or 

environmental impact statement for this 

regulatory action. 

Executive Order 12372 

Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs,’’ requires consultation with 

State and local officials that would be 

directly affect by proposed Federal 

financial assistance. The objectives of 

the Executive order are to foster an 

intergovernmental partnership and a 

strengthened federalism, by relying on 

State and local processes for State and 

local government coordination and 

review of proposed Federal financial 

assistance and direct Federal 

development. For reasons specified in 

the final rule related notice to 7 CFR 

part 3015, subpart V (48 FR 29115, June 

24, 1983), the programs and activities 


jbell on DSKJLSW7X2PROD with RULESER06JA21.000</GPH>
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 445 

within this rule are excluded from the 

scope of Executive Order 12372 which 

requires intergovernmental consultation 

with State and local officials. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, ‘‘Civil Justice 

Reform.’’ This rule will not preempt 

State or local laws, regulations, or 

policies unless they represent an 

irreconcilable conflict with this rule. 

The rule will not have retroactive effect. 

Before any judicial action may be 

brought regarding the provisions of this 

rule, the administrative appeal 

provisions of 7 CFR parts 11 and 780 

must be exhausted. 

Executive Order 13132 

This rule has been reviewed under 

Executive Order 13132, ‘‘Federalism.’’ 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, except as required 

by law. Nor does this rule impose 

substantial direct compliance costs on 

State and local governments. Therefore, 

consultation with the States is not 

required. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments.’’ Executive Order 13175 

requires Federal agencies to consult and 

coordinate with Tribes on a 

government-to-government basis on 

policies that have Tribal implications, 

including regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

have substantial direct effects on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The USDA’s Office of Tribal Relations 

(OTR) has assessed the impact of this 

rule on Indian Tribes and determined 

that this rule may have significant 

Tribal implications that require ongoing 

adherence to Executive Order 13175. 

OTR notes that the programs are similar 

to programs that have been 

administered by FSA and RMA in the 

past; having not heard any concerns 

regarding the administration of these in 

the past, and the fact that provisions are 

mandated in the Disaster Relief Act, 

OTR recommended that consultation is 

not required at this time. Tribes can 

request consultation at any time. FSA 

will work with OTR to ensure 

meaningful consultation is provided 

where changes, additions, and 

modifications identified in this rule are 

not expressly mandated by law. 

The Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA, Pub. L. 

104–4) requires Federal agencies to 

assess the effects of their regulatory 

actions on State local, and Tribal 

governments or the private sector. 

Agencies generally must prepare a 

written statement, including a cost 

benefit analysis, for proposed and final 

rules with Federal mandates that may 

result in expenditures of $100 million or 

more in any 1 year for State, local, or 

Tribal governments, in the aggregate, or 

to the private sector. UMRA generally 

requires agencies to consider 

alternatives and adopt the more cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

This rule contains no Federal mandates, 

as defined in Title II of UMRA, for State, 

local, and Tribal governments or the 

private sector. Therefore, this rule is not 

subject to the requirements of sections 

202 and 205 of UMRA. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995, FSA submitted 

the QLA Program information collection 

request to OMB for emergency approval. 

OMB approved the 6-month emergency 

information collection. 

E-Government Act Compliance 

FSA is committed to complying with 

the E-Government Act, to promote the 

use of the internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Federal Assistance Programs 

The titles and numbers of the Federal 

Domestic Assistance Program found in 

the Catalog of Federal Domestic 

Assistance to which this rule applies 

are: 

10.129—Wildfire and Hurricanes 

Indemnity Program Plus 

10.133—Quality Loss Adjustment 

Program 

List of Subjects in 7 CFR Part 760 

Dairy products, Indemnity payments, 

Reporting and recordkeeping 

requirements. 

For the reasons discussed above, FSA 

amends 7 CFR part 760 as follows: 

PART 760—INDEMNITY PAYMENT 

PROGRAMS 

■ 1. Revise the authority citation for part 

760 to read as follows: 

Authority: 7 U.S.C. 4501 and 1531; 16 

U.S.C. 3801, note; 19 U.S.C. 2497; Title III, 

Pub. L. 109–234, 120 Stat. 474; Title IX, Pub. 

L. 110–28, 121 Stat. 211; Sec. 748, Pub. L. 

111–80, 123 Stat. 2131; Title I, Pub. L. 115– 

123, 132 Stat. 65; Title I, Pub. L. 116–20, 133 

Stat. 871; and Division B, Title VII, Pub. L. 

116–94, 133 Stat. 2658. 

Subpart O—Agricultural Disaster 

Indemnity Programs 

§ 760.1500 [Amended] 

■ 2. In § 760.1500(c), remove the words 

‘‘and wildfires’’ and add ‘‘wildfires, 

excessive moisture, and qualifying 

drought’’ in their place. 

■ 3. Amend § 760.1502 as follows: 

■ a. In the definition of ‘‘Qualifying 

disaster event’’, in paragraph (2) of 

remove the word ‘‘wildfire’’ and add 

‘‘wildfire, excessive moisture, qualifying 

drought’’ in its place; and 

■ b. Add the definitions of ‘‘Qualifying 

drought’’ and ‘‘U.S. Drought Monitor’’ 

in alphabetical order. 

The additions read as follows: 

§ 760.1502 Definitions. 

* * * * * 

Qualifying drought means an area 

within the county was rated by the U.S. 

Drought Monitor as having a D3 

(extreme drought) or higher level of 

drought intensity during the applicable 

calendar year. 

* * * * * 

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://

droughtmonitor.unl.edu. 

* * * * * 

■ 4. In § 760.1503, add paragraph (j) to 

read as follows. 

§ 760.1503 Eligibility. 

* * * * * 

(j) Members of cooperative processors 

are not eligible for WHIP+ assistance for 

sugar beet losses. 

§ 760.1508 [Amended] 

■ 5. Amend § 760.1508 as follows: 

■ a. In paragraph (c), remove the cross 

reference ‘‘paragraph (b)(1)’’ and add the 

cross reference ‘‘paragraph (b)’’ in its 

place; and 


jbell on DSKJLSW7X2PROD with RULES
446 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

■ b. In paragraph (f), remove the cross 

reference ‘‘paragraph (b)(1)’’ and add 

cross reference ‘‘paragraph (e)’’ in its 

place. 

§ 760.1510 [Amended] 

■ 6. In § 760.1510(a), remove the words 

‘‘a date that will be announced by the 

Deputy Administrator’’ and add 

‘‘October 30, 2020’’ in their place. 

§ 760.1511 [Amended] 

■ 7. In § 760.1511(a)(6), remove the 

cross reference ‘‘paragraph (f)’’ and add 

cross reference ‘‘paragraph (g)’’ in its 

place. 

■ 8. Add subpart R, consisting of 

§§ 760.1800 through 760.1814, to read 

as follows: 

Subpart R—Quality Loss Adjustment 

Program 

Sec. 

760.1800 Applicability. 

760.1801 Administration. 

760.1802 Definitions. 

760.1803 Participant eligibility. 

760.1804 Eligibility of affected production. 

760.1805 Qualifying disaster events. 

760.1806 Ineligible losses. 

760.1807 Miscellaneous provisions. 

760.1808 General provisions. 

760.1809 Payment and adjusted gross 

income limitation. 

760.1810 Time and method of application. 

760.1811 Required documentation and 

verification. 

760.1812 Payment calculation. 

760.1813 Availability of funds and timing 

of payments. 

760.1814 Requirement to purchase crop 

insurance or NAP coverage. 

§ 760.1800 Applicability. 

This subpart specifies the terms and 

conditions for the Quality Loss 

Adjustment (QLA) Program. The QLA 

Program provides disaster assistance for 

crop quality losses that were a 

consequence of hurricanes, excessive 

moisture, floods, qualifying drought, 

tornadoes, typhoons, volcanic activity, 

snowstorms, and wildfires occurring in 

calendar years 2018 and 2019. 

§ 760.1801 Administration. 

(a) The QLA Program is administered 

under the general supervision of the 

Administrator, Farm Service Agency 

(FSA), and the Deputy Administrator for 

Farm Programs, FSA. The QLA Program 

is carried out by FSA State and county 

committees with instructions issued by 

the Deputy Administrator. 

(b) FSA State and county committees, 

and representatives and their 

employees, do not have authority to 

modify or waive any of the provisions 

of the regulations in this subpart or 

instructions issued by the Deputy 

Administrator. 

(c) The FSA State committee will take 

any action required by the regulations in 

this subpart that the FSA county 

committee has not taken. The FSA State 

committee will also: 

(1) Correct, or require an FSA county 

committee to correct, any action taken 

by the FSA county committee that is not 

in accordance with the regulations in 

this subpart; or 

(2) Require an FSA county committee 

to withhold taking any action that is not 

in accordance with this subpart. 

(d) No delegation to an FSA State or 

county committee precludes the FSA 

Administrator or the Deputy 

Administrator from determining any 

question arising under this subpart or 

from reversing or modifying any 

determination made by an FSA State or 

county committee. 

(e) The Deputy Administrator has the 

authority to: 

(1) Permit State and county 

committees to waive or modify a nonstatutory deadline specified in this 

subpart; and 

(2) Delegate authority to FSA State or 

county committees to make 

determinations under § 760.1812(f) and 

(g). 

(f) Items of general applicability to 

program participants, including, but not 

limited to, application periods, 

application deadlines, internal 

operating guidelines issued to FSA State 

and county offices, prices, and payment 

factors established under this subpart, 

are not subject to appeal in accordance 

with part 780 of this chapter. 

§ 760.1802 Definitions. 

The following definitions apply to 

this subpart. The definitions in §§ 718.2 

and 1400.3 of this title also apply, 

except where they conflict with the 

definitions in this section. In the event 

of conflict, the definitions in this 

section apply. 

Affected production means the 

producer’s ownership share of harvested 

production of an eligible crop, adjusted 

to standard moisture as established by 

the U.S. Grains Standards Act, a State 

regulatory agency, or industry standard, 

that had both: 

(1) A quality loss due to a qualifying 

disaster event; and 

(2) At least a 5 percent quality loss 

due to all eligible disaster events. 

Average market price means the 

average market price determined 

according to § 1437.12 of this title. 

Coverage level means the percentage 

determined by multiplying the elected 

yield percentage under a crop insurance 

policy or NAP coverage by the elected 

price percentage. 

Crop insurance means an insurance 

policy reinsured by FCIC under the 

provisions of the Federal Crop 

Insurance Act, as amended. It does not 

include private plans of insurance. 

Crop insurance indemnity means, for 

the purpose of this subpart, the payment 

to a participant for crop losses covered 

under crop insurance administered by 

RMA in accordance with the Federal 

Crop Insurance Act (7 U.S.C. 1501– 

1524). 

Crop year means: 

(1) For insurable crops, the crop year 

as defined according to the applicable 

crop insurance policy; and 

(2) For NAP-eligible crops, the crop 

year as defined in § 1437.3 of this title. 

Eligible crop means a crop for which 

coverage was available either from FCIC 

under part 400 of this title, or through 

NAP under § 1437.4 of this title. 

Eligible disaster event means a 

disaster event that is an eligible cause of 

loss specified in § 1437.10 of this title, 

excluding insect infestation. 

FCIC means the Federal Crop 

Insurance Corporation, a wholly owned 

Government Corporation of USDA, 

administered by RMA. 

FSA means the Farm Service Agency, 

an agency of USDA. 

Grading factor means a factor that 

describes the physical condition or a 

feature that is evaluated to determine 

the quality of the production, such as 

broken kernels and low-test weight. 

Good farming practices means the 

cultural practices generally recognized 

as compatible with agronomic and 

weather conditions and used for the 

crop to make normal progress toward 

maturity, as determined by FSA. These 

practices are: 

(1) For conventional farming 

practices, those generally recognized by 

agricultural experts for the area, which 

could include one or more counties; or 

(2) For organic farming practices, 

those generally recognized by the 

organic agricultural experts for the area 

or contained in the organic system plan 

that is in accordance with the National 

Organic Program specified in part 205 of 

this title. 

Harvested means: 

(1) For insurable crops, harvested as 

defined according to the applicable crop 

insurance policy; 

(2) For NAP-eligible single harvest 

crops, that a crop has been removed 

from the field, either by hand or 

mechanically; 

(3) For NAP-eligible crops with 

potential multiple harvests in 1 year or 

harvested over multiple years, that the 

producer has, by hand or mechanically, 

removed at least 1 mature crop from the 

field during the crop year; and 

(4) For mechanically harvested NAPeligible crops, that the crop has been 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 447 

removed from the field and placed in a 

truck or other conveyance, except hay is 

considered harvested when in the bale, 

whether removed from the field or not. 

Insurable crop means an agricultural 

crop (excluding livestock) for which the 

producer on a farm is eligible to obtain 

a policy or plan of insurance under the 

Federal Crop Insurance Act (7 U.S.C. 

1501–1524). 

Multiple market crop means a crop 

that is delivered to a single market but 

can have fresh and processed prices 

based on grading. For example, a 

producer may intend to sell all 

production of an apple crop as fresh 

production; however, based on grading 

of the crop at the market, the producer 

is compensated for some production at 

the fresh price and for some production 

at the processing price. 

Multiple planting means the planting 

for harvest of the same crop in more 

than one planting period in a crop year 

on different acreage. 

NAP means the Noninsured Crop 

Disaster Assistance Program under 

section 196 of the Federal Agriculture 

Improvement and Reform Act of 1996 (7 

U.S.C. 7333) and part 1437 of this title. 

NAP-eligible crop means an 

agricultural crop for which the producer 

on a farm is eligible to obtain NAP 

coverage. 

NAP service fee means the amount 

specified in § 1437.7 of this title that the 

producer must pay to obtain NAP 

coverage. 

Nutrient factor means a factor 

determined by a test that measures the 

nutrient value of a crop to be fed to 

livestock. Examples include, but are not 

limited to, relative feed value and total 

digestible nutrients. 

Production means quantity of the crop 

produced, which is expressed in a 

specific unit of measure including, but 

not limited to, bushels or pounds. 

QLA Program means the Quality Loss 

Adjustment Program. 

Qualifying disaster event means a 

hurricane, flood, tornado, typhoon, 

volcanic activity, snowstorm, wildfire, 

excessive moisture, qualifying drought, 

or a related condition that occurred in 

the 2018 or 2019 calendar year. 

Qualifying drought means an area 

within the county was rated by the U.S. 

Drought Monitor as having a D3 

(extreme drought) or higher level of 

drought intensity during the applicable 

calendar year. 

Quality loss means: 

(1) For forage crops, a reduction in an 

applicable nutrient factor for the crop; 

and 

(2) For crops other than forage, a 

reduction in the total dollar value of the 

crop due to reduction in the physical 

condition of the crop indicated by an 

applicable grading factor. 

Related condition means damaging 

weather or an adverse natural 

occurrence that occurred as a direct 

result of a specified qualifying disaster 

event, such as excessive rain, high 

winds, flooding, mudslides, and heavy 

smoke, as determined by the Deputy 

Administrator. The term does not 

include insect infestation. 

Reliable production record means 

evidence provided by the participant 

that is used to substantiate the amount 

of production reported when verifiable 

records are not available, including 

copies of receipts, ledgers of income, 

income statements of deposit slips, 

register tapes, invoices for custom 

harvesting, and records to verify 

production costs, contemporaneous 

measurements, truck scale tickets, and 

contemporaneous diaries that are 

determined acceptable by the FSA 

county committee. To determine 

whether the records are acceptable, the 

FSA county committee will consider 

whether they are consistent with the 

records of other producers of the crop in 

that area. 

RMA means the Risk Management 

Agency, an agency of USDA. 

Salvage value means the dollar 

amount or equivalent for the quantity of 

the commodity that cannot be marketed 

or sold in any recognized market for the 

crop. 

Secondary use means the harvesting 

of a crop for a use other than the 

intended use. 

Unit of measure means: 

(1) For insurable crops, the FCICestablished unit of measure; and 

(2) For NAP-eligible crops, the 

established unit of measure used for the 

NAP price and yield. 

USDA means the U.S. Department of 

Agriculture. 

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://

droughtmonitor.unl.edu. 

Value loss crop has the meaning 

specified in subpart D of part 1437 of 

this title. 

Verifiable documentation means 

evidence that can be verified by FSA 

through an independent source. 

Verifiable percentage of loss is the 

percentage of loss determined by 

comparing the applicable nutrient 

factors for a producer’s affected 

production of a forage crop with the 

average of such nutrient factors from the 

3 preceding crop years, as documented 

on FSA–899, Historical Nutritional 

Value Weighted Average Worksheet. 

WHIP+ means the Wildfires and 

Hurricanes Indemnity Program Plus 

under subpart O of this part. 

§ 760.1803 Participant eligibility. 

(a) Participants will be eligible to 

receive a payment under this subpart 

only if they incurred a loss to an eligible 

crop due to a qualifying disaster event, 

as further specified in this subpart. 

(b) To be an eligible participant under 

this subpart, a person or legal entity 

must be a: 

(1) Citizen of the United States; 

(2) Resident alien; for purposes of this 

subpart, resident alien means ‘‘lawful 

alien’’ (see § 1400.3 of this title); 

(3) Partnership consisting solely of 

citizens of the United States or resident 

aliens; or 

(4) Corporation, limited liability 

company, or other similar 

organizational structure organized 

under State law consisting solely of 

citizens or resident aliens of the United 

States. 

(c) If any person who would 

otherwise be eligible to receive a 

payment dies before the payment is 

received, payment may be released as 

specified in § 707.3 of this chapter. 

Similarly, if any person or legal entity 

who would otherwise have been eligible 

to apply for a payment dies or is 

dissolved, respectively, before the 

payment is applied for, payment may be 

released in accordance with this subpart 

if a timely application is filed by an 

authorized representative. Proof of 

authority to sign for the deceased 

producer or dissolved entity must be 

provided. 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. Eligibility of such 

participant will be determined, as it is 

for other participants, based upon 

ownership share and risk in producing 

the crop. 

(d) An ownership share is required to 

be eligible for a payment under this 

subpart. Growers growing eligible crops 

under contract for crop owners are not 

eligible for a payment under this 

subpart unless the grower is also 

determined to have an ownership share 

of the crop. Any verbal or written 

contract that precludes the grower from 

having an ownership share renders the 


jbell on DSKJLSW7X2PROD with RULES
448 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

grower ineligible for payments under 

this subpart. 

(e) A person or legal entity is not 

eligible to receive assistance under this 

subpart if FSA determines that the 

person or legal entity: 

(1) Adopted any scheme or other 

device that tends to defeat the purpose 

of this subpart or any of the regulations 

applicable to this subpart; 

(2) Made any fraudulent 

representation; or 

(3) Misrepresented any fact affecting a 

program determination under any or all 

of the following: This subpart and parts 

12, 400, 1400, and 1437 of this title. 

(f) A person who is ineligible for crop 

insurance or NAP under § 400.458 or 

§ 1437.16 of this title, respectively, for 

any year is ineligible for payments 

under this subpart for the same year. 

(g) The provisions of § 718.11 of this 

chapter, providing for ineligibility for 

payments for offenses involving 

controlled substances, apply. 

(h) As a condition of eligibility to 

receive payments under this subpart, 

the participant must have been in 

compliance with the Highly Erodible 

Land Conservation and Wetland 

Conservation provisions of part 12 of 

this title for the applicable crop year for 

which the producer is applying for 

benefits under this subpart, and must 

not otherwise be precluded from 

receiving payments under part 12, 400, 

1400, or 1437 of this title or any law. 

§ 760.1804 Eligibility of affected 

production. 

(a) To be eligible for the QLA 

Program, an eligible crop’s affected 

production must have suffered a quality 

loss due to a qualifying disaster event 

and had at least a 5 percent quality loss 

due to all eligible disaster events. 

Whether affected production of a crop 

had a 5 percent loss will be determined 

separately for crops with different crop 

types, intended uses, certified organic or 

conventional status, county, and crop 

year. 

(b) Affected production of the 

following is not eligible for the QLA 

Program: 

(1) Crops that were not grown 

commercially; 

(2) Crops that were intended for 

grazing or were grazed; 

(3) Crops not intended for harvest; 

(4) Volunteer crops; 

(5) Value loss crops; 

(6) Maple sap; 

(7) Honey; 

(8) By-products resulting from 

processing or harvesting a crop, such as, 

but not limited to, cotton seed, peanut 

shells, wheat or oat straw, or corn stalks 

or stovers; 

(9) First-year seeding for forage 

production; 

(10) Immature fruit crops; 

(11) Crops for which FCIC coverage or 

NAP coverage is unavailable; 

(12) Multiple market crops for which 

the producer previously received a crop 

insurance indemnity or WHIP+ payment 

for a quality loss; 

(13) Crops for which production used 

to calculate a crop insurance indemnity 

or WHIP+ payment was adjusted based 

on a comparison of the producer’s sale 

price to FCIC established price; 

(14) Crops that received a crop 

insurance indemnity, NAP payment, or 

WHIP+ payment based on the quantity 

of production that was considered 

unmarketable; 

(15) Crops for which the producer 

previously received a crop insurance 

indemnity, NAP payment, or WHIP+ 

payment for which production was 

reported as salvage value or secondary 

use; 

(16) Sugar beets for which a member 

of a cooperative processor received a 

payment through a cooperative 

agreement; and 

(17) Crops that were destroyed. 

(c) Only affected production from 

initial crop acreage will be eligible for 

a QLA Program payment, unless the 

provisions for subsequent crops in this 

section are met. All plantings of an 

annual or biennial crop are considered 

the same as a planting of an initial crop 

in tropical regions as defined in part 

1437, subpart F, of this title. 

(d) In cases where there is double 

cropped acreage, affected production of 

each crop may be eligible only if the 

specific crops are approved by the FSA 

State committee as eligible double 

cropping practices in accordance with 

procedures approved by the Deputy 

Administrator. 

(e) Participants having affected 

production from multiple plantings may 

receive payments for each planting only 

if the planting meets the requirements of 

part 1437 of this title and all other 

provisions of this subpart are satisfied. 

§ 760.1805 Qualifying disaster events. 

(a) A producer is eligible for payments 

under this subpart only if the producer’s 

affected production of an eligible crop 

suffered a crop quality loss due to a 

qualifying disaster event. 

(b) A crop quality loss due to a 

qualifying disaster event must have 

occurred on acreage that was physically 

located in a county that received a: 

(1) Presidential Emergency Disaster 

Declaration authorizing public 

assistance for categories C through G or 

individual assistance due to a qualifying 

disaster event occurring in the 2018 or 

2019 calendar years; or 

(2) Secretarial Disaster Designation for 

a qualifying disaster event occurring in 

the 2018 or 2019 calendar years. 

(c) A producer with a crop quality 

loss on acreage not physically located in 

a county that was eligible under 

paragraph (b) of this section will be 

eligible for the QLA Program for losses 

due to qualifying disaster events only if 

the producer provides supporting 

documentation from which the FSA 

county committee determines that the 

crop quality loss on the unit was 

reasonably related to a qualifying 

disaster event as specified in this 

subpart. Supporting documentation may 

include furnishing climatological data 

from a reputable source or other 

information substantiating the claim of 

loss due to a qualifying disaster event. 

§ 760.1806 Ineligible losses. 

(a) A loss is not eligible under this 

subpart if any of the following apply: 

(1) The cause of loss is determined by 

FSA to be the result of poor 

management decisions, poor farming 

practices, or drifting herbicides; 

(2) The loss could have been 

mitigated using good farming practices, 

including losses due to high moisture 

content that could be mitigated by 

following best practices for drying and 

storing the crop; 

(3) The qualifying disaster event 

occurred after the crop was harvested; 

(4) FSA or RMA have previously 

disapproved a notice of loss for the crop 

and disaster event, unless that notice of 

loss was disapproved solely because it 

was filed after the applicable deadline; 

or 

(5) The cause of loss was due to: 

(i) Conditions or events occurring 

outside of the applicable growing season 

for the crop; 

(ii) Insect infestation; 

(iii) Water contained or released by 

any governmental, public, or private 

dam or reservoir project if an easement 

exists on the acreage affected by the 

containment or release of the water; 

(iv) Failure of a power supply or 

brownout; or 

(v) Failure to harvest or market the 

crop due to lack of a sufficient plan or 

resources. 

(b) [Reserved] 

§ 760.1807 Miscellaneous provisions. 

(a) All persons with a financial 

interest in a legal entity receiving 

payments under this subpart are jointly 

and severally liable for any refund, 

including related charges, that is 

determined to be due to FSA for any 

reason. 

(b) In the event that any application 

under this subpart resulted from 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 449 

erroneous information or a 

miscalculation, the payment will be 

recalculated and any excess refunded to 

FSA with interest to be calculated from 

the date of the disbursement. 

(c) Any payment to any participant 

under this subpart 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 3 of this 

chapter apply to payments made under 

this subpart. 

(d) Any participant entitled to any 

payment may assign any payment(s) in 

accordance with regulations governing 

the assignment of payments in part 3 of 

this chapter. 

(e) The regulations in parts 11 and 

780 of this title apply to determinations 

under this subpart. 

§ 760.1808 General provisions. 

(a) Eligibility and payments under 

this subpart will be determined based 

on the county where the affected 

production was harvested. 

(b) FSA county committees will make 

any necessary adjustments to the 

applicant’s affected production and 

other information on the application 

form used to calculate a payment when 

the county committee determines: 

(1) Additional documentation has 

been requested by FSA but has not been 

provided by the participant; 

(2) The loss is due to an ineligible 

cause; or 

(3) The participant has a contract 

providing a guaranteed payment for all 

or a portion of the crop. 

(c) Unless otherwise specified, all 

eligibility provisions of part 1437 of this 

title also apply to tropical crops for 

eligibility under this subpart. 

(d) FSA will use the most reliable data 

available at the time payments under 

this subpart are calculated. If additional 

data or information is provided or 

becomes available after a payment is 

issued, FSA will recalculate the 

payment amount and the producer must 

return any overpayment amount to FSA. 

In all cases, payments can only issue 

based on the payment formula for losses 

that affirmatively occurred. 

(e) Production that is commingled 

between counties, crop years, or 

ineligible and eligible acres before it 

was a matter of record or combination 

of record and cannot be separated by 

using records or other means acceptable 

to FSA will be prorated to each 

respective year, county, or type of 

acreage, respectively. 

§ 760.1809 Payment and adjusted gross 

income limitation. 

(a) A person or legal entity, other than 

a joint venture or general partnership, is 

eligible to receive, directly or indirectly, 

payments of not more than $125,000 for 

each of the 2018, 2019, and 2020 crop 

years under this subpart. 

(b) Payments made to a joint 

operation, including a joint venture or 

general partnership, cannot exceed the 

amount determined by multiplying the 

maximum payment amount specified in 

paragraph (a) of this section by the 

number of persons and legal entities, 

other than joint operations, that 

comprise the ownership of the joint 

operation. 

(c) The direct attribution provisions in 

§ 1400.105 of this title apply to 

payments under this subpart. 

(d) The notification of interest 

provisions in § 1400.107 of this title 

apply to payments under this subpart. 

(e) The provisions for recognizing 

persons added to a farming operation for 

payment limitation purposes as 

described in § 1400.104 of this title 

apply to payments under this subpart. 

(f) The $900,000 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, 

apply to each applicant for the QLA 

Program unless at least 75 percent of the 

person or legal entity’s average AGI is 

derived from farming, ranching, or 

forestry-related activities. A person’s or 

legal entity’s average AGI for each of the 

program years 2018, 2019 or 2020, is 

determined by using the average of the 

adjusted gross incomes for the 3 taxable 

years preceding the most immediately 

preceding taxable year. If the person’s or 

legal entity’s average AGI is below 

$900,000 or at least 75 percent of the 

person or legal entity’s average AGI is 

derived from farming, ranching, or 

forestry-related activities, the person or 

legal entity, is eligible to receive 

payments under this subpart. 

§ 760.1810 Time and method of 

application. 

(a) A completed FSA–898, Quality 

Loss Adjustment (QLA) Program 

Application, must be submitted in 

person, by mail, email, or facsimile to 

any FSA county office by the close of 

business on March 5, 2020. 

(b) An application submitted in 

accordance with paragraph (a) of this 

section is not considered valid and 

complete for issuance of payment under 

this subpart unless FSA determines all 

the applicable eligibility provisions 

have been satisfied and the producer 

has submitted all of following by March 

19, 2020: 

(1) Documentation required by 

§ 760.1811; 

(2) FSA–578, Report of Acreage, for 

all acreage for any crop for which 

payments under this subpart are 

requested; 

(3) FSA–895, Crop Insurance and/or 

NAP Coverage Agreement; and 

(4) For forage crops, FSA–899, 

Historical Nutritional Value Weighted 

Average Worksheet, if verifiable 

documentation of historical nutrient 

factors is available. 

(c) In addition to the forms listed in 

paragraph (b) of this section, applicants 

must also submit all the following 

eligibility forms within 60 days from the 

date of signing the QLA Program 

application if not already on file with 

FSA: 

(1) AD–1026, Highly Erodible Land 

Conservation (HELC) and Wetland 

Conservation Certification; 

(2) CCC–902 Automated, Farm 

Operating Plan for Payment Eligibility 

2009 and Subsequent Program Years; 

(3) CCC–941 Average Adjusted Gross 

Income (AGI) Certification and Consent 

to Disclosure of Tax Information; and 

(4) CCC–942 Certification of Income 

from Farming, Ranching and Forestry 

Operations, if applicable. 

(d) Failure to submit all required 

forms by the applicable deadlines in 

paragraphs (b) and (c) of this section 

may result in no payment or a reduced 

payment. 

(e) Application approval and payment 

by FSA does not relieve a participant 

from having to submit any form 

required, but not filed, according to this 

section. 

(f) Once signed by a producer, the 

application is considered to contain 

information and certifications of and 

pertaining to the producer regardless of 

who entered the information on the 

application. 

(g) The producer applying for 

payment under this subpart certifies the 

accuracy and truthfulness of the 

information provided in the application 

as well as any documentation filed with 

or in support of the application. All 

information is subject to verification or 

spot check by FSA at any time, either 

before or after payment is issued. 

Refusal to allow FSA or any agency of 

the USDA to verify any information 

provided will result in the participant’s 

forfeiting eligibility for payment under 

this subpart. FSA may at any time, 

including before, during, or after 

processing and paying an application, 

require the producer to submit any 

additional information necessary to 

implement or determine any eligibility 


jbell on DSKJLSW7X2PROD with RULES
450 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 

provision of this subpart. Furnishing 

information specified in this subpart is 

voluntary; however, FSA may choose 

not to act on the application or approve 

payment if the required information is 

not provided. Providing a false 

certification will result in ineligibility 

and can also be punishable by 

imprisonment, fines, and other 

penalties. 

§ 760.1811 Required documentation and 

verification. 

(a) If requested by FSA, an applicant 

must provide documentation that 

establishes the applicant’s ownership 

share and value at risk in the crop. 

(b) The applicant must provide 

acceptable documentation that is dated 

and contains all information required to 

substantiate the applicant’s certification 

to the satisfaction of the FSA county 

committee. Verifiable documentation is 

required to substantiate the total dollar 

value loss and associated affected 

production, grading factors, and 

nutritional factors. FSA may verify the 

records with records on file at the 

warehouse, gin, or other entity that 

received or may have received the 

reported production. Reliable 

production records are required to 

substantiate the reported amount of 

affected production for applications not 

based on the total dollar value loss. 

(c) To be considered acceptable, 

verifiable documentation for grain crops 

that were sold may come from any time 

between harvest and sale of the affected 

production, unless the FSA county 

committee determines the record is not 

representative of the condition within 

30 days of harvest. For all other crops, 

the verifiable documentation must come 

from tests or analysis completed within 

30 days of harvest, unless the FSA 

county committee determines that the 

record is representative of the condition 

of the affected production at time of 

harvest. Examples of acceptable records 

for purposes of this paragraph (c) 

include: 

(1) Warehouse grading sheets; 

(2) Settlement sheets; 

(3) Sales receipts showing grade and 

price or disposition to secondary market 

due to quality; and 

(4) Laboratory test results. 

(d) For forage crops, producers must 

submit verifiable documentation 

showing the nutrient factors for the 

affected production. Producers must 

also submit verifiable documentation of 

the historical nutrient factors for the 3 

preceding crop years if available. The 

nutrient factors that must be 

documented for a crop will determined 

by the FSA county committee based on 

the standard practice for the crop in that 

county. 

(e) For all crops other than forage 

crops, producers must submit verifiable 

documentation of the total dollar value 

loss due to quality, if available, and 

verifiable documentation of grading 

factors due to quality. 

(f) The participant is responsible for: 

(1) Retaining, providing, and 

summarizing, at time of application and 

whenever required by FSA, the best 

available verifiable production records 

for the crop; 

(2) Providing the information in a 

manner that can be easily understood by 

the FSA county committee; and 

(3) Providing supporting 

documentation about the disaster event 

if the FSA county committee has reason 

to question the disaster event. 

(e) Participants must provide all 

records for any production of a crop that 

is grown with an arrangement, 

agreement, or contract for guaranteed 

payment. 

(f) Participants are required to retain 

documentation in support of their 

application for 3 years after the date of 

approval. 

(g) Participants receiving QLA 

Program payments or any other person 

who furnishes such information to 

USDA must permit authorized 

representatives of USDA or the 

Government Accountability Office, 

during regular business hours, to enter 

the agricultural operation and to 

inspect, examine, and make copies of 

books, records, or other items for the 

purpose of confirming the accuracy of 

the information provided by the 

participant. 

§ 760.1812 Payment calculation. 

(a) Payments will be calculated 

separately for crops based on the crop 

type, intended use, certified organic or 

conventional status, county, and crop 

year. 

(b) For forage crops with verifiable 

documentation of nutrient factors for 

the affected production and for the 3 

preceding crop years, the payment will 

be equal to the producer’s total affected 

production multiplied by the producer’s 

verifiable percentage of loss, multiplied 

by the average market price, multiplied 

by 70 percent. 

(c) For forage crops with verifiable 

documentation of nutrient factors for 

the affected production but not for the 

3 preceding crop years, the payment 

will be equal to the producer’s total 

affected production multiplied by the 

county average percentage of loss in 

paragraph (f) of this section, multiplied 

by the average market price, multiplied 

by 70 percent, multiplied by 50 percent. 

(d) For crops other than forage with 

verifiable documentation of the total 

dollar value loss due to quality, the 

payment will be equal to the producer’s 

total dollar value loss on the affected 

production, multiplied by 70 percent. 

(e) For crops other than forage 

without verifiable documentation of the 

total dollar value loss but with verifiable 

documentation of grading factors, the 

payment will be equal to the producer’s 

affected production multiplied by the 

county average loss per unit of measure 

in paragraph (g) of this section, 

multiplied by 70 percent, multiplied by 

50 percent. 

(f) The county average percentage of 

loss is the average percentage of loss 

from producers eligible for payment 

under paragraph (b) of this section if at 

least 5 producers in a county are eligible 

for payment for a crop under paragraph 

(b) of this section. If less than 5 

producers in a county are eligible for 

payment for a crop under paragraph (b) 

of this section, the Deputy 

Administrator will: 

(1) Determine a county average 

percentage of loss based on the best 

available data, including, but not 

limited to, evidence of losses in 

contiguous counties; or 

(2) If a county average percentage of 

loss cannot be determined due to 

insufficient data, not issue payments to 

applicants under paragraph (c) of this 

section. 

(g) The county average loss per unit 

of measure is based on the weighted 

average sales price from producers 

eligible for payment under paragraph (d) 

of this section if at least 5 producers in 

a county are eligible for payment for a 

crop under paragraph (d) of this section. 

If less than 5 producers are eligible for 

payment in a county under paragraph 

(d) of this section, the Deputy 

Administrator will: 

(1) Determine a county average loss 

per unit of measure based on the best 

available data, including, but not 

limited to, evidence of losses in 

contiguous counties; or 

(2) If a county average loss per unit of 

measure cannot be determined due to 

insufficient data, not issue payments to 

applicants under paragraph (e) of this 

section. 

§ 760.1813 Availability of funds and timing 

of payments. 

(a) Payments will be issued after the 

application period has ended and all 

applications have been reviewed by 

FSA. 

(b) In the event that, within the limits 

of the funding made available by the 

Secretary, approval of eligible 

applications would result in payments 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 451 

1See §§ 1400.500(a) and 1400.1(a)(4) of this title. 

1 DOE’s online database may be found at 

energy.gov/guidance. 

2Executive Order 13891 defines ‘‘significant 

guidance document’’ as ‘‘a guidance document that 

may reasonably be anticipated to: (i) Lead to an 

annual effect on the economy of $100 million or 

more or adversely affect in a material way the 

economy, a sector of the economy, productivity, 

competition, jobs, the environment, public health or 

safety, or State, local, or tribal governments or 

communities; (ii) create a serious inconsistency or 

otherwise interfere with an action taken or planned 

by another agency; (iii) materially alter the 

budgetary impact of entitlements, grants, user fees, 

or loan programs or the rights and obligations of 

recipients thereof; or (iv) raise novel legal or policy 

issues arising out of legal mandates, the President’s 

priorities, or the principles of Executive Order 

12866.’’ (84 FR 55235, 55236) 

in excess of the amount available, FSA 

will prorate payments by a national 

factor to reduce the payments to an 

amount that is less than available funds 

as determined by the Secretary. 

(c) Applications and claims that are 

unpaid or prorated 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. 

§ 760.1814 Requirement to purchase crop 

insurance or NAP coverage. 

(a) For the first 2 consecutive crop 

years for which crop insurance or NAP 

coverage is available after the 

enrollment period for the QLA Program 

ends, a participant who receives 

payment under this subpart for a crop 

loss in a county must obtain: 

(1) For an insurable crop, crop 

insurance with at least a 60 percent 

coverage level for that crop in that 

county; or 

(2) For a NAP-eligible crop, NAP 

coverage with a coverage level of 60 

percent. 

(b) Participants who exceed the 

average adjusted gross income 

limitation for NAP payment eligibility 1

for the applicable crop year may meet 

the purchase requirement specified in 

paragraph (a)(2) of this section by 

purchasing Whole-Farm Revenue 

Protection crop insurance coverage, if 

eligible, or paying the NAP service fee 

and premium even though the 

participant will not be eligible to receive 

a NAP payment due to the average 

adjusted gross income limit. 

(c) The final crop year to purchase 

crop insurance or NAP coverage to meet 

the requirements of paragraph (a) of this 

section is the 2023 crop year. 

(d) A participant who obtained crop 

insurance or NAP coverage for the crop 

in accordance with the requirements for 

WHIP+ in § 760.1517 is considered to 

have met the requirement to purchase 

crop insurance or NAP coverage for the 

QLA Program. 

(e) If a producer fails to obtain crop 

insurance or NAP coverage as required 

in this section, the producer must 

reimburse FSA for the full amount of 

QLA Program payment plus interest. A 

producer will only be considered to 

have obtained NAP coverage for the 

purposes of this section if the 

participant submitted a NAP application 

for coverage and paid the requisite NAP 

service fee and any applicable premium 

by the applicable deadline and 

completed all program requirements 

required under the coverage agreement, 

including filing an acreage report. 

Richard Fordyce, 

Administrator, Farm Service Agency. 

[FR Doc. 2020–28914 Filed 1–5–21; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF ENERGY 

10 CFR Part 1061 

RIN 1990–AA50 

Procedures for the Issuance of 

Guidance Documents 

AGENCY: Office of the General Counsel, 

Department of Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) publishes this final rule to 

establish procedures for the issuance of 

DOE guidance documents in accordance 

with Executive Order 13891. In this 

final rule, DOE establishes internal 

agency requirements for the contents of 

guidance documents, and procedures 

for providing notice of, and soliciting 

public comment on, certain guidance 

documents. This final rule also 

establishes procedures for the public to 

petition DOE to modify or withdraw 

guidance documents. 

DATES: The effective date of this rule is 

February 5, 2021. 

ADDRESSES: The docket for this 

rulemaking, which includes Federal 

Register notices, comments, and other 

supporting documents/materials, is 

available for review at https://

www.regulations.gov. All documents in 

the docket are listed in the https://

www.regulations.gov index. However, 

not all documents listed in the index, 

such as those containing information 

that is exempt from public disclosure by 

law, may be publicly available. A link 

to the docket web page can be found at 

https://www.regulations.gov/ 

document?D=DOE-HQ-2020-0033-0001. 

The docket web page explains how to 

access all documents, including public 

comments, in the docket. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Matthew Ring, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–33, 1000 

Independence Avenue SW, Washington, 

DC 20585, (202) 586–2555, Email: 

Guidance@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Final Rule 

In this final rule, DOE incorporates 

into the Code of Federal Regulations a 

new 10 CFR part 1061, which 

implements the requirements of 

Executive Order 13891, ‘‘Promoting the 

Rule of Law Through Improved Agency 

Guidance Documents.’’ (84 FR 55235 

(Oct. 15, 2019)) Among other things, 

Executive Order 13891 requires agencies 

to provide more transparency for their 

guidance documents by creating a 

searchable online database for current 

guidance documents,1 and by 

establishing procedures to allow the 

public to comment on significant 

guidance documents and to petition the 

agency to withdraw or modify guidance 

documents.2 Moreover, the Executive 

Order requires agencies to clearly state 

in their guidance documents that such 

guidance does not have the force and 

effect of law and is not legally binding, 

except as authorized by law or as 

incorporated into a contract. (84 FR 

55235, 55237) 

This final rule applies to all DOE 

guidance documents, as defined by 

Executive Order 13891, including the 

exceptions listed in section 2 of the 

Executive Order. This final rule also 

lists specific types of documents and 

communications that fall within the 

broader exceptions listed in the 

Executive Order (e.g., speeches and 

presentations given by DOE officials, 

legal positions taken in litigation or 

enforcement actions). (See also OMB M– 

20–02, Guidance Implementing 

Executive Order 13891, Titled 

‘‘Promoting the Rule of Law Through 

Improved Agency Guidance 

Documents’’ (Oct. 31, 2019), available at 

https://www.whitehouse.gov/wpcontent/uploads/2019/10/M-20-02- 

Guidance-Memo.pdf). This final rule 

also adopts the same definition of 

‘‘significant guidance document’’ as 

section 2 of Executive Order 13891. 

In accordance with Executive Order 

13891, this final rule requires that all 

DOE guidance documents clearly state 

that they do not have the force and 

effect of law and are not legally binding 

on the public, and that they are only 

intended to provide clarity to the public 


jbell on DSKJLSW7X2PROD with RULES