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

33795 

Vol. 83, No. 138 

Wednesday, July 18, 2018 

1The 2017 WHIP is not related to the USDA 

program administered by the Natural Resources 

Conservation Service named the Wildlife Habitat 

Incentives Program (WHIP). 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Part 760 

RIN 0560–AI39 

2017 Wildfires and Hurricanes 

Indemnity Program 

AGENCY: Farm Service Agency, USDA. 

ACTION: Final rule. 

SUMMARY: The 2017 Wildfires and 

Hurricanes Indemnity Program (2017 

WHIP) will provide payments to eligible 

producers who suffered eligible crop, 

tree, bush, and vine losses resulting 

from hurricanes and wildfires that 

occurred in the 2017 calendar year, as 

authorized by the Bipartisan Budget Act 

of 2018 (BBA). This rule specifies the 

administrative provisions, eligibility 

requirements, application procedures, 

and payment calculations for 2017 

WHIP. 

DATES: Effective date: July 18, 2018. 

Comment date: We will consider 

comments on the Paperwork Reduction 

Act that we receive by: September 17, 

2018. 

ADDRESSES: We invite you to submit 

comments on this rule. In your 

comment, specify RIN 0560–AI39, and 

include the volume, date, and page 

number of this issue of the Federal 

Register. You may submit comments by 

either of the following methods: 

• Federal Rulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Director, PECD FSA, U.S. 

Department of Agriculture, 1400 

Independence Avenue SW, Stop 0522, 

Washington, DC 20250–0522. 

Comments will be available for 

viewing online at http://

www.regulations.gov. In addition, 

comments will be available for public 

inspection at the above address during 

business hours from 8 a.m. to 5 p.m., 

Monday through Friday, except 

holidays. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Berry, telephone: (202) 720–7641. 

Persons with disabilities who require 

alternative means for communication 

should contact the USDA Target Center 

at (202) 720–2600 (voice). 

SUPPLEMENTARY INFORMATION: 

Background 

BBA (Pub. L. 115–123) provided $2.36 

billion, available until December 31, 

2019, for disaster assistance for 

necessary expenses related to crop, tree, 

bush, and vine losses related to the 

consequences of Hurricanes Harvey, 

Irma, Maria, and other hurricanes and 

wildfires occurring in calendar year 

2017. Of the $2.36 billion available 

under BBA, the Secretary directed the 

Farm Service Agency (FSA), to provide 

nearly $2 billion in assistance to eligible 

producers through the 2017 WHIP.1

Additionally, approximately $340 

million of the available $2.36 billion is 

being provided to the State of Florida 

through a block grant to address the 

consequences of Hurricane Irma 

including losses to citrus production 

expected during the 2018, 2019, and 

2020 crop years. This final rule only 

covers disaster assistance for necessary 

expenses related to crop, tree, bush, and 

vine losses related to the consequences 

of Hurricanes Harvey, Irma, Maria, and 

other hurricanes and wildfires occurring 

in calendar year 2017 and does not 

discuss the terms and conditions of the 

block grant to Florida. 

As mandated by BBA, the total 

amount of payments received under 

2017 WHIP, crop insurance under the 

Federal Crop Insurance Act (FCIA; 7 

U.S.C. 1501–1524), and the Noninsured 

Crop Disaster Assistance Program (NAP; 

7 U.S.C. 7333) combined will not 

exceed 85 percent of the total losses for 

all 2017 WHIP participants with crop 

insurance or NAP coverage. Also, as 

required by BBA, the total amount of 

payments received under 2017 WHIP 

will not exceed 65 percent of the total 

losses for all participants without crop 

insurance or NAP coverage. BBA also 

requires all participants who receive 

2017 WHIP payments to purchase crop 

insurance or NAP coverage for the next 

2 available crop years, regardless of 

whether they had crop insurance or 

NAP coverage for 2017. This rule 

provides the eligibility requirements, 

application procedures, and payment 

calculation provisions for 

administration of 2017 WHIP. 

Due to the variety of crops and the 

timing of the hurricanes and wildfires, 

2017 WHIP covers losses resulting from 

the 2017 hurricanes and wildfires to 

crops that were intended for harvest in 

either the 2017 or 2018 crop year. 

For clarity, throughout this final rule, 

the word producer is used to refer to 

those persons or legal entities who have 

suffered losses and can apply for 2017 

WHIP; the term participant is used for 

a producer who applied for 2017 WHIP 

and has been determined eligible. 

Available Funding 

FSA will make an initial payment of 

up to 50 percent of an eligible 2017 

WHIP participant’s calculated 2017 

WHIP payment. By issuing initial 

payments, FSA can quickly provide 

disaster assistance to those who have 

suffered severe losses while ensuring 

that 2017 WHIP payments do not exceed 

the available funding and those funds 

are distributed equitably among eligible 

producers. If funds remain available 

after the initial payment, FSA will 

disburse the remainder of the 

participant’s payment. If eligible losses 

calculated based upon applications 

received exceed the amount of funding 

available, 2017 WHIP payments will be 

prorated using a national factor. 

Eligibility 

The 2017 WHIP payments are 

available to eligible producers who 

suffered an eligible loss to crops, trees, 

bushes, and vines or prevented planting 

due to a qualifying disaster event, which 

includes wildfires and hurricanes that 

occurred in the 2017 calendar year, and 

conditions related to those wildfires and 

hurricanes, such as excessive rain, high 

winds, flooding, mudslides, and heavy 

smoke. The 2017 WHIP payments for 

crop losses cover only production 

losses; they do not cover quality losses. 

Eligible crops include those for which 

crop insurance or NAP coverage is 

available, excluding crops intended for 

grazing. A list of crops covered by crop 

insurance is available through RMA’s 

Actuarial Information Browser at 

https://webapp.rma.usda.gov/apps/ 

ActuarialInformationBrowser2017/ 


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CropCriteria.aspx; this list is provided 

for reference and includes all 

commodities for which crop insurance 

can be obtained including crops 

intended for grazing, which are 

ineligible for 2017 WHIP. NAP coverage 

is available for the following 

commercial crops when crop insurance 

under section 508(b) or additional 

coverage under sections 508(c) or 508(h) 

of FCIA (7 U.S.C. 1508(b), (c), and (h)) 

is not available for: 

• Crops grown for food, excluding 

livestock and their by-products; 

• Crops planted and grown for 

livestock consumption, including but 

not limited to grain and forage crops; 

• Crops grown for fiber, excluding 

trees grown for wood, paper, or pulp 

products; and 

• The production of aquacultural 

species (including ornamental fish), 

floricultural crops, ornamental nursery 

plants, Christmas tree crops, turfgrass 

sod, sweet sorghum, biomass sorghum, 

industrial crops, seed crops, sea grass, 

and sea oats. 

Grazing and livestock losses are 

covered by existing programs that are 

funded by the Commodity Credit 

Corporation (CCC) and administered by 

FSA, such as the Livestock Indemnity 

Program (LIP), Emergency Assistance for 

Livestock, Honeybees, and Farm-Raised 

Fish Program (ELAP) and the Livestock 

Forage Disaster Program (LFP), and 

therefore are not covered by 2017 WHIP, 

as such would be a duplication of 

benefits. 

The Tree Assistance Program (TAP) 

provides cost-share for replanting and 

rehabilitation of eligible trees, while 

2017 WHIP provides payments based on 

the loss of value of the tree, bush, or 

vine. Therefore, participants who 

suffered tree, bush, and vine losses may 

receive both TAP payments and 2017 

WHIP payments for the same acreage 

because 2017 WHIP and TAP pay for 

different losses. 

Assistance for Florida citrus tree 

losses will be provided through a grant 

program administered by the State of 

Florida so tree losses are not eligible for 

2017 WHIP. Florida citrus crop losses, 

however, are eligible for 2017 WHIP. 

TAP is a cost share program that 

provides assistance for replanting trees, 

bushes, and vines. To the extent that 

expenses are paid via the block grant 

program; those expenses will not be 

eligible for TAP cost-share assistance. 

TAP is available only for expenses 

actually incurred by the eligible 

orchardist or nursery tree grower that 

are not covered, reimbursed, or paid for 

by anyone other than the eligible 

orchardist or nursery tree grower. 

Trees, bushes, and vines that were 

abandoned or not used for or intended 

for use for commercial production at the 

time of the loss are ineligible for 2017 

WHIP. 

The 2017 WHIP for hurricane losses 

and related conditions, such as 

excessive rain and flooding, will be 

available for eligible farms located in 

counties that received a qualifying 

Presidential Emergency Disaster 

Declaration or Secretarial Disaster 

Designation. A list of counties that 

received qualifying hurricane 

declarations and designations is 

available at https://www.fsa.usda.gov/ 

programs-and-services/disasterassistance-program/wildfires-andhurricanes-indemnity-program/index. 

Only producers in primary disaster 

counties qualify for 2017 WHIP based 

on the declaration or designation. 

Producers in counties that did not 

receive a qualifying hurricane 

declaration or designation, including 

those in counties contiguous to counties 

that received a Presidential declaration 

or Secretarial designation, may still 

apply for 2017 WHIP, but they must also 

provide supporting documentation to 

establish that the crop was directly 

affected by a hurricane or a related 

condition. The 2017 WHIP for losses 

due to wildfires and conditions related 

to wildfires, such as mudslides and 

heavy smoke, will be available in any 

county where a wildfire occurred, as 

determined by FSA county committees. 

Payment Limitation 

Each person and legal entity who is 

either a participant or member of a 

participant will have a single 2017 

WHIP payment limitation even though 

they may be eligible to receive payment 

for more than one crop year or type of 

loss (for example, for both crop 

production and tree losses). Once the 

payment limit is reached for any person 

or legal entity, the person or legal entity 

is not eligible to receive any additional 

2017 WHIP payment. For example, if a 

person or legal entity reaches the 

maximum payment based on losses to a 

2017 crop, that person or legal entity 

will not receive any additional 2017 

WHIP payment, even though there may 

have been losses to a 2018 crop, due to 

hurricanes or wildfires that occurred in 

calendar year 2017, as well. 

The payment limitation is based on 

the person’s or legal entity’s average 

adjusted gross income (AGI) and factors 

in the person’s or legal entity’s average 

adjusted gross farm income. Farm 

income includes income from activities 

related to farming, ranching, or forestry. 

Specifically, a person or legal entity, 

other than a joint venture or general 

partnership, cannot receive 2017 WHIP 

payments, directly or indirectly, of more 

than $125,000, unless at least 75 percent 

of the person or legal entity’s average 

AGI, as defined in § 760.1502, is derived 

from farming, ranching, or forestry 

related activities. If at least 75 percent 

of the person or legal entity’s average 

AGI is derived from farming, ranching, 

or forestry related activities and the 

participant provides the required 

certification and documentation, as 

discussed below, the person or legal 

entity, other than a joint venture or 

general partnership, is eligible to receive 

2017 WHIP payments, directly or 

indirectly, up to $900,000. Average AGI 

and average adjusted gross farm income 

are calculated based on the person or 

legal entity’s average income in 2013, 

2014, and 2015, which are the relevant 

years to calculate AGI for 2017 WHIP. 

To receive more than $125,000 in 

2017 WHIP payments, applicants must 

certify that as a person or legal entity 

they are eligible for the $900,000 

payment limitation (that is, that at least 

75 percent of the person’s or legal 

entity’s average AGI is derived from 

farming, ranching, or forestry related 

activities). That certification must be 

submitted on form FSA–892, Request 

for an Exception to the WHIP Payment 

Limitation of $125,000, and 

accompanied by a certification from a 

certified public accountant or attorney 

that confirms the person or legal entity’s 

certification. If an applicant requesting 

the $900,000 payment limitation is a 

legal entity, all members of that entity 

must also complete FSA–892 and 

provide the required certification 

according to the direct attribution 

provisions in § 1400.105, ‘‘Attribution of 

Payments.’’ If a legal entity would be 

eligible for the $900,000 payment 

limitation based on the legal entity’s 

average AGI from farming but a member 

of that legal entity either does not 

complete a FSA–892 or is not eligible 

for the $900,000 payment limitation, the 

payment to the legal entity will be 

reduced for the applicable limitation 

that will apply to the share of the 2017 

WHIP payment attributed to that 

member. 

Application Process 

Producers must submit 2017 WHIP 

applications to their administrative FSA 

county office by the deadline that will 

be announced by the FSA Deputy 

Administrator for Farm Programs. A 

complete 2017 WHIP application 

consists of: 

• FSA–890, Wildfires and Hurricanes 

Indemnity Program (WHIP) Application; 

• FSA–891, Crop Insurance and/or 

NAP Coverage Agreement; 


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• FSA–892, Request for an Exception 

to the WHIP Payment Limitation of 

$125,000, if more than 75 percent of an 

applicant’s average AGI is from farm 

income and the applicant wants to be 

eligible to receive 2017 WHIP payments 

of more than $125,000, up to the 

$900,000 payment limitation; and 

• FSA–893, 2018 Citrus Actual 

Production History and Approved Yield 

Record, Florida Only, for applicants 

requesting payments for losses to citrus 

crops located in Florida. 

Persons and legal entities who do not 

submit FSA–892 and a certification 

from a CPA or attorney will only be 

considered for the lower payment 

limitation of $125,000. If not already on 

file with FSA, applicants must also 

submit AD–1026, Highly Erodible Land 

Conservation (HELC) and Wetland 

Conservation Certification; CCC–902, 

Farm Operating Plan for Payment 

Eligibility; and a report of acreage on 

FSA–578, Report of Acreage, or in 

another format acceptable to FSA for all 

acres of each crop for which 2017 WHIP 

payments are being requested. 

Applicants must also submit verifiable 

or reliable crop records if not already on 

file for crop insurance or NAP purposes; 

producers who do not have verifiable or 

reliable records will have 2017 WHIP 

payments determined based on the 

lower of either the actual loss certified 

by the producer and determined 

acceptable by FSA or the county 

expected yield and county disaster 

yield, which is the production that a 

producer would have been expected to 

make based on the eligible disaster 

conditions in the county, as determined 

by the FSA county committee. Yield 

means unit of production, measured in 

bushels, pounds, or other unit of 

measure, per area of consideration, 

usually measured in acres. In no case 

will 2017 WHIP payments be issued or 

provided for losses that cannot be 

determined to have occurred to the 

satisfaction of FSA. 

2017 WHIP Payments 

In general, all 2017 WHIP payments 

for crop production losses will take into 

consideration the difference between 

the expected value of the crop and the 

actual value of the crop as a result of the 

wildfire or hurricane damage. The value 

is determined by FSA using crop 

insurance or NAP prices. For tree, bush, 

and vine losses, 2017 WHIP payments 

will be based on the loss of value of the 

trees, bushes, and vines that were 

destroyed or damaged due to the 

wildfire or hurricane. Various factors 

will be considered to determine the 

payments, as explained below in detail; 

however, overall, the payment 

calculation includes reductions based 

on any additional payments that the 

participant received from crop 

insurance indemnities, NAP payments, 

and salvage value. Further, as noted 

above, 2017 WHIP is prohibited from 

paying for more than 85 percent of the 

total losses. Therefore, a 2017 WHIP 

factor will be applied to reduce the 

participant’s payment to ensure that 

total 2017 WHIP payments are no more 

than 85 percent of the total losses by all 

2017 WHIP participants, as described 

below. 

The specific payment calculations 

that will be used for each type of 

commodity are detailed below. Each of 

the calculations includes numerous 

elements to determine the accurate and 

equitable amount to pay for the various 

losses. Some of the data will come from 

the applications while other numbers 

used in the calculations will be 

determined by FSA. In general, the 

calculations are consistent with 

previous ad hoc disaster assistance 

programs administered by FSA. 

2017 WHIP Factors 

After the eligible loss is determined 

and quantified, a 2017 WHIP payment 

factor will be applied based on the level 

of crop insurance coverage or NAP 

coverage a participant obtained for a 

crop. The ‘‘coverage level’’ is the 

percentage determined by multiplying 

the elected yield percentage under a 

crop insurance policy or NAP coverage 

by the elected price percentage. 

Participants who elected higher levels of 

crop insurance or NAP coverage will 

receive a higher level of compensation 

from the combination of the 2017 WHIP 

payment amount plus the crop 

insurance indemnity or NAP payment, 

as compared to a participant who 

elected a lower level of crop insurance 

or NAP coverage. As detailed in the 

following table, the 2017 WHIP factors 

will be between 65 percent, for 

uninsured crops, and 95 percent, for 

crops for which a producer obtained 

greater than an 80 percent crop 

insurance coverage level. Total 2017 

WHIP payments issued to all 

participants will not exceed 85 percent 

of their collective losses, as authorized 

by BBA. 

Coverage level 

2017 WHIP 

payment 

factor 

(percent) 

No crop insurance or No NAP 

coverage ............................... 65 

Catastrophic coverage .............. 70 

More than catastrophic coverage but less than 55 percent ....................................... 72.5 

Coverage level 

2017 WHIP 

payment 

factor 

(percent) 

At least 55 percent but less 

than 60 percent ..................... 75 

At least 60 percent but less 

than 65 percent ..................... 77.5 

At least 65 percent but less 

than 70 percent ..................... 80 

At least 70 percent but less 

than 75 percent ..................... 85 

At least 75 percent but less 

than 80 percent ..................... 90 

At least 80 percent ................... 95 

More producers obtained coverage at 

the lower levels than obtained coverage 

at the higher levels. Therefore, 

including payments to individual 

participants at 90 and 95 percent, total 

2017 WHIP payments will not exceed 85 

percent of the value of total losses. 

Payment Calculation for Yield-Based 

Crop Losses 

The 2017 WHIP payments for yieldbased crop losses will be calculated 

based on all acreage of the crop in a 

unit. The eligible crop acres will be 

multiplied by the 2017 WHIP yield, the 

price for the crop, and the WHIP factor, 

and reduced by the participant’s 

production multiplied by the price, and 

that result will be multiplied by the 

participant’s share and reduced by the 

gross insurance indemnity or NAP 

payment and any salvage value. 

Additional adjustments will be applied 

to 2017 WHIP payment calculation 

based on whether the crop was 

prevented planted or unharvested to 

account for expenses that were not 

incurred. 

The 2017 WHIP yield is the approved 

yield based on the producer’s actual 

production history (APH) for insured 

and NAP-covered crops, or the county 

expected yield for uninsured crops 

without NAP coverage and participants 

in Puerto Rico. Using county expected 

yields for producers who did not have 

crop insurance or NAP coverage allows 

FSA to quickly provide disaster 

assistance payments to affected 

producers, by not requiring producers 

and FSA resources to spend additional 

time on the burden of computing 

approved yields, and improves integrity 

by not allowing producers who do not 

have adequate records an opportunity to 

provide production records from prior 

years. FSA recognizes that due to the 

severity of hurricanes affecting Puerto 

Rico, flexibility regarding required 

documentation is necessary in order to 

provide needed payments to producers 

who suffered extreme losses. FSA is 

using this streamlined determination for 


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yields for all 2017 WHIP applicants in 

Puerto Rico to provide payments in a 

timely manner to producers who 

suffered known severe losses but may be 

unable to provide required 

documentation due to the extreme 

circumstances faced by the agricultural 

sector. FSA’s decision to determine the 

extent of eligibility differently in Puerto 

Rico will have no impact on or be a 

consideration for losses sustained 

outside of Puerto Rico. 

The participant’s production for the 

crop year which suffered the loss (2017 

or 2018, depending on the specific crop 

and when it would have been harvested) 

is based on their verifiable or reliable 

production records for that crop year. 

Reliable production records 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 county 

committee. These records may already 

be on file if the crop was covered by 

crop insurance or NAP. If not already on 

file, or if the participant believes that 

RMA or NAP records are inaccurate or 

incomplete, the participant is 

responsible for providing verifiable or 

reliable records as specified in 

§ 760.1512. Participants who do not 

have verifiable or reliable records will 

have their payments limited to the 

lower of either: 

• The actual loss certified by the 

producer and determined acceptable by 

FSA, or 

• The county disaster yield, as 

established by the FSA county 

committee. 

Payment Calculation for Value Loss 

Crops Losses 

Assessing loss for value loss crops, 

such as ornamental nursery and 

aquaculture, is significantly different 

than for yield-based crops. The 

participant’s inventory of a typical value 

loss crop may fluctuate from week to 

week, sometimes rapidly, in the course 

of normal business operations for 

reasons that may be unrelated to a 

disaster. As a result, 2017 WHIP 

payments for value loss crops will be 

based on inventory and losses before 

and after the qualifying disaster event. 

The 2017 WHIP payments for value 

loss crops will be based on the field 

market value of the crop before and after 

the qualifying disaster event. 

Specifically, payments for value loss 

crops will be calculated using the field 

market value of the crop before the 

disaster multiplied by the 2017 WHIP 

factor, reduced by the sum of the field 

market value after the disaster and the 

value of losses due to ineligible causes 

of loss, multiplied by the participant’s 

share, reduced by the gross insurance 

indemnity or NAP payment amount and 

salvage value of the crop. 

NAP value loss and tropical crop 

eligibility provisions in 7 CFR part 1437 

apply to 2017 WHIP for value loss and 

tropical crops. Nursery stock of trees, 

bushes, and vines is considered a value 

loss crop rather than a tree, bush, or 

vine loss for 2017 WHIP payment 

calculations. 

Payment Calculation for Tree, Bush, 

and Vine Losses 

Payments for trees, bush, and vine 

losses will be based on federal crop 

insurance principles and will be 

determined separately for different 

growth stages, as determined by the 

Deputy Administrator of Farm 

Programs, FSA. Each growth stage will 

have an associated price and damage 

factor to determine the value lost when 

a tree, bush, or vine is damaged and 

requires rehabilitation but is not 

completely destroyed. 

Payments will be calculated by 

multiplying the expected value of the 

eligible damaged and destroyed trees, 

bushes, or vines by the 2017 WHIP 

factor, reduced by the actual value of 

the trees, bushes, or vines, and 

multiplied by the producer’s share. FSA 

will subtract the amount of any 

insurance indemnity received for trees, 

bushes, and vines covered by an 

insurance plan and any secondary use 

or salvage value. The expected value is 

determined by multiplying the total 

number of trees, bushes, or vines that 

were damaged or destroyed by a 

qualifying disaster event by the price. 

The actual value is the expected value 

minus the value of the producer’s loss, 

which is calculated by multiplying the 

number of trees, bushes, or vines 

damaged by a qualifying disaster event 

by the damage factor, added to the 

number destroyed by a qualifying 

disaster event, and multiplied by the 

price. 

The county committee will adjust the 

number of damaged and destroyed trees, 

bushes, or vines, if it determines that 

the number of damaged or destroyed 

trees, bushes, or vines certified by the 

participant is inaccurate. 

Future Crop Insurance or NAP 

Coverage 

BBA requires all 2017 WHIP payment 

recipients to obtain coverage under an 

FCIA plan (crop insurance) or NAP 

coverage, as may be applicable and if 

available, for the next 2 crop years. 

Because sign-up for crop insurance and 

NAP coverage has already begun for 

some 2019 crops and due to potential 

conflicts or short time periods between 

2017 WHIP sign-up dates and crop 

insurance and NAP application closing 

dates, FSA is requiring 2017 WHIP 

participants to obtain crop insurance or 

NAP for the next 2 available consecutive 

crop years after the crop year for which 

2017 WHIP payments are paid, with the 

latest year for finally meeting 

compliance with this provision being 

the 2021 crop year. In other words, if 

the 2 consecutive years of coverage are 

not met by 2021 coverage year, the 

participant is ineligible for payments. 

Participants must obtain crop insurance 

or NAP, as may be applicable, at the 60 

percent coverage level or higher, if 

available. If NAP coverage at the 60 

percent coverage level is unavailable at 

the time of the timely filing of an 

application for coverage, the participant 

must obtain NAP catastrophic level of 

coverage (that is, basic 50/55 NAP 

coverage). 

There will be situations where a 2017 

WHIP participant, who does not have to 

meet any adjusted gross income 

requirement for the 2017 WHIP payment 

and for which crop insurance is not 

available for a specific crop, will have 

to obtain NAP coverage due to the 

purchase requirement in BBA. Section 

1001D of the Food Security Act of 1985 

(1985 Farm Bill) provides that a person 

or entity with adjusted gross income in 

amount greater than $900,000 is not 

eligible to participate in NAP. 

Accordingly, in order to reconcile this 

restriction in the 1985 Farm Bill and the 

BBA requirement to obtain NAP or crop 

insurance coverage, 2017 WHIP 

participants may meet the BBAs 

purchase requirement by purchasing 

Whole-Farm Revenue Protection crop 

insurance coverage, if eligible, or they 

may pay the applicable NAP service fee 

and premium despite their ineligibility 

for a NAP payment. In other words, the 

service fee and premium must be paid 

even though no NAP payment will be 

made because the adjusted gross income 

of the person or entity exceeds the 1985 

Farm Bill limitation. 

The crop insurance and NAP 

requirements are specific to the crop 

and county (physical location county for 

insurance and administrative county for 

NAP) for which 2017 WHIP payments 


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are paid. This means that a producer 

who receives a 2017 WHIP payment for 

a crop in a county (physical location 

county for insurance and administrative 

county for NAP) is required to purchase 

crop insurance or NAP coverage for the 

crop in the county for which the 

producer was issued a 2017 WHIP 

payment. Producers who received a 

2017 WHIP 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 2017 WHIP 

payments for that crop in that county 

with interest from the date of 

disbursement. This is a condition of 

payment eligibility specified by BBA 

and is therefore not subject to partial 

payment eligibility or other types of 

equitable relief. Producers who were 

paid 2017 WHIP on a crop in a county 

but do not plant that crop in a 

subsequent year are not required to 

purchase crop insurance or NAP 

coverage for that specific crop and year. 

Miscellaneous 

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 average 

AGI certifications and production 

records, is subject to spot check. 

Notice and Comment 

In general, the Administrative 

Procedure Act (5 U.S.C. 553) requires 

that a notice of proposed rulemaking be 

published in the Federal Register and 

interested persons be given an 

opportunity to participate in the 

rulemaking through submission of 

written data, views, or arguments with 

or without opportunity for oral 

presentation, except that when the rule 

involves a matter relating to public 

property, loans, grants, benefits, or 

contracts section 553 does not apply. 

This rule involved matters relating to 

benefits and is therefore being 

published as a final rule without the 

prior opportunity for comments. 

Effective Date 

The Administrative Procedure Act 

provides generally that before rules are 

issued by Government agencies, the rule 

is required to be published in the 

Federal Register, and the required 

publication of a substantive rule is to be 

not less than 30 days before its effective 

date. However, as noted above, the 

Administrative Procedure Act 

requirements, including the effective 

date delay, do not apply to rulemaking 

that involves a matter relating to benefit. 

Therefore, to provide benefits in a 

timely fashion, the 2017 WHIP 

regulations, are effective when 

published in the Federal Register. 

Executive Orders 12866, 13563, 13771 

and 13777 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 

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, ‘‘Regulatory 

Planning and Review,’’ 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, ‘‘Reducing 

Regulation and Controlling Regulatory 

Costs,’’ requires that, in order to manage 

the costs required to comply with 

Federal regulations, that for every new 

significant or economically significant 

regulation issued, the new costs must be 

offset by the elimination of at least two 

prior regulations. The OMB guidance in 

M–17–21, dated April 5, 2017, specifies 

that ‘‘transfers’’ are not covered by 

Executive Order 13771 but that changes 

in resource use that accompany transfer 

rules may qualify as costs or cost 

savings under Executive Order 13771. 

Although most of this rule’s impacts are 

income transfers between taxpayers and 

program beneficiaries, the associated 

cost-benefit analysis shows a 

government administrative cost of 

approximately $10 million (which is the 

equivalent of $0.53 million when 

annualized over a perpetual time 

horizon at a 7 percent discount rate). 

Therefore this rule is considered an 

Executive Order 13771 regulatory 

action. 

Cost Benefit Analysis Summary 

BBA provided up to $2.36 billion for 

2017 WHIP. Early estimates suggest that 

total 2017 WHIP payments could be 

lower than the $2.36 billion. However, 

in addition to producer payments, 

WHIP funds will be used for a $340 

million block grant to Florida that will 

provide further aid to producers with 

damaged trees. The federal government 

is expected to expend around $10 

million to manage 2017 WHIP and 

because of the 2017 WHIP mandate that 

producers purchase insurance, the 

government is expected to incur around 

$100 million in additional subsidy 

costs. The required policies will cost 

producers around $60 million. USDA 

estimates that payment limitation 

savings will be at least $50 million. 

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 FSA 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 2017 WHIP is mandated by 

BBA. The legislative intent for 

implementing 2017 WHIP is to provide 

payments to the producers who suffered 

eligible crop, tree, bush, and vine losses 

resulting from 2017 hurricanes and 

wildfires. 

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’’ (40 

CFR 1508.14), when not interrelated to 

natural or physical environmental 

effects. The limited discretionary 

aspects of the program (for example, use 


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of grants, and determining AGI and 

payment limitations) were designed to 

be consistent with established FSA 

disaster programs. As such, the 

Categorical Exclusions found at 7 CFR 

part 799.31 apply, specifically 7 CFR 

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

§ 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. As 

such, FSA has determined that the 

implementation of 2017 WHIP and the 

participation in 2017 WHIP do not 

constitute major Federal actions 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 

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 for 

compliance with 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 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. 

FSA has assessed the impact of this 

rule on Indian tribes and determined 

that this rule does not, to our 

knowledge, have tribal implications that 

required tribal consultation under 

Executive Order 13175. If a tribe 

requests consultation, FSA will work 

with USDA Office of Tribal Relations to 

ensure meaningful consultation is 

provided. 

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. 

SBREFA 

This rule is a major rule under 

SBREFA. SBREFA normally requires 

that an agency delay the effective date 

of a major rule for 60 days from the date 

of publication to allow for 

Congressional review. Section 808 of 

SBREFA allows an agency to make a 

major regulation effective immediately 

if the agency finds there is good cause 

to do so. The beneficiaries of this rule 

have suffered extensive damage due to 

the losses from the hurricanes and 

wildfires that occurred in 2017. 

Therefore, FSA finds that it would be 

contrary to the public interest to delay 

the effective date of this rule because it 

would delay implementation of 2017 

WHIP as required by BBA. The 

regulation needs to be effective to 

provide adequate time for producers to 

submit applications to request 

payments. Therefore, this rule is 

effective on the July 18, 2018. 

Federal Assistance Programs 

The title and number of the Federal 

Domestic Assistance Program found in 

the Catalog of Federal Domestic 

Assistance to which this rule applies is 

2017 Wildfires and Hurricanes 

Indemnity Program and 10.120. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995, the following 

new information collection request that 

supports 2017 WHIP and the block grant 

to Florida was submitted to OMB for 

emergency approval. OMB approved the 

6-month emergency information 

collection. Since the information 

collection activities will continue for 

more than the approved 6 months, in 

addition, through this rule, FSA is 

requesting comments from interested 

individuals and organizations on the 

information collection activities related 

to 2017 WHIP and the block grant to 

Florida as described in this rule. 

Following the 60-day public comment 

period for this rule, the information 

collection request will be submitted to 

OMB for the 3-year approval to ensure 

adequate time for the information 

collection for the duration of 2017 

WHIP. 

Title: 2017 WHIP and Block Grant to 

Florida. 

OMB Control Number: 0560–New. 

Form number(s) for 2017 WHIP: FSA– 

890, Wildfires and Hurricanes 

Indemnity Program (WHIP) Application; 

FSA–891, Crop Insurance and/or NAP 

Coverage Agreement; FSA–892, Request 

for an Exception to the WHIP Payment 

Limitation of $125,000, if applicable; 

and FSA–893, 2018 Citrus Actual 


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Production History and Approve Yield 

Records (Florida only). 

Type of Request: New Collection. 

Abstract: This information collection 

is required to support both the 

regulation in 7 CFR part 760, subpart O, 

for 2017 WHIP that establishes the 

requirements or eligible producers who 

suffered eligible crop, tree, bush, and 

vine losses resulting from 2017 

hurricanes and wildfires as specified in 

BBA and the block grant to Florida. The 

information collection is necessary to 

evaluate the application and other 

required paperwork for determining the 

producer’s eligibilities and assist in 

producer’s payment calculations. 

For the Grant to Florida, the same 

citrus growers are likely to apply for 

both 2017 WHIP and the grant because 

they will pay for different losses. The 

grant will pay for the tree replacement 

and 2017 WHIP will pay for citrus crop 

losses. FSA expects that Florida will use 

information provided to FSA by Florida 

applications as part of their 

documentation for application for tree 

replacement payments from Florida 

through the grant. Although we do not 

know what application Florida will use 

for the tree replacement payment 

applications, we estimate that it will 

take less time to complete than the FSA 

application. 

For the following estimated total 

annual burden on respondents, the 

formula used to calculate the total 

burden hour is the estimated average 

time per response multiplied by the 

estimated total annual responses. 

Estimate of Respondent Burden: 

Public reporting burden for this 

information collection is estimated to 

average 0.6983 hours per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed and completing and 

reviewing the collections of 

information. 

Type of Respondents: Producers or 

farmers. 

Estimated Annual Number of 

Respondents: 44,124. 

Estimated Number of Reponses Per 

Respondent: 1. 

Estimated Total Annual Responses: 

44,124. 

Estimated Average Time per 

Response: 0.6983 hours. 

Estimated Annual Burden on 

Respondents (WHIP applicants): 28,514. 

Estimated Annual Burden on 

Respondents (Florida Grant): 1,097. 

Estimated Total Annual Burden on 

Respondents: 29,611. 

For 2017 WHIP, the per form 

estimated burden is: 

Form name Form No. Number of 

respondents 

Total 

burden hours 

Wildfires and Hurricanes Indemnity Program Notification ......................... FSA–890 .......................................... 40,831 20,416 

Crop Insurance and/or NAP Coverage ..................................................... FSA–891 .......................................... 40,831 3,401 

Request for an Exception to the WHIP Payment Limitation of $125,000, 

WHIP only.

FSA–892 .......................................... 16,332 1,360 

2018 Citrus Actual Production History and Approve Yield Records (Florida only).FSA–893 .......................................... 3,293 274 

Wildfires and Hurricanes Indemnity Program Application (Continuation 

Sheet).

FSA–890 (continuation) ................... 12,250 3,062 

FSA is requesting comments on all 

aspects of this information collection to 

help us to: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

FSA, including whether the information 

will have practical utility; 

(2) Evaluate the accuracy of the FSA’s 

estimate of burden including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility and 

clarity of the information to be 

collected; 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology. 

All comments received in response to 

this notice, including names and 

addresses when provided, will be a 

matter of public record. Comments will 

be summarized and included in the 

submission for Office of Management 

and Budget approval. 

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. 

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 to read 

as follows: 

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; Sec. 748, Pub. 

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

L. 115–123. 

■ 2. In part 760, add subpart O to read 

as follows: 

Subpart O—2017 Wildfires and Hurricanes 

Indemnity Program 

Sec. 

760.1500 Applicability. 

760.1501 Administration. 

760.1502 Definitions. 

760.1503 Eligibility. 

760.1504 Miscellaneous provisions. 

760.1505 General provisions. 

760.1506 Availability of funds and timing 

of payments. 

760.1507 Payment limitation. 

760.1508 Qualifying disaster events. 

760.1509 Eligible and ineligible losses. 

760.1510 Application for 2017 WHIP 

payment. 

760.1511 Calculating payments for yieldbased crop losses. 

760.1512 Production losses; participant 

responsibility. 

760.1513 Determination of production. 

760.1514 Eligible acres. 

760.1515 Calculating payments for value 

loss crops. 

760.1516 Calculating payments for tree, 

bush, and vine losses. 

760.1517 Requirement to purchase crop 

insurance or NAP coverage. 

Subpart O—2017 Wildfires and 

Hurricanes Indemnity Program 

§ 760.1500 Applicability. 

This subpart specifies the terms and 

conditions for the 2017 Wildfires and 

Hurricanes Indemnity Program (2017 

WHIP). The 2017 WHIP provides 

disaster assistance for necessary 

expenses related to crop, tree, bush, and 

vine losses related to the consequences 

of wildfires and hurricanes that 

occurred in calendar year 2017. 


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§ 760.1501 Administration. 

(a) The 2017 WHIP is administered 

under the general supervision of the 

Administrator, Farm Service Agency 

(FSA), and the Deputy Administrator for 

Farm Programs, FSA. The 2017 WHIP 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, the Deputy 

Administrator, or a designee, from 

determining any question arising under 

2017 WHIP or from reversing or 

modifying any determination made by 

an FSA State or county committee. 

(e) The Deputy Administrator has the 

authority to permit State and county 

committees to waive or modify a nonstatutory deadline specified in this part. 

(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, yields, and 

payment factors established for 2017 

WHIP, are not subject to appeal in 

accordance with part 780 of this 

chapter. 

§ 760.1502 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. 

2017 WHIP factor means the factor in 

§ 760.1511, determined by the Deputy 

Administrator, that is based on the crop 

insurance or NAP coverage level elected 

by the 2017 WHIP participant for a crop 

for which a payment is being requested; 

or, as applicable, the factor that applies 

for a crop of a crop year where the 

participant had no insurance or NAP 

coverage. 

2017 WHIP yield means, for a unit: 

(1) For an insured crop, excluding 

crops located in Puerto Rico, the 

approved federal crop insurance APH, 

for the disaster year; 

(2) For a NAP covered crop, excluding 

crops located in Puerto Rico, the 

approved yield for the disaster year; 

(3) For a crop located in Puerto Rico 

or an uninsured crop, excluding citrus 

crops located in Florida, the county 

expected yield for the disaster year; and 

(4) For citrus crops located in Florida, 

the yield based on documentation 

submitted according to § 760.1511(c)(3), 

or if documentation is not submitted, 

the county expected yield. 

Actual production means the total 

quantity of the crop appraised, 

harvested, or assigned, as determined by 

the FSA State or county committee in 

accordance with instructions issued by 

the Deputy Administrator. 

Administrative county office means 

the FSA county office designated to 

make determinations, handle official 

records, and issue payments for the farm 

as specified in accordance part 718 of 

this title. 

Appraised production means the 

amount of production determined by 

FSA, or a company reinsured by the 

Federal Crop Insurance Corporation 

(FCIC), that was unharvested but was 

determined to reflect the crop’s yield 

potential at the time of appraisal. 

Approved yield means the amount of 

production per acre, computed as 

specified in FCIC’s Actual Production 

History (APH) Program in part 400, 

subpart G of this title or, for crops not 

included in part 400, subpart G of this 

title, the yield used to determine the 

guarantee. For crops covered under 

NAP, the approved yield is established 

according to part 1437 of this title. 

Average adjusted gross farm income 

means the average of the portion of 

adjusted gross income of the person or 

legal entity that is attributable to 

activities related to farming, ranching, 

or forestry for the 2013, 2014, and 2015 

tax years. The 2013, 2014, and 2015 tax 

years are the relevant years to calculate 

AGI for 2017 WHIP. 

Average adjusted gross income means 

the average of the adjusted gross income 

as defined under 26 U.S.C. 62 or 

comparable measure of the person or 

legal entity for the 2013, 2014, and 2015 

tax years. 

Bush means, a low, branching, woody 

plant, from which at maturity of the 

bush, an annual fruit or vegetable crop 

is produced for commercial market for 

human consumption, such as a 

blueberry bush. The definition does not 

cover nursery stock or plants that 

produce a bush after the normal crop is 

harvested. 

Buy-up NAP coverage means NAP 

coverage at a payment amount that is 

equal to an indemnity amount 

calculated for buy-up coverage 

computed under section 508(c) or (h) of 

the Federal Crop Insurance Act and 

equal to the amount that the buy-up 

coverage yield for the crop exceeds the 

actual yield for the crop. 

Catastrophic coverage has the 

meaning as defined in § 1437.3 of this 

title. 

Citrus crops and citrus trees include 

grapefruit, lemon, lime, Mandarin, 

Murcott, orange (all types), pummelo 

(pomelo), tangelo, tangerine, tangor. 

County disaster yield means the 

average yield per acre calculated for a 

county or part of a county for the 

current year based on disaster events, 

and is intended to reflect the amount of 

production that a participant would 

have been expected to make based on 

the eligible disaster conditions in the 

county or area, as determined by the 

FSA county committee in accordance 

with instructions issued by the Deputy 

Administrator. 

County expected yield has the 

meaning assigned in § 1437.102(b) 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, trees, bushes, 

and vines, the crop year as defined 

according to the applicable crop 

insurance policy; 

(2) For NAP eligible crops, the crop 

year as defined in § 1437.3 of this title; 

(3) For uninsurable trees, bushes, and 

vines, the 2017 crop year. 

Damage factor means a percentage of 

the value lost when a tree, bush, or vine 

is damaged and requires rehabilitation 

but is not completely destroyed, as 

determined by the Deputy 

Administrator. 

Eligible crop means a crop for which 

coverage was available either from FCIC 

under part 400 of this title, or through 


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NAP under § 1437.4 of this title, that 

was affected by a qualifying disaster 

event. 

Eligible disaster event means a 

disaster event that was: 

(1) For insured crops, an eligible 

cause of loss under the applicable crop 

insurance policy for the crop year; 

(2) For NAP covered crops and 

uninsured crops, an eligible cause of 

loss as specified in § 1437.10 of this 

title. 

End use means the purpose for which 

the harvested crop is used, such as 

grain, hay, or seed. 

Expected production means, for an 

agricultural unit, the historic yield 

multiplied by the number of planted or 

prevented planted acres of the crop for 

the unit. 

FCIC means the Federal Crop 

Insurance Corporation, a wholly owned 

Government Corporation of USDA, 

administered by RMA. 

Final planting date means the latest 

date, established by RMA for insurable 

crops, by which the crop must initially 

be planted in order to be insured for the 

full production guarantee or amount of 

insurance per acre. For NAP eligible 

crops, the final planting date is as 

defined in § 1437.3 of this title. 

Growth stage means a classification 

system for trees, bushes, and vines 

based on a combination of age and 

production capability, determined by: 

(1) The applicable insurance policy 

for insurable trees, bushes, and vines; or 

(2) The Deputy Administrator for 

trees, bushes, and vines for which RMA 

does not offer an insurance policy. 

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 one mature crop from 

the field during the crop year; 

(4) For mechanically-harvested NAP 

eligible crops, that the crop has been 

removed from the field and placed in a 

truck or other conveyance, except hay is 

considered harvested when in the bale, 

whether removed from the field or not. 

Grazed land will not be considered 

harvested for the purpose of 

determining an unharvested or 

prevented planting payment factor. 

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). 

Multi-use crop means a crop intended 

for more than one end use during the 

calendar year such as grass harvested for 

seed, hay, and grazing. 

Multiple cropping means the planting 

of two or more different crops on the 

same acreage for harvest within the 

same crop year. 

Multiple planting means the planting 

for harvest of the same crop in more 

than one planting period in a crop year 

on different acreage. 

NASS means the National 

Agricultural Statistics Service. 

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 covered crop means a crop for 

which the producer on a farm obtained 

NAP coverage. 

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 the 

producer must pay to obtain NAP 

coverage. 

Planted acreage means land in which 

seed, plants, or trees have been placed, 

appropriate for the crop and planting 

method, at a correct depth, into a 

seedbed that has been properly prepared 

for the planting method and production 

practice normal to the USDA plant 

hardiness zone as determined by the 

county committee. 

Prevented planting means the 

inability to plant an eligible crop with 

proper equipment during the planting 

period as a result of an eligible cause of 

loss, as determined by FSA. 

Price means price per unit of the crop 

or commodity and will be: 

(1) For an insured crop under a crop 

insurance policy that establishes a price 

to determine liability, that established 

price; 

(2) For an insured crop under a crop 

insurance policy that does not establish 

a price to determine crop insurance 

liability, the county average price, as 

determined by FSA; 

(3) For a NAP covered crop or 

uninsured crop, the average market 

price determined in § 1437.12 of this 

title; or 

(4) For a tree, bush, or vine, the price 

determined by the Deputy 

Administrator based on the species of 

tree, bush, or vine and its growth stage. 

Production means quantity of the crop 

or commodity produced expressed in a 

specific unit of measure including, but 

not limited to, bushels or pounds. 

Production under this subpart includes 

all harvested production, unharvested 

appraised production, and assigned 

production for the total planted acreage 

of the crop on the unit. 

Qualifying disaster event means a 

hurricane or wildfire or related 

condition that occurred in the 2017 

calendar year. 

Related condition means damaging 

weather or an adverse natural 

occurrence that occurred as a direct 

result of a hurricane or wildfire, as 

determined by FSA, such as excessive 

rain, high winds, flooding, mudslides, 

and heavy smoke, as determined by the 

Deputy Administrator. 

Repeat crop means, with respect to 

production, a commodity that is planted 

or prevented from being planted in more 

than one planting period on the same 

acreage in the same crop year. 

RMA means the Risk Management 

Agency. 

Salvage value means the dollar 

amount or equivalent for the quantity of 

the commodity that cannot be marketed 

or sold in any recognized market for the 

crop. 

Secondary use means the harvesting 

of a crop for a use other than the 

intended use. 

Secondary use value means the value 

determined by multiplying the quantity 

of secondary use times the FSAestablished price for that use. 

Tree means a tall, woody plant having 

comparatively great height, and a single 

trunk from which an annual crop is 

produced for commercial market for 

human consumption, such as a maple 

tree for syrup, or papaya or orchard tree 

for fruit. It includes immature trees that 

are intended for commercial purposes. 

Nursery stock, banana and plantain 

plants, and trees used for pulp or timber 

are not considered eligible trees under 

this subpart. 

Tropical crops is defined in 

§ 1437.501 of this title. 

Tropical region is defined in 

§ 1437.502 of this title. 

Unharvested payment factor means a 

percentage established by FSA for a 

crop and applied in a payment formula 

to reduce the payment for reduced 

expenses incurred because commercial 

harvest was not performed. 

Uninsured means a crop that was not 

covered by crop insurance or NAP for 

the crop year for which a 2017 WHIP 

payment is being requested. 

Unit means, unless otherwise 

determined by the Deputy 

Administrator, basic unit as defined in 

part 457 or § 1437.9 of this title, for 

ornamental nursery production, 

includes all eligible plant species and 

sizes. 

Unit of measure means: 


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(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. 

USDA Plant Hardiness Zone means 

the 11 regions or planting zones as 

defined by a 10 degree Fahrenheit 

difference in the average annual 

minimum temperature. 

Value loss crop has the meaning 

specified in subpart D, of part 1437 of 

this title. 

Vine means a perennial plant grown 

under normal conditions from which an 

annual fruit crop is produced for 

commercial market for human 

consumption, such as grape, kiwi, or 

passion fruit, and that has a flexible 

stem supported by climbing, twining, or 

creeping along a surface. Nursery stock, 

perennials that are normally propagated 

as annuals such as tomato plants, 

biennials such as strawberry plants, and 

annuals such as pumpkin, squash, 

cucumber, watermelon, and other melon 

plants, are excluded from the term vine 

in this subpart. 

Yield means unit of production, 

measured in bushels, pounds, or other 

unit of measure, per area of 

consideration, usually measured in 

acres. 

§ 760.1503 Eligibility. 

(a) Participants will be eligible to 

receive a 2017 WHIP payment under 

this subpart only if they incurred a loss 

to an eligible crop, tree, bush, or vine 

due to a qualifying disaster event, as 

further specified in this subpart. 

(b) To be an eligible participant under 

this subpart a producer who is 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;’’ 

(3) Partnership consisting of citizens 

of the United States or resident aliens; 

or 

(4) Corporation, limited liability 

company, or other organizational 

structure organized under State law. 

(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 title. 

Similarly, if any person or legal entity 

who would otherwise 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 for payment. Eligibility of 

such participant will be determined, as 

it is for other participants, based upon 

ownership share and risk in producing 

the crop. 

(d) Growers growing eligible crops 

under contract for crop owners are not 

eligible 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 

grower ineligible for payments under 

this subpart. 

(e) A person or legal entity is not 

eligible to receive disaster assistance 

under this subpart if it is determined by 

FSA 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. 

(g) A person 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. 

(h) The provisions of § 718.11 of this 

title, providing for ineligibility for 

payments for offenses involving 

controlled substances, apply. 

(i) 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 2017 

WHIP benefits, and must not otherwise 

be precluded from receiving payments 

under parts 12, 400, 1400, or 1437 of 

this title or any law. 

§ 760.1504 Miscellaneous provisions. 

(a) All persons with a financial 

interest in the legal entity receiving 

payments under this subpart are jointly 

and severally liable for any refund, 

including related charges, which is 

determined to be due to FSA for any 

reason. 

(b) In the event that any application 

for payment under this subpart resulted 

from 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 792 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 792 

of this chapter. 

(e) The regulations in parts 11 and 

780 of this title apply to determinations 

under this subpart. 

§ 760.1505 General provisions. 

(a) For loss calculations, the 

participant’s unit structure will be: 

(1) For an insured crop, the 

participant’s existing unit structure 

established in accordance with part 457 

of this title; 

(2) For a crop with NAP coverage, the 

participant’s existing unit structure 

established in accordance with part 

1437 of this title; 

(3) For an uninsured crop, the 

participant’s unit structure established 

in accordance with part 1437 of this 

title. 

(b) FSA county committees will make 

the necessary adjustments to assign 

production or reduce the 2017 WHIP 

yield when the county committee 

determines: 

(1) An acceptable appraisal or record 

of harvested production does not exist; 

(2) The loss is due to an ineligible 

cause of loss; 

(3) The loss is due to practices, soil 

type, climate, or other environmental 

factors that cause lower yields than 

those upon which the historic yield is 

based; 

(4) The participant has a contract 

providing a guaranteed payment for all 

or a portion of the crop; or 

(5) The crop was planted beyond the 

normal planting period for the crop. 

(c) Assignment of production or 

reduction in yield will apply for 

practices that result in lower yields than 

those for which the historic yield is 

based. 

(d) Eligibility and payments for 2017 

WHIP will be determined based on a 

unit’s: 

(1) Physical location county for 

insured crops; and 

(2) Administrative county for NAP 

covered crops and uninsured crops. 


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(e) FSA may separate or combine 

types and varieties as a crop for 2017 

WHIP eligibility and payment purposes 

when specific credible information as 

determined by FSA shows the crop of a 

specific type or variety has a 

significantly different or similar value, 

respectively, when compared to other 

types or varieties, as determined by the 

Deputy Administrator. 

(f) Unless otherwise specified, all the 

eligibility provisions of part 1437 of this 

title apply to value loss crops and 

tropical crops under this subpart. 

(g) The quantity or value of a crop 

will not be reduced for any quality 

consideration unless a zero value is 

established based on a total loss of 

quality. 

(h) FSA will use the best data 

available to calculate a 2017 WHIP 

payment at the time 2017 WHIP 

payments are calculated. If additional 

data or information is provided or 

becomes available after a 2017 WHIP 

payment is issued, FSA will recalculate 

the payment amount and the producer 

must return any overpayment amount to 

FSA. In all cases, 2017 WHIP payments 

can only issue based on the payment 

formula for losses that affirmatively 

occurred. 

§ 760.1506 Availability of funds and timing 

of payments. 

(a) An initial payment will be issued 

for 50 percent of each 2017 WHIP 

payment calculated according to this 

subpart, as determined by the Secretary. 

The remainder of the calculated 2017 

WHIP payment will be paid to a 

participant only after the application 

period has ended and any crop 

insurance indemnity or NAP payment 

the participant is entitled to receive for 

the crop has been calculated and 

reported to FSA, and then only if there 

are funds available for such payment as 

discussed in this subpart. 

(b) In the event that, within the limits 

of the funding made available by the 

Secretary, approval of eligible 

applications would result in payments 

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. FSA 

will prorate the payments in such 

manner as it determines equitable. 

(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. 

§ 760.1507 Payment limitation. 

(a) For any 2017 WHIP payments for 

the 2017 or 2018 crop year combined, a 

person or legal entity, other than a joint 

venture or general partnership, is 

eligible to receive, directly or indirectly, 

2017 WHIP payments of not more than: 

(1) $125,000, if less than 75 percent of 

the person or legal entity’s average 

adjusted gross income is average 

adjusted gross farm income; or 

(2) $900,000, if not less than 75 

percent of the average adjusted gross 

income of the person or legal entity is 

average adjusted gross farm income. 

(b) For 2017 WHIP eligibility, a 

person or legal entity’s average adjusted 

gross income and average adjusted gross 

farm income are determined based on 

the 2013, 2014, and 2015 tax years. 

(c) To be eligible for more than 

$125,000 in 2017 WHIP payments, a 

person or legal entity must submit FSA– 

892 and provide a certification in the 

manner prescribed by FSA from a 

certified public accountant or attorney 

that at least 75 percent of the person or 

legal entity’s average adjusted gross 

income was average adjusted gross farm 

income. Persons or legal entities who 

fail to provide FSA–892 and the 

required certification may not receive a 

2017 WHIP payment, directly or 

indirectly, of more than $125,000. 

(d) The direct attribution provisions 

in part 1400 of this chapter apply to 

2017 WHIP for both payment limitation 

as well as in determining average AGI 

as defined and used in this rule. 

§ 760.1508 Qualifying disaster events. 

(a) A producer will be eligible for 

2017 WHIP payments for a crop, tree, 

bush, or vine loss only if the producer 

suffered a loss to the crop, tree, bush, or 

vine on the unit due to a qualifying 

disaster event. 

(b) For a loss due to hurricane and 

conditions related to hurricanes, the 

crop, tree, bush, or vine loss 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 hurricane 

occurring in the 2017 calendar year; or 

(2) Secretarial Disaster Designation for 

a hurricane occurring in the 2017 

calendar year. 

(c) A producer with crop, tree, bush, 

or vine losses on acreage not located in 

a physical location county that was 

eligible under paragraph (b)(1) of this 

section will be eligible for 2017 WHIP 

for losses due to hurricane and related 

conditions only if the producer provides 

supporting documentation that is 

acceptable to FSA from which the FSA 

county committee determines that the 

loss of the crop, tree, bush, or vine 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. 

(d) For a loss due to wildfires and 

conditions related to wildfire in the 

2017 calendar year, all counties where 

wildfires occurred, as determined by 

FSA county committees, are eligible for 

2017 WHIP; a Presidential Emergency 

Disaster Declaration or Secretarial 

Disaster Designation for wildfire is not 

required. The loss of the crop, tree, 

bush, or vine must be reasonably related 

to wildfire and conditions related to 

wildfire, as specified in this subpart’s 

definition of qualifying disaster event. 

§ 760.1509 Eligible and ineligible losses. 

(a) Except as provided in paragraphs 

(b) through (e) of this section, to be 

eligible for payments under this subpart 

the unit must have suffered a loss of the 

crop, tree, bush, or vine, or prevented 

planting of a crop, due to a qualifying 

disaster event. 

(b) A loss will not be eligible for 2017 

WHIP 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 cause of loss was due to 

failure of the participant to re-seed or 

replant to the same crop in a county 

where it is customary to re-seed or 

replant after a loss before the final 

planting date; 

(3) The cause of loss was due to 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; 

(4) The cause of loss was due to 

conditions or events occurring outside 

of the applicable growing season for the 

crop, tree, bush, or vine; or 

(5) The cause of loss was due to 

failure of a power supply or brownout. 

(c) The following types of loss, 

regardless of whether they were the 

result of an eligible disaster event, are 

not eligible losses: 

(1) Losses to crops intended for 

grazing; 

(2) Losses to crops for which FCIC 

coverage or NAP coverage is 

unavailable; 

(3) Losses to volunteer crops; 

(4) Losses to crops not intended for 

harvest; 

(5) Losses of by-products resulting 

from processing or harvesting a crop, 


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such as, but not limited to, cotton seed, 

peanut shells, wheat or oat straw, or 

corn stalks or stovers; 

(6) Losses to home gardens; or 

(7) Losses of first year seeding for 

forage production, or immature fruit 

crops. 

(d) The following losses of ornamental 

nursery stock are not eligible losses: 

(1) Losses caused by the inability to 

market nursery stock as a result of lack 

of compliance with State and local 

commercial ordinances and laws, 

quarantine, boycott, or refusal of a buyer 

to accept production; 

(2) Losses affecting crops where 

weeds and other forms of undergrowth 

in the vicinity of nursery stock have not 

been controlled; or 

(3) Losses caused by the collapse or 

failure of buildings or structures. 

(e) The following losses for honey, as 

a crop, where the honey production by 

colonies or bees was diminished, are not 

eligible losses: 

(1) Losses caused by the 

unavailability of equipment or the 

collapse or failure of equipment or 

apparatus used in the honey operation; 

(2) Losses caused by improper storage 

of honey; 

(3) Losses caused by bee feeding; 

(4) Losses caused by the application 

of chemicals; 

(5) Losses caused by theft; 

(6) Losses caused by the movement of 

bees by or for the participant; 

(7) Losses caused by disease or pest 

infestation of the colonies, unless 

approved by the Deputy Administrator; 

(8) Losses of income from pollinators; 

or 

(9) Losses of equipment or facilities. 

(f) Qualifying losses for trees, bushes, 

and vines will not include losses: 

(1) That could have been prevented 

through reasonable and available 

measures; and 

(2) To trees, bushes, or vines that were 

abandoned or were not in use or 

intended for commercial operation at 

the time of the loss. 

§ 760.1510 Application for 2017 WHIP 

payment. 

(a) The 2017 WHIP application must 

be submitted on a completed form FSA– 

890, Wildfires and Hurricanes 

Indemnity Program Application, to the 

FSA county office serving as the farm’s 

administrative county office by the close 

of business on a date that will be 

announced by the Deputy 

Administrator. 

(b) Once signed by a producer, the 

application for payment is considered to 

contain information and certifications of 

and pertaining to the producer 

regardless of who entered the 

information on the application. 

(c) The producer applying for 2017 

WHIP payment 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 Department of Agriculture to verify 

any information provided will result in 

the participant’s forfeiting eligibility for 

2017 WHIP. 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 

provision of this subpart. Furnishing 

required information is voluntary; 

however, without it FSA is under no 

obligation to act on the application or 

approve payment. Providing a false 

certification will result in ineligibility 

and can also be punishable by 

imprisonment, fines, and other 

penalties. 

(d) The 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 participant 

has submitted all of following 

completed forms and information: 

(1) FSA–891, Crop Insurance and/or 

NAP Coverage Agreement; 

(2) Report of all acreage for the crop 

for the unit for which 2017 WHIP 

payments are requested, on FSA–578, 

Report of Acreage, or in another format 

acceptable to FSA; 

(3) AD–1026, Highly Erodible Land 

Conservation (HELC) and Wetland 

Conservation Certification; and 

(4) FSA–892, Request for an 

Exception to the WHIP Payment 

Limitation of $125,000, if the applicant 

is requesting 2017 WHIP payments in 

excess of the $125,000 payment 

limitation; and 

(5) FSA–893, 2018 Citrus Actual 

Production History and Approved Yield 

Record, Florida Only, for participants 

applying for payment for a citrus crop 

located in Florida. 

(e) Application approval and payment 

by FSA does not relieve a participant 

from having to submit any form 

required, but not filed, according to 

paragraph (d) of this section. 

§ 760.1511 Calculating payments for yieldbased crop losses. 

(a) Payments made under this subpart 

to a participant for a loss to yield-based 

crops, including losses due to prevented 

planting, are determined for a unit by: 

(1) Multiplying the eligible acres by 

the 2017 WHIP yield in paragraph (c) of 

this section by the price; 

(2) Multiplying the result from 

paragraph (a)(1) of this section by the 

applicable 2017 WHIP factor in 

paragraph (b) of this section; 

(3) Multiplying the applicable 

production in paragraph (d) of this 

section by the price; 

(4) Subtracting the result from 

paragraph (a)(3) of this section from the 

result of paragraph (a)(2) of this section; 

(5) Multiplying the result from 

paragraph (a)(4) of this section by the 

participant’s share in paragraph (e) of 

this section; 

(6) Multiplying the result from 

paragraph (a)(5) of this section by the 

applicable payment factor in paragraph 

(f) of this section; 

(7) Subtracting the amount of the 

gross insurance indemnity or NAP 

payment from the result from paragraph 

(a)(6) of this section; and 

(8) Subtracting the secondary use or 

salvage value of the crop from the result 

from paragraph (a)(7) of this section. 

(b) If the NAP or crop insurance 

coverage is at the coverage level listed 

in the first column, then the 2017 WHIP 

factor is listed in the second column: 

Coverage Level 

2017 WHIP 

factor 

(percent) 

(1) No crop insurance or No 

NAP coverage ....................... 65 

(2) Catastrophic coverage ........ 70 

(3) More than catastrophic coverage but less than 55 percent ....................................... 72.5 

(4) At least 55 percent but less 

than 60 percent ..................... 75 

(5) At least 60 percent but less 

than 65 percent ..................... 77.5 

(6) At least 65 percent but less 

than 70 percent ..................... 80 

(7) At least 70 percent but less 

than 75 percent ..................... 85 

(8) At least 75 percent but less 

than 80 percent ..................... 90 

(9) At least 80 percent .............. 95 

(c) The 2017 WHIP yield is: 

(1) The producer’s APH for insured 

crops under a crop insurance policy that 

has an associated yield and for NAP 

covered crops, excluding all crops 

located in Puerto Rico; 

(2) The county expected yield for 

crops located in Puerto Rico and 

uninsured crops, excluding citrus crops 

located in Florida; or 

(3) For uninsured citrus crops located 

in Florida: 

(i) Determined based on information 

provided on FSA–893 and supported by 


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evidence that meets the requirements of 

§ 760.1513(c), or 

(ii) If FSA–893 and supporting 

documentation are not submitted, the 

county expected yield. 

(d) The production used to calculate 

a 2017 WHIP payment will be 

determined as specified in § 760.1513. 

(e) The eligible participant’s share of 

a 2017 WHIP payment is based on the 

participant’s ownership entitlement 

share of the crop or crop proceeds, or, 

if no crop was produced, the share of 

the crop the participant would have 

received if the crop had been produced. 

If the participant has no ownership 

share of the crop, the participant is 

ineligible for 2017 WHIP. 

(f) Payment factors will be used to 

calculate payments for crops produced 

with significant and variable production 

and harvesting expenses that are not 

incurred because the crop acreage was 

prevented planted, or planted but not 

harvested, as determined by FSA. The 

use of payment factors is based on 

whether the crop acreage was 

unharvested or prevented planted, not 

whether a participant actually incurs or 

does not incur expenses. Payment 

factors are generally applicable to all 

similarly situated participants and are 

not established in response to 

individual participants. Accordingly 

established payment factors are not 

appealable under parts 11 and 780 of 

this title. A crop that is intended for 

mechanical harvest, but subsequently 

grazed and not mechanically harvested, 

will have an unharvested payment 

factor applied. 

(g) Production from all end uses of a 

multi-use crop will be calculated 

separately and summarized together. 

§ 760.1512 Production losses; participant 

responsibility. 

(a) For any record submitted along 

with the certification of production, the 

record must be either a verifiable or 

reliable record that substantiates the 

certification to the satisfaction of the 

FSA county committee. If the eligible 

crop was sold or otherwise disposed of 

through commercial channels, a record 

of that disposition must be provided to 

FSA with the certification. 

(1) Acceptable production records 

include: 

(i) RMA or NAP records, if accurate 

and complete; 

(ii) Commercial receipts; 

(iii) Settlement sheets; 

(iv) Warehouse ledger sheets or load 

summaries; or 

(v) Appraisal information from a loss 

adjuster acceptable to FSA. 

(2) If the eligible crop was farmstored, sold, fed to livestock, or 

disposed of by means other than 

verifiable commercial channels, 

acceptable records for these purposes 

include: 

(i) Truck scale tickets; 

(ii) Appraisal information from a loss 

adjuster acceptable to FSA; 

(iii) Contemporaneous reliable diaries; 

or 

(iv) Other documentary evidence, 

such as contemporaneous reliable 

measurements. 

(3) Determinations of reliability with 

respect to this paragraph will take into 

account, as appropriate, the ability for 

FSA to review and verify or compare the 

evidence against the similarity of the 

evidence or reports or data received by 

FSA for the crop or similar crops. Other 

factors deemed relevant may also be 

taken into account. 

(b) If RMA or NAP records are not 

available, or if the FSA county 

committee determines the RMA or NAP 

records as reported by the insured or 

covered participant appear to be 

questionable or incomplete, or if the 

FSA county committee makes inquiry, 

the participant is responsible for: 

(1) Retaining and providing, at time of 

application and whenever required by 

FSA, the best available verifiable or 

reliable or other production records for 

the crop; 

(2) Summarizing all the production 

evidence; 

(3) Accounting for the total amount of 

unit production for the crop, whether or 

not records reflect this production; 

(4) Providing the information in a 

manner that can be easily understood by 

the FSA county committee; and 

(5) Providing supporting 

documentation if the FSA county 

committee has reason to question the 

disaster event or that all production has 

been taken into account. 

(c) FSA may verify the production 

evidence submitted with records on file 

at the warehouse, gin, or other entity 

that received or may have received the 

reported production. 

(d) Participants must provide all 

records for any production of a crop that 

is grown with an arrangement, 

agreement, or contract for guaranteed 

payment. 

§ 760.1513 Determination of production. 

(a) The harvested production of 

eligible crop acreage harvested more 

than once in a crop year includes the 

total harvested production from all the 

harvests in the crop year. 

(b) If a crop is appraised and 

subsequently harvested as the intended 

use, the actual harvested production 

must be taken into account to determine 

payments. FSA will analyze and 

determine whether a participant’s 

evidence of actual production 

represents all that could or would have 

been harvested. 

(c) For all crops eligible for loan 

deficiency payments or marketing 

assistance loans (see parts 1421 and 

1434 of this title) with an intended use 

of grain but harvested as silage, ensilage, 

cabbage, hay, cracked, rolled, or 

crimped, production will be converted 

to a whole grain equivalent based on 

conversion factors as previously 

established by FSA. 

(d) If a participant does not receive 

compensation based upon the quantity 

of the commodity delivered to a 

purchaser, but has an agreement or 

contract for guaranteed payment for 

production, the determination of the 

production will be the greater of the 

actual production or the guaranteed 

payment converted to production as 

determined by FSA. 

(e) Production that is commingled 

between crop years, units, ineligible and 

eligible acres, or different practices 

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, unit, 

type of acreage, or practice, respectively. 

Commingled production may be 

attributed to the applicable unit, if the 

participant made the unit production of 

a commodity a matter of record before 

commingling and does any of the 

following, as applicable: 

(1) Provides copies of verifiable 

documents showing that production of 

the commodity was purchased, 

acquired, or otherwise obtained from 

beyond the unit; 

(2) Had the production measured in a 

manner acceptable to the FSA county 

committee; or 

(3) Had the current year’s production 

appraised in a manner acceptable to the 

FSA county committee. 

(f) The FSA county committee will 

assign production for the unit when the 

FSA county committee determines that: 

(1) The participant has failed to 

provide adequate and acceptable 

production records; 

(2) The loss to the crop is because of 

a disaster condition not covered by this 

subpart, or circumstances other than 

natural disaster, and there has not 

otherwise been an accounting of this 

ineligible cause of loss; 

(3) The participant carries out a 

practice, such as multiple cropping, that 

generally results in lower yields than 

the established historic yields; 

(5) A crop was late-planted; 

(6) Unharvested acreage was not 

timely appraised; or 


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33808 Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / Rules and Regulations 

(7) Other appropriate causes exist for 

such assignment as determined by the 

Deputy Administrator. 

(g) The FSA county committee will 

establish a county disaster yield that 

reflects the amount of production 

producers would have produced 

considering the eligible disaster events 

in the county or area for the same crop. 

The county disaster yield for the county 

or area will be expressed as either a 

percent of loss or yield per acre. The 

county disaster yield will apply when: 

(1) Unharvested acreage has not been 

appraised by FSA or a company 

reinsured by FCIC; or 

(2) Acceptable production records for 

harvested acres are not available from 

any source. 

(h) In no case will the production 

amount of any applicant be less than the 

producer’s certified loss. 

§ 760.1514 Eligible acres. 

(a) Eligible acreage will be calculated 

using the lesser of the reported or 

determined acres shown to have been 

planted or prevented from being planted 

to a crop. 

(b) Initial crop acreage will be the 

payment acreage for 2017 WHIP, unless 

the provisions for subsequent crops in 

this section are met. Subsequently 

planted or prevented planted acre 

acreage is considered acreage for 2017 

WHIP only if the provisions of 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. 

(c) In cases where there is double 

cropped acreage, each crop may be 

included in the acreage for 2017 WHIP 

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. 

(d) Except for insured crops, 

participants with double cropped 

acreage not meeting the criteria in 

paragraph (c) of this section may have 

such acreage included in the acreage for 

2017 WHIP on more than one crop only 

if the participant submits verifiable 

records establishing a history of carrying 

out a successful double cropping 

practice on the specific crops for which 

payment is requested. 

(e) Participants having multiple 

plantings may receive payments for 

each planting included only if the 

planting meets the requirements of part 

1437 of this title and all other 

provisions of this subpart are satisfied. 

(f) Losses due to prevented planting 

are eligible for 2017 WHIP only if the 

loss was due to a qualifying disaster 

event. Provisions of parts 718 and 1437 

of this title specifying what is 

considered prevented planting and how 

it must be documented and reported 

will apply to 2017 WHIP. Crops located 

in tropical regions are not eligible for 

prevented planting. 

(g) Subject to the provisions of this 

subpart, the FSA county committee will: 

(1) Use the most accurate data 

available when determining planted and 

prevented planted acres; and 

(2) Disregard acreage of a crop 

produced on land that is not eligible for 

crop insurance or NAP. 

(h) If a farm has a crop that has both 

FSA and RMA acreage for insured 

crops, eligible acres for 2017 WHIP will 

be based on the lesser of RMA or FSA 

acres. 

§ 760.1515 Calculating payments for value 

loss crops. 

(a) Payments made under this subpart 

to a participant for a loss on a unit with 

respect to value loss crops are 

determined by: 

(1) Multiplying the field market value 

of the crop immediately before the 

qualifying disaster event by the 2017 

WHIP factor specified in § 760.1511(b); 

(2) Subtracting the sum of the field 

market value of the crop immediately 

after the qualifying disaster event and 

the value of the crop lost due to 

ineligible causes of loss from the result 

from paragraph (a)(1) of this section; 

(3) Multiplying the result from 

paragraph (a)(2) of this section by the 

participant’s share; 

(4) Multiplying the result from 

paragraph (a)(3) of this section by the 

applicable payment factor; 

(5) Subtracting the gross insurance 

indemnity or NAP payment from the 

result from paragraph (a)(4) of this 

section; and 

(7) Subtracting the secondary use or 

salvage value of the crop from the result 

from paragraph (a)(5) of this section. 

(b) In the case of an insurable value 

loss crop for which crop insurance 

provides for an adjustment in the 

guarantee, liability, or indemnity, such 

as in the case of inventory exceeding 

peak inventory value, the adjustment 

will be used in determining the 2017 

WHIP payment for the crop. 

(c) In the case of a NAP eligible value 

loss crop for which NAP provides for an 

adjustment in the level of assistance, 

such as in the case of unharvested field 

grown inventory, the adjustment will be 

used in determining the 2017 WHIP 

payment for the crop. 

§ 760.1516 Calculating payments for tree, 

bush, and vine losses. 

(a) Payments will be calculated 

separately based on the growth stage of 

the trees, bushes, or vines, as 

determined by the Deputy 

Administrator. 

(b) Payments made under this subpart 

to a participant for a loss on a unit with 

respect to tree, bush, and vine losses are 

determined by: 

(1) Multiplying the expected value 

(see paragraph (c) of this section) of the 

trees, bushes, or vines immediately 

before the qualifying disaster event by 

the 2017 WHIP factor specified in 

§ 760.1511(b); 

(2) Subtracting the actual value (see 

paragraph (d) of this section) of the 

trees, bushes, or vines immediately after 

the qualifying disaster event from the 

result of paragraph (b)(1) of this section; 

(3) Multiplying the result of paragraph 

(b)(2) of this section by the participant’s 

share; 

(4) Subtracting the amount of any 

insurance indemnity received from the 

result of paragraph (b)(3) of this section; 

and 

(5) Subtracting the value of any 

secondary use or salvage value from the 

result of paragraph (b)(4) of this section. 

(c) Expected value is determined by 

multiplying the total number of trees, 

bushes, or vines that were damaged or 

destroyed by a qualifying disaster event 

by the price. 

(d) Actual value is determined by: 

(1) Multiplying the number of trees, 

bushes, or vines damaged by a 

qualifying disaster event by the damage 

factor; 

(2) Adding the result of paragraph 

(d)(1) of this section and the number of 

trees, bushes, or vines destroyed by a 

qualifying disaster event; 

(3) Multiplying the result of paragraph 

(d)(2) of this section by the price; and 

(4) Subtracting the result of paragraph 

(d)(3) of this section from the expected 

value from paragraph (c) of this section. 

(e) The FSA county committee will 

adjust the number of damaged and 

destroyed trees, bushes, and vines, if it 

determines that the number of damaged 

or destroyed trees, bushes, or vines 

certified by the participant is inaccurate. 

(f) Citrus trees located in Florida are 

ineligible for payment under this 

section. 

§ 760.1517 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 2017 WHIP ends, 

but no later than the 2021 crop year, a 

participant who receives 2017 WHIP 

payments for a crop loss in a county 

must obtain: 

(1) For an insurable crop, crop 

insurance with at least a 60 percent 


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Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / Rules and Regulations 33809 

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

coverage level for that crop in that 

county; or 

(2) For a NAP eligible crop: 

(i) NAP coverage with a coverage level 

of 60 percent, if available for the 

applicable crop year, or NAP 

catastrophic coverage if NAP coverage is 

not offered at a 60 percent coverage 

level for that crop year. 

(ii) 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)(i) 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 but will be 

eligible for the WHIP payment. 

(b) For the first 2 consecutive 

insurance years for which crop 

insurance is available after the 

enrollment period for 2017 WHIP ends, 

but no later than the 2021 crop year, any 

participant who receives 2017 WHIP 

payments for a tree, bush, or vine loss 

must purchase a plan of insurance for 

the tree, bush, or vine with at least a 60 

percent coverage level. 

(c) If a producer fails to obtain crop 

insurance or NAP coverage as required 

in paragraphs (a) and (b) of this section, 

the producer must reimburse FSA for 

the full amount of 2017 WHIP payment 

plus interest that the producer received 

for that crop, tree, bush, or vine loss. A 

producer will only be considered to 

have obtained NAP coverage for the 

purposes of this section if the 

participant applied and payed the 

requisite NAP service fee and paid any 

applicable premium by the applicable 

deadline and completed all program 

requirements, including filing an 

acreage report as may be required under 

such coverage agreement. 

Richard Fordyce, 

Administrator, Farm Service Agency. 

[FR Doc. 2018–15346 Filed 7–16–18; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2017–1102; Product 

Identifier 2017–NM–078–AD; Amendment 

39–19320; AD 2018–13–08] 

RIN 2120–AA64 

Airworthiness Directives; Airbus 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: We are superseding 

Airworthiness Directive (AD) 2016–01– 

11, which applied to certain Airbus 

Model A320–211, –212, and –231 

airplanes. AD 2016–01–11 required 

repetitive inspections for cracking of the 

radius of the front spar vertical stringers 

and the horizontal floor beam on frame 

(FR) 36, repetitive inspections for 

cracking of the fastener holes of the 

front spar vertical stringers on FR 36, 

and repair if necessary. This AD adds 

new thresholds and intervals for the 

repetitive inspections; requires, for 

certain airplanes, a potential 

terminating action modification of the 

center wing box area; and expands the 

applicability. This AD was prompted by 

a report that, during a center fuselage 

certification full-scale fatigue test, 

cracks were found on the front spar 

vertical stringer at a certain frame. This 

AD was also prompted by a 

determination that, during further 

investigations of the frame as part of the 

widespread fatigue damage (WFD) 

campaign, certain inspection 

compliance times have to be revised and 

new inspections and a new potential 

terminating action modification have to 

be introduced. We are issuing this AD 

to address the unsafe condition on these 

products. 

DATES: This AD is effective August 22, 

2018. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in this AD 

as of August 22, 2018. 

ADDRESSES: For service information 

identified in this final rule, contact 

Airbus, Airworthiness Office–EIAS, 

Rond-Point Emile Dewoitine No: 2, 

31700 Blagnac Cedex, France; telephone 

+33 5 61 93 36 96; fax +33 5 61 93 44 

51; email account.airworth-eas@

airbus.com; internet http://

www.airbus.com. You may view this 

referenced service information at the 

FAA, Transport Standards Branch, 2200 

South 216th St., Des Moines, WA. For 

information on the availability of this 

material at the FAA, call 206–231–3195. 

It is also available on the internet at 

http://www.regulations.gov by searching 

for and locating Docket No. FAA–2017– 

1102. 

Examining the AD Docket 

You may examine the AD docket on 

the internet at http://

www.regulations.gov by searching for 

and locating Docket No. FAA–2017– 

1102; or in person at the Docket 

Management Facility between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The AD docket 

contains this AD, the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (telephone 800–647–5527) 

is Docket Management Facility, U.S. 

Department of Transportation, Docket 

Operations, M–30, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue SE, Washington, DC 

20590. 

FOR FURTHER INFORMATION CONTACT: 

Sanjay Ralhan, Aerospace Engineer, 

International Section, Transport 

Standards Branch, FAA, 2200 South 

216th St., Des Moines, WA 98198; 

telephone and fax 206–231–3223. 

SUPPLEMENTARY INFORMATION: 

Discussion 

We issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 to supersede AD 2016–01–11, 

Amendment 39–18370 (81 FR 3316, 

January 21, 2016) (‘‘AD 2016–01–11’’). 

AD 2016–01–11 applied to certain 

Airbus Model A320–211, –212, and 

–231 airplanes. The NPRM published in 

the Federal Register on December 13, 

2017 (82 FR 58566). The NPRM was 

prompted by a report that, during a 

center fuselage certification full-scale 

fatigue test, cracks were found on the 

front spar vertical stringer at a certain 

frame. The NPRM proposed to continue 

to require repetitive inspections for 

cracking of the radius of the front spar 

vertical stringers and the horizontal 

floor beam on FR 36, repetitive 

inspections for cracking of the fastener 

holes of the front spar vertical stringers 

on FR 36, and repair if necessary. The 

NPRM also proposed to add new 

thresholds and intervals for the 

repetitive inspections; require, for 

certain airplanes, a potential 

terminating action modification of the 

center wing box area; and expand the 

applicability. We are issuing this AD to 

address fatigue cracking of the front spar 

vertical stringers on the wings, which 


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