26668 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 5 CFR

part 890 as follows:

PART 890—FEDERAL EMPLOYEES

HEALTH BENEFITS PROGRAM

1. The authority citation for part 890

continues to read as follows:

Authority: 5 U.S.C. 8913; § 890.803 also

issued under 50 U.S.C. 403p, 22 U.S.C. 4069c

and 4069c–1; subpart L also issued under

sec. 599C of Pub. L. 101–513, 104 Stat. 2064,

as amended.

2. The heading of subpart I is revised

to read as follows:

Subpart I—Limit on Inpatient Hospital

Charges, Physician Charges, and

FEHB Benefit Payments

3. Section 890.901 is revised to read

as follows:

§ 890.901 Purpose.

This subpart identifies the individuals

whose charges and FEHB benefit

payments for inpatient hospital services

and/or physician services may be

limited and sets forth the circumstances

of the limit.

4. Section 890.902 is amended by

revising paragraphs (c) and (d) to read

as follows:

§ 890.902 Definition.

* * * * *

(c) Is age 65 or older or becomes age

65 while receiving inpatient hospital

services or physician services; and

(d) Is not covered by Medicare part A

and/or part B.

5. Section 890.903 is revised to read

as follows:

§ 890.903 Covered services.

(a) The limitation on the charges and

FEHB benefit payments for inpatient

hospital services apply to inpatient

hospital services which are:

(1) Covered under both Medicare part

A and the retired enrolled individual’s

FEHB plan; and

(2) Supplied to a retired enrolled

individual who does not have Medicare

part A; and

(3) Provided by hospital providers

who have in force participation

agreements with the Secretary of Health

and Human Services (HHS) consistent

with sections 1814(a) and 1866 of the

Social Security Act, and receive

Medicare part A payments in

accordance with the diagnosis related

group (DRG) based prospective payment

system (PPS).

(b) The limitation on the charges and

FEHB benefit payments for physician

services apply to physician services, (as

defined in section 1848(j) of the Social

Security Act), which are:

(1) Covered under both Medicare part

B and the retired enrolled individual’s

FEHB plan; and

(2) Supplied to a retired enrolled

individual who does not have Medicare

part B.

6. Section 890.904 is amended by

designating the current paragraph as

paragraph (a), amending newly

designated paragraph (a) by adding the

words ‘‘for inpatient hospital services’’

after the words ‘‘FEHB plan’s benefit

payment’’, and by adding paragraph (b)

to read as follows:

§ 890.904 Determination of FEHB benefit

payment.

* * * * *

(b) The FEHB plan’s benefit payment

for physician services under this

subpart is determined by taking the

lower of the following amounts:

(1) The amount determined by the

FEHB plan, which is equivalent to the

Medicare part B payment under the

Medicare Participating Physician Fee

Schedule for Medicare participating

physicians and the Medicare

Nonparticipating Physician Fee

Schedule for Medicare nonparticipating

physicians (the amount payable before

the Medicare deductible and

coinsurance are applied); or

(2) The actual billed charges; and

(3) Reducing the lower amount by any

FEHB plan deductible, coinsurance, or

copayment that is the responsibility of

the retired enrolled individual.

7. Section 890.905 is revised to read

as follows:

§ 890.905 Limits on inpatient hospital and

physician charges.

(a) Hospitals may not collect from

FEHB plans and retired enrolled

individuals for inpatient hospital

services more than the amount

determined to be equivalent to the

Medicare part A payment under the

DRG-based PPS.

(b) Medicare participating providers

may not collect for FEHB plans and

retired enrolled individuals for

physician services more than the

amount determined to be equivalent to

the Medicare part B payment under the

Medicare Participating Physician Fee

Schedule.

(c) Medicare nonparticipating

providers may not collect from FEHB

plans and retired enrolled individuals

for physician services more than the

amount to be equivalent to the Medicare

limiting charge amount.

8. Section 890.906 is redesignated as

§ 890.909 and a new § 890.906 is added

to read as follows:

§ 890.906 Retired enrolled individuals

coinsurance payments.

(a) A retired enrolled individual’s

coinsurance responsibility for inpatient

hospital services is calculated in

accordance with the plan’s contractual

benefit structure and is based on the

amount determined to be equivalent to

the Medicare part A payment under the

DRG-based PPS.

(b) A retired enrolled individual’s

coinsurance responsibility for physician

services is calculated in accordance

with the plan’s contractual benefit

structure and is based on the lower of

the actual charges or the amount

determined to be equivalent to the

Medicare part B payment under the

Medicare Participating Physician Fee

Schedule for Medicare participating

physicians and the Medicare

Nonparticipating Physician Fee

Schedule for Medicare nonparticipating

physicians.

9. Section 890.907 is redesignated as

§ 890.910 and a new § 890.907 is added

to read as follows:

§ 890.907 Effective dates.

(a) The limitation specified in this

subpart applies to inpatient hospital

admissions commencing on or after

January 1, 1992.

(b) The limitation specified in this

subpart applies to physician services

supplied on or after January 1, 1995.

10. Section 890.908 is added to read

as follows:

§ 890.908 Notification of HHS.

An FEHB plan, under the oversight of

OPM, will notify the Secretary of HHS,

or the Secretary’s designee, if the plan

finds that:

(a) A hospital knowingly and willfully

collects, on a repeated basis, more than

the amount determined to be equivalent

to the Medicare part A payment under

the DRG-based PPS.

(b) A Medicare participating

physician or supplier knowingly and

willfully collects, on a repeated basis,

more than the amount determined to be

equivalent to the Medicare part B

payment under the Medicare

Participating Physician Fee Schedule.

(c) A Medicare nonparticipating

physician or supplier knowingly and

willfully charges, on a repeated basis,

more than the amount determined to be

equivalent to the Medicare limiting

charge amount.

[FR Doc. 95–12169 Filed 5–17–95; 8:45 am]

BILLING CODE 6325–01–M
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations 26669

DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 404

RIN 0563–AB13

Noninsured Crop Disaster Assistance

Program

AGENCY: Federal Crop Insurance

Corporation.

ACTION: Interim rule.

SUMMARY: The Federal Crop Insurance

Corporation (‘‘FCIC’’) hereby adds a new

part 404 to chapter IV of title 7 of the

Code of Federal Regulations (‘‘CFR’’).

The intended effect of this interim rule

is to provide a noninsured crop disaster

assistance program (‘‘NAP’’) to protect

producers of crops for which insurance

is not available. NAP provides a level of

protection in most respects comparable

to the catastrophic risk protection plan

of insurance offered to producers on

certain crops.

DATES: This rule is effective January 1,

1995. Written comments, data, and

opinions on this rule will be accepted

until close of business July 17, 1995 and

will be considered when the rule is to

be made final.

ADDRESSES: Written comments, data,

and opinion on this interim rule should

be sent to Diana Moslak, Regulatory and

Procedural Development Staff, Federal

Crop Insurance Corporation, USDA,

Washington, D.C. 20250. Hand or

messenger delivery may be made to

Suite 500, 2101 L Street, N.W.,

Washington D.C. Written comments will

be available for public inspection and

copying in the Office of the Manager,

2101 L Street, N.W., 5th Floor,

Washington, D.C., during regular

business hours, Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For

further information and a copy of the

Regulatory Impact Analysis to the

Noninsured Crop Disaster Assistance

Program, contact Diana Moslak, Federal

Crop Insurance Corporation, U.S.

Department of Agriculture, Washington,

D.C. 20250. Telephone (202) 254–8314.

SUPPLEMENTARY INFORMATION: This

action has been reviewed under United

States Department of Agriculture

(‘‘USDA’’) procedures established by

Executive Order 12866 and

Departmental Regulation 1512–1. This

action constitutes a review as to the

need, currency, clarity, and

effectiveness of these regulations under

those procedures. The sunset review

date established for these regulations is

May 1, 2000.

This rule has been determined to be

‘‘significant’’ for the purposes of

Executive Order 12866, and therefore,

has been reviewed by the Office of

Management and Budget (‘‘OMB’’).

A Regulatory Impact Analysis has

been completed and is available to

interested persons at the address listed

above. In summary, the analysis finds

that crop insurance reform is expected

to result in net positive benefits to

producers, taxpayers, and society. The

impact on individual producers

compared to payments under ad hoc

disaster programs depends primarily on

the farm’s actual yield or yield assigned

by the FCIC, market prices, and any

adjustments for variable marketing or

production costs. However, reform is

expected to result in less volatility of

producers’ incomes and decrease the

risk of no income due to adverse

weather events. Rural communities and

farmers will benefit from the advanced

knowledge that payments will be made

in times of catastrophic yield losses.

The Government and taxpayers will

benefit from a single disaster protection

program and consequently reduced

Federal outlays. Although producers

will have an added burden to make

application and report yields and

acreage, the benefits in terms of greater

risk protection and reduced potential for

program fraud or abuse outweigh the

costs.

The provisions set forth in this

interim rule will contain information

collections that require clearance by the

Office of Management and Budget

(OMB) pursuant to the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.). Due to the necessity of

implementing the rule immediately, the

agency has requested clearance of this

information collection from OMB. The

public reporting burden for the

information collections that would be

required for compliance with these

regulations is estimated to average 42

minutes per response including the time

for reviewing instructions, searching

existing data sources, gathering and

maintaining data needed, and

completing and reviewing the collection

of information. Comments on the

information collection may be sent to

the Office of Information and Regulatory

Affairs, Office of Management and

Budget, Room 10202, NEOB,

Washington, D.C. 20503. Attention:

Desk Officer for USDA.

It has been determined under section

6(a) of Executive Order 12612,

Federalism, that this rule does not have

sufficient federalism implication to

warrant the preparation of a Federalism

Assessment. The provisions contained

in this rule will not have a substantial

direct effect on states or their political

subdivisions, or on the distribution of

power and responsibilities among the

various levels of government.

This regulation will not have a

significant impact on a substantial

number of small entities. Most

producers will be able to certify to their

historical production levels at the time

of application based on existing records,

or they may elect to base their initial

coverage on transitional or assigned

yields. The amount of data collected

from applicants will only be that needed

to establish an acceptable yield, and

determine the number of acres planted,

and eligibility of the producer, crop and

acreage. The information required and

time of collection is statutory.

Therefore, this action is determined to

be exempt from the provisions of the

Regulatory Flexibility Act (5 U.S.C.

§ 605) and no Regulatory Flexibility

Analysis was prepared.

This program is listed in the Catalog

of Federal Domestic Assistance under

No. 10.450.

This program is not subject to the

provisions of Executive Order 12372

which require intergovernmental

consultation with state and local

officials. See the Notice related to 7 CFR

part 3015, subpart V, published at 48 FR

29115, June 24, 1983.

The Office of the General Counsel has

determined that these regulations meet

the applicable standards provided in

subsections 2(a) and 2(b)(2) of Executive

Order 12778. The provisions of this rule

will preempt state and local laws to the

extent such state and local laws are

inconsistent herewith. Before any

judicial action may be brought regarding

the provisions of this regulation, the

National Appeal Division administrative

appeal procedures must be exhausted.

The provisions of this rule are to be

given retroactive effect to January 1,

1995.

This action is not expected to have

any significant impact on the quality of

the human environment, health, and

safety. Therefore, neither an

Environmental Assessment nor an

Environmental Impact Statement is

needed.

This interim rule implements

programs mandated by the amendments

to the Federal Crop Insurance Act by the

Federal Crop Insurance Reform Act of

1994. Those amendments required that

the statutory changes be implemented

for the 1995 crop year. Many of the final

planting dates or risk periods for crops

for which insurance is not available

have passed or will soon pass. Planting

decisions for 1995 crops have been or

will shortly be made and it is necessary

that producers, lenders, and suppliers

know the parameters and requirements

of the program. Disasters in 1995 subject
26670 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations

to the Act may have occurred.

Therefore, it is impractical and contrary

to the public interest to publish this rule

for notice and comment prior to making

the rule effective. However, comments

are solicited for 60 days after the date

of publication in the Federal Register

and will be considered by FCIC before

this rule is made final.

On October 13, 1994, the amendments

to the Federal Crop Insurance Act, made

by the Federal Crop Insurance Reform

Act of 1994, were effective. This

regulation will provide the provisions to

carry out the noninsured crop disaster

assistance program requirements of the

Reform Act. The Noninsured Crop

Disaster Assistance Program will replace

the provisions of the Disaster Payment

Program (7 CFR part 1477) and the

provisions of the Tree Assistance

Program (7 CFR part 1478). By separate

rule, the Consolidated Farm Service

Agency (‘‘CFSA’’) will amend these

regulations to restrict the crop years of

application to those prior to the crop

year for which this rule will be effective

and later remove those parts.

Background

Upon publication of 7 CFR part 404,

this regulation will provide noninsured

crop disaster assistance through the

USDA and will replace ad hoc disaster

assistance. The provisions of the

noninsured crop disaster assistance

program are as follows:

1. Section 404.9, paragraph (a)—

Provides that producers who are eligible

to receive NAP payments for crop years

1995 through 1998 will receive coverage

against a covered loss greater than fifty

percent (50%) of the approved yield for

the eligible crop payable at sixty percent

(60%) of the average market price for

the crop.

2. Section 404.9, paragraph (b)—

Provides that producers who are eligible

to receive NAP payments after crop year

1998 will receive coverage against a

covered loss greater than fifty percent

(50%) of the approved yield for the

eligible crop payable at fifty-five percent

(55%) of the average market price for

the crop.

3. Section 404.11, paragraph (a)—

Specifies that eligible crops will be

commercial crops or other agricultural

commodities (except livestock), grown

for food or fiber and will also include

floricultural, ornamental nursery,

Christmas tree crops, turfgrass sod,

industrial crops, and aquacultural

species.

4. Section 404.13—Specifies the

minimum ‘‘area’’ of 320,000 acres or a

geographical area with a minimum

average value of at least $80 million for

all crops produced annually.

5. Section 404.13, paragraph (d)—

Allows for an area determination to be

ten or more producers of the crop in

those eligible areas outside the United

States.

6. Section 404.15—Provides that

yields will be established by the FCIC

for the purposes of providing NAP

payments. Yields may be established by

using the actual production history of

the producer over a prescribed period,

or if there is inadequate documentation

to calculate the actual production

history, generally in accordance with 7

CFR part 400, subpart G. The FCIC will

ensure that the NAP payments

accurately reflect significant yield

variations due to different farming

practices, such as between irrigated and

non-irrigated acreage.

7. Section 404.15, paragraph (h)—

Specifies that producers with contracts

for guaranteed payments for production

will have their harvested production

adjusted upward to reflect the amount

of the contract payment.

8. Section 404.15, paragraph (i)—A

producer who produces a crop in a

county where the acreage of the crop for

the county has increased by more than

100 percent over any year in the

preceding seven years may not use an

assigned yield unless:

(a) The planted acreage of the

producer for the crop has been

inspected prior to the loss by a third

party acceptable to the FCIC; or

(b) The CFSA County Executive

Director and the CFSA State Executive

Director recommend an exemption to

FCIC for approval. FCIC will limit use

of assigned yields to one loss year.

9. Section 404.17—Provides for the

filing of an annual acreage report by the

producer for each eligible crop at the

local office to be eligible for NAP

payments. For each year, producers

must report their current year’s acreage

and the previous year’s crop production

history.

10. Section 404.19, paragraphs (a) and

(b)—Specifies that to qualify for NAP

payments, any loss or prevented

planting of the eligible crop must be due

to drought, flood, or other natural

disaster, as determined by the Secretary.

NAP payments will not cover losses due

to neglect or malfeasance of the

producer, or the failure of the producer

to reseed or replant to the same crop in

those areas and under such

circumstances where it is customary to

reseed or replant, or the failure of the

producer to follow good farming

practices.

11. Section 404.19, paragraph (c)—

Specifies that a producer of an eligible

crop will not receive NAP payments for

loss in production or prevented planting

unless the projected average or actual

yield for the crop in an area falls below

65 percent of the expected area yield

established by FCIC. Once the area

eligibility requirement has been

satisfied, the total quantity of the

eligible crop that the producer is able to

harvest on the unit must be less than 50

percent of the approved yield. FCIC will

make a payment for the difference

between the determined yield and 50

percent of the producer’s approved

yield. Once the area eligibility

requirement has been met, a producer of

an eligible crop may receive NAP

payments for prevented planting if the

producer is prevented from planting

more than 35 percent of the acreage.

Intended acreage may be verified using

records of historical acreage planted to

the eligible crop.

12. Section 404.21, paragraph (a)—

Provides for notice of damage or loss at

the local office within 15 calendar days

after the occurrence of the prevented

planting or damage to the crop to be

eligible for NAP payments. With the

exception for the 1995 crop year, in

which case, the notice must be filed

within the later of 45 days after this rule

is published in the Federal Register or

15 days after the occurrence of the

prevented planting or damage to the

crop.

13. Section 404.21, paragraph (b)—

Requires the producer to make an

application for payment at the local

office before the deadline set by FCIC.

14. Section 404.23—Specifies that if

the producer is eligible to receive NAP

payments and is also eligible to receive

benefits for the same loss under other

USDA programs, the producer must

elect the program from which to receive

benefits.

15. Section 404.25—Specifies that the

total amount of payments that a person

may receive annually under this title

will not exceed $100,000. A producer

with qualifying gross revenues of $2

million or more may not receive NAP

payments.

16. Section 404.27—Specifies that if a

producer conceals or misrepresents any

material fact, commits fraud, or

participates in a scheme or device, the

producer will not be eligible to receive

any payments applicable to that crop

year and could be subject to penalties

specified in the Act.

List of Subjects in 7 CFR Part 404

Agricultural commodities, Disaster

assistance, Reporting and recordkeeping

requirements.

Interim Rule

For the reasons set out in the

preamble, a new part 404 is added to
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations 26671

chapter IV of title 7 of the CFR, to read

as follows:

PART 404—NONINSURED CROP

DISASTER ASSISTANCE PROGRAM—

REGULATIONS FOR THE 1995 AND

SUCCEEDING CROP YEARS

Sec.

404.1 General statement.

404.3 Applicability.

404.5 Administration.

404.7 Definitions.

404.9 Coverage.

404.11 Eligibility.

404.13 Area.

404.15 Yield determinations.

404.17 Acreage report.

404.19 Loss requirements.

404.21 Application for payment and notice

of loss.

404.23 Multiple benefits.

404.25 Payment and income limitations.

404.27 Misrepresentation, scheme and

device, and fraud.

404.29 Refunds to the corporation.

404.31 Cumulative liability.

404.33 Appeals.

404.35 Exemption from levy.

404.37 Estates, trusts, and minors.

404.39 Death, incompetence, or

disappearance.

404.41 OMB control numbers.

Authority: 7 U.S.C. 1506(l).

§ 404.1 General statement.

The Federal Crop Insurance Act, as

amended by the Federal Crop Insurance

Reform Act of 1994 (the ‘‘Act’’), requires

the Federal Crop Insurance Corporation

(FCIC) to implement a noninsured crop

disaster assistance program (NAP) to

provide eligible producers of eligible

crops with protection somewhat

comparable to the catastrophic risk

protection plan of insurance. NAP is

designed to help reduce production

risks faced by producers of uninsurable

crops. NAP will reduce financial losses

that occur when natural disasters cause

a loss of production or prevented

planting of an eligible crop. Payment

eligibility is based on an expected yield

for the area and an approved yield for

an individual producer unit based on

actual production history or a

transitional yield, if sufficient actual

production records are not available.

Production for both the applicable area

expected yield and the individual

producer approved yield for the unit

must fall below specified percentages in

order to be eligible for payments under

this part.

§ 404.3 Applicability.

The provisions contained in this part

are applicable to each eligible producer

and each eligible crop and acreage for

which catastrophic risk protection

coverage is not otherwise available.

§ 404.5 Administration.

(a) The NAP program will be

administered under the general

supervision of the FCIC, and will be

carried out through state and county

committees and offices of the CFSA, or

other local USDA offices if designated

by FCIC.

(b) The state CFSA committee will, in

accordance with this part, recommend

the geographical size and shape of the

area where a natural disaster has

occurred, and whether the area

eligibility requirement has been

satisfied. The recommendation of

eligibility will be submitted to FCIC for

review and approval or disapproval.

(c) FCIC will determine all yields and

prices under this part.

(d) No delegation herein to a state or

county CFSA committee will preclude

the FCIC Manager from determining any

question arising under NAP or from

reversing or modifying any

determination made by a state or county

CFSA committee.

§ 404.7 Definitions.

(a) Actual production history. Refer to

7 CFR part 400, subpart G, except that

the terms of subpart G will read as

follows when referring to NAP:

Insurance terms NAP terms

Agent ......................... Local office representative.

Claim ......................... Application for payment.

Claim for indemnity ... Application for payment.

Indemnity payment .... NAP payment.

Insurable acreage ..... Eligible acreage.

Insurable cause ......... Natural disaster.

Insurable crop ........... Eligible crop.

Insurance company ... Provider.

Insurance purposes .. NAP purposes.

Insured ...................... Eligible producer.

Insured producer ....... Eligible producer.

Uninsurable acreage . Ineligible acreage.

Uninsurable production.Ineligible production.

Uninsured cause of

loss appraisal.

Assigned production.

Uninsured production Ineligible production.

(b) Actual yield. The yield per acre for

a crop year calculated from production

records or NAP payments in accordance

with 7 CFR part 400, subpart G.

(c) Adjusted yield. The transitional

yield reduced by the applicable

percentage for lack of adequate records

in accordance with 7 CFR part 400,

subpart G.

(d) Approved yield. A yield calculated

and approved by the verifier, used to

determine any NAP payment in

accordance with 7 CFR part 400, subpart

G.

(e) Aquacultural species. Any species

of aquatic organism grown as food for

human consumption or fish raised as

feed for fish that are consumed by

humans, and which is propagated and

reared in an aquatic medium by a

commercial operator on private property

in water in a controlled environment.

(f) Area. The geographic region

recommended by the state CFSA

committee, and approved by FCIC in

accordance with § 404.13 of this part,

where a natural disaster has occurred

which may qualify producers in the

geographic area for NAP payments.

(g) Assigned yield. A yield assigned

for a crop year in the base period if the

producer does not file an acceptable

production report by the production

reporting date in accordance with 7 CFR

part 400, subpart G. Assigned yields are

used in the same manner as actual

yields when calculating APH. An

assigned yield may not be used for a

production report in a disaster year.

(h) Average market price. The price or

dollar equivalent on an appropriate

basis; i.e., bushel, ton, etc., for an

eligible crop established by FCIC for

determining NAP payments. Such price

will be on a harvested basis without the

inclusion of transportation, storage,

processing, packing, marketing or other

post-harvest expenses and will be based,

in part, on historical data.

(i) CCC. The Commodity Credit

Corporation.

(j) CFSA. The Consolidated Farm

Service Agency of the United States

Department of Agriculture.

(k) County expected yield. The

eligible crop yield established by FCIC

for the county. Such yield information

may be obtained from the National

Agricultural Statistics Service (NASS),

CSREES, credible nongovernmental

studies, and yields in similar areas. For

planted annual crops, such yield will be

based on the acreage planted for harvest.

(l) Crop year. The period of time

within which the crop is normally

grown and designated by the calendar

year in which the crop is normally

harvested in the area.

(m) CSREES. The Cooperative State

Research, Education, and Extension

Service.

(n) Eligible crop. An agricultural

commodity including all types and

varieties or acreage of a commodity for

which insurance is not available under

any FCIC insurance program and which

is commercially produced for food or

fiber as specified in this part. Eligible

crop shall also include floricultural,

ornamental nursery, Christmas tree,

turfgrass sod, industrial crops, and

aquacultural species. In the case of a

crop that historically has multiple

plantings in the same crop year that are

planted or are prevented from being
26672 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations

planted on the same or different acreage

will be considered different crops for

determining NAP payments. This does

not apply to a replacement crop.

(o) Expected area yield. The eligible

crop yield established and approved by

FCIC for the geographic area.

(p) FCIC. The Federal Crop Insurance

Corporation, a wholly owned

Government Corporation within the

Consolidated Farm Service Agency,

United States Department of

Agriculture.

(q) Good farming practices. The

cultural practices generally used in the

area for the crop to make normal

progress toward maturity and produce

at least the individual unit approved

yield. The practices are normally those

recognized by CSREES as compatible

with agronomic and weather conditions

in the area.

(r) Harvested. A single harvest crop is

considered harvested when the

producer has, by hand or mechanically,

removed the crop from the field. A

multiple harvest crop is considered

harvested when the producer has, by

hand or mechanically, removed at least

one harvesting from the field. The crop

is considered harvested once it is taken

off the field and placed in a truck or

other conveyance. (Exceptions: Hay is

considered harvested when in the bale,

whether removed from the field or not.

Grazing is not considered harvesting

except for seeded pasture.)

(s) Livestock. Any farm or other

animal excluding aquacultural species

and, including but not limited to

domestic avian, ruminant, equine, and

swine species grown or maintained for

any purpose.

(t) Local office. The CFSA office or

other USDA office designated by FCIC.

(u) Master yields. Approved APH

yields, for certain crops and counties as

designated by the FCIC, used to

determine any NAP payment in

accordance with 7 CFR part 400, subpart

G.

(v) Natural disaster. Means damaging

weather, including but not limited to

drought, hail, flood, excessive moisture,

freeze, tornado, hurricane, or excessive

wind, or any combination thereof; or

other adverse natural occurrence,

including but not limited to earthquake,

volcanic eruption, heat, locust

infestation; or that directly causes,

accelerates, or exacerbates the

destruction or deterioration of an

eligible crop.

(w) Operator. The person who is in

general control of the farming operation

on the farm during the crop year.

(x) Person. A person as defined in 7

CFR part 1497, subpart B.

(y) Prevented planting. The inability

to plant a crop with proper equipment

during the planting period for the crop

or commodity. A producer must have

been unable to plant the eligible crop

due to a natural disaster that prevented

most producers in the surrounding area

from planting such crop during the

same planting period. The natural

disaster that caused the prevented

planting may occur prior to the planting

period for the crop in the area, but must

not occur earlier than the planting

period for such crop the prior crop year.

(z) Producer. A person who, as owner,

landlord, tenant, or sharecropper, is

entitled to share in the production from

the eligible commodity or in the

proceeds thereof.

(aa) Production report. A written

record showing the commodity’s annual

production and used to determine the

producer’s yield for NAP purposes. The

report contains yield history by unit, if

applicable, including planted acreage

for annual crops, eligible acreage for

perennial crops, and harvested and

appraised production for the previous

crop years. This report must be

supported by verifiable written records,

measurement of farm-stored production,

or by other records of production

approved by FCIC on an individual

basis. Information contained in an

application for payment is considered a

production report for the unit for the

crop year for which the application was

filed.

(bb) Qualifying gross revenues means:

(1) With respect to a person who

receives more than 50 percent of such

person’s gross income from farming,

ranching, and forestry operations, the

annual gross income for the calendar

year from such operations; and

(2) With respect to a person who

receives 50 percent or less of such

person’s gross income from farming,

ranching, and forestry operations, the

person’s total gross income from all

sources.

(cc) Reseeded or replanted crop. The

same crop planted on the same acreage

after the first planting of the crop has

failed.

(dd) Replacement crop. A different

crop planted on the same acreage after

the failure of the first crop, excluding

reseeded or replanted crops.

(ee) Seeded pasture. Acreage which is

seeded on cropland, as defined in 7 CFR

part 719, to an annual crop intended for

use as grazing only by domestic

animals.

(ff) Share. The producer’s percentage

of interest in the eligible crop as an

owner, operator, or tenant at the

beginning of the crop year. For the

purposes of determining eligibility for

NAP payments, the producer’s share

will not exceed the producer’s share at

the earlier of the time of loss or the

beginning of harvest. Acreage or interest

attributed to a spouse, child, or member

of the same household may be

considered part of the producer’s share

unless considered a separate person.

(gg) Transitional NAP yield (‘‘T’’

Yield). An estimated yield based on the

county expected yield adjusted for

individual producers as determined by

FCIC. The T-yield will be used in the

approved yield calculation process

when less than four consecutive crop

years of actual or assigned yields are

available.

(hh) Unit. For the noninsured crop

disaster assistance program, all acreage

of the eligible crop in the county on the

date coverage begins for the crop year:

(1) In which the person has onehundred percent (100%) crop share; or

(2) Which is owned by one person

and operated by another person on a

share basis.

(Example: If, in addition to the land the

person owns, the person rents land from five

landlords, three on a crop share basis and

two on a cash basis, the person would be

entitled to four units, one unit for each crop

share lease and one unit which includes the

two cash leases and the land owned by the

person.) Land rented for cash, a fixed

commodity payment, or any consideration

other than a share in the crop on such land

will be considered as owned by the lessee.

No unit other than that stated herein will be

permitted.

§ 404.9 Coverage.

(a) Producers who are eligible to

receive NAP payments for crop years

1995 through 1998 will receive coverage

against loss in yield greater than fifty

percent (50%) of the producer’s

approved yield for the eligible crop

payable at sixty percent (60%) of the

established average market price for the

crop.

(b) Producers who are eligible to

receive NAP payments after crop year

1998 will receive coverage against loss

in yield greater than fifty percent (50%)

of the producer’s approved yield for the

eligible crop payable at fifty-five percent

(55%) of the established average market

price for the crop.

(c) FCIC will adjust the NAP payment

rate for crops that are produced with

significant and variable expenses that

are not incurred because the crop

acreage was prevented from being

planted or planted but not harvested.

(d) NAP payments will be determined

by unit based on the production of all

acreage of that crop (planted and

eligible prevented from being planted)

in the unit.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations 26673

(e) Each producer’s NAP payment will

be based on the producer’s share of the

eligible crop.

§ 404.11 Eligibility.

(a) Eligible crops under this part will

be any commercial agricultural crop,

commodity, or acreage of a commodity

grown for food or fiber for which the

catastrophic risk protection plan of

insurance is not available in the area

under 7 CFR part 402 unless excluded

in paragraph (b) of this section. All

types and varieties of a crop or

commodity will be treated as a single

eligible crop. NAP benefits will be made

available for:

(1) Any commercial crop grown for

human consumption;

(2) Any commercial crop planted and

grown for livestock consumption,

including but not limited to grain and

forage crops and seeded pasture;

(3) Any commercial crop grown for

fiber, excluding trees grown for wood,

paper, or pulp products;

(4) Any commercially produced

aquacultural species;

(5) Floriculture;

(6) Ornamental nursery crops;

(7) Christmas trees;

(8) Turfgrass sod; and

(9) Industrial crops.

(b) NAP payments will not be

available for:

(1) Losses of livestock or their byproducts;

(2) Any person who has qualifying

gross revenues in excess of $2 million;

(3) Any acreage in any area for any

crop for which the catastrophic risk

protection plan of insurance under 7

CFR part 402 is available or would have

been available had the crop been timely

planted in accordance with 7 CFR part

402 unless the delay in planting was

caused by a natural disaster;

(4) Any person who has violated

chapter XII and section 1764 of the Food

Security Act of 1985 by being convicted

under Federal or state law of planting,

cultivating, growing, producing,

harvesting or storing a controlled

substance in any crop year;

(5) Producing an agricultural

commodity in any crop year on a field

on which highly erodible land is

predominant, unless the person is

exempt under the provisions of § 12.5 of

this title; or

(6) Producing an agricultural

commodity in any crop year on

converted wetland, unless the person is

exempt under the provisions of § 12.5 of

this title.

(c) Any tenant, landlord, or producer

on the unit separate from the person

determined to be ineligible under this

provision will remain eligible for NAP

payments for their share of the crop

unless such tenant, landlord, or

producer on the unit is:

(1) Also convicted of planting,

cultivating, growing, producing,

harvesting or storing a controlled

substance;

(2) Also in violation of chapter XII of

the Food Security Act of 1985 and the

regulations issued thereunder; or

(3) Otherwise determined by FCIC to

be ineligible for NAP payments.

§ 404.13 Area.

For the purposes of this part, all

acreage affected by a natural disaster, or

any adjustment thereto, will be included

in the area recommended by the state

CFSA committee and submitted to FCIC

for approval, regardless of whether the

commodity produced on the affected

acreage suffered a loss. The minimum

area will be 320,000 acres or a

geographical area with not less than an

$80 million average value for all crops

produced annually. The minimum area

will be determined as follows:

(a) The shape of the area will be

contiguous and will correspond to the

shape of the natural disaster to the

maximum extent possible. If the acreage

affected by the natural disaster is less

than the number of acres needed to meet

the area size requirement and does not

meet the $80 million value requirement,

the state CFSA committee will add acres

equally from all surrounding cropland

including undamaged acres until the

minimum size is met.

(b) If the acreage affected by the

natural disaster is not contiguous:

(1) The area will include all acreage

that has been affected by the same

natural disaster within the area.

(2) The acreage included in the area

will be contiguous taking into

consideration geological breaks

(identifiable variations in topography

such as mountain ranges and rivers).

(3) If the distance between affected

acreages is so distant that it is not

practical to include all of the acreage

within the area, the acreage may be

divided into separate areas.

(c) The area may not be defined in any

manner that arbitrarily includes or

excludes producers or cropland.

(d) In lieu of paragraphs (a) and (b) of

this section, for eligible areas outside

the United States, the area shall include

ten or more producers of the crop.

(e) If a part of a contiguous unit is

affected by a disaster, the whole

contiguous unit will need not be

included in the determination of the

area. However, the whole unit will be

used to determine if the producer

suffered a loss.

§ 404.15 Yield determinations.

(a) FCIC will establish expected area

yields for eligible crops for each county

or area for which the NAP is available,

using available information, which may

include, but is not limited to, NASS

data, CSREES records, credible

nongovernment studies, yields in

similar areas, and reported APH data.

(b) FCIC may make county yield

adjustments taking into consideration

different yield variations due to

different farming practices in the county

such as irrigated and nonirrigated

acreage.

(c) In establishing expected area

yields for eligible crops:

(1) If the approved area corresponds

to a single county, the expected area

yield will be the yield established by

FCIC for that county, including any

adjustments permitted by this section;

(2) If the approved area encompasses

portions of or more than one county, the

expected area yield will be the weighted

average of the yields established by

FCIC for those counties in the area,

including any adjustments permitted by

this section.

(3) FCIC may adjust expected area

yields if:

(A) The cultural practices, including

the age of the planting or plantings, are

different from those used to establish

the yield.

(B) The expected area yield

established on a state or county level is

determined to be incorrect for the area.

(d) FCIC will establish approved

yields for purposes of providing

assistance under this part. Approved

yields for the eligible crop will be based

on the producer’s actual production

history in accordance with the

provisions of 7 CFR part 400, subpart G.

(e) The approved yield established for

the producer for the year in which the

NAP payments are offered will be equal

to the average of the consecutive crop

year yields reported and certified of that

producer for that eligible crop.

(f) If a producer receives an assigned

yield for a year of natural disaster, the

producer will be ineligible to receive an

assigned yield for any subsequent year

disaster unless adequate production

records for the eligible crop from the

previous one or more years are provided

to the local office. The producer shall

receive a zero yield for those years the

producer is ineligible to receive an

assigned yield.

(g) FCIC will select certain producers

and require those selected to provide

adequate records to support the

information provided. Producers may

also be required to support the yield

certification at the time of loss

adjustment or on post-audit. Each
26674 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations

certification must be supported by

adequate records. Failure to produce

adequate records may subject the

producer to criminal and civil false

claims actions under various Federal

statutes as well as refund of any amount

received. In addition, sanctions as set

out at 7 CFR part 400, subpart R may be

imposed for false certification. Adequate

records may include:

(1) Commercial receipts, settlement

sheets, warehouse ledger sheets, or load

summaries if the eligible crop was sold

or otherwise disposed of through

commercial channels; and

(2) Such documentary evidence as is

necessary in order to verify the

information provided by the producer if

the eligible crop has been sold, fed to

livestock, or otherwise disposed of other

than through commercial channels such

as contemporaneous measurements,

truck scale tickets, contemporaneous

diaries, etc.

(h) Any producer who has a contract

to receive a guaranteed payment for

production, as opposed to delivery, of

an eligible crop will have the

production adjusted upward by the

amount of the production corresponding

to the amount of the contract payment

received.

(i)(1) Producers will not be eligible to

receive an assigned yield if the acreage

of the crop in a county for the crop year

has increased by more than 100 percent

over any year in the preceding seven

crop years, unless:

(i) The producer provides adequate

records of production costs, acres

planted, and yield for the crop year for

which benefits are being sought.

(ii) If FCIC determines that the records

provided under this paragraph are

inadequate, FCIC may require proof that

the eligible crop could have been

marketed at a reasonable price had the

crop been harvested.

(2) The provisions of paragraph (i)(1)

of this section will not apply if:

(i) The crop has been inspected prior

to the occurrence of a loss by a third

party acceptable to FCIC; or

(ii) The CFSA County Executive

Director, with concurrence of the CFSA

State Director, makes a recommendation

for an exemption from the requirements

and such recommendation is approved

by FCIC.

§ 404.17 Acreage report.

(a) Producers must file one or more

acreage reports annually at the local

office no later than the date specified by

the Corporation for each crop the

producer will want made eligible for the

NAP program. The acreage report may

be filed by the farm operator. Any

producer will be bound by the acreage

report filed by the farm operator unless

the producer files a separate acreage

report prior to the acreage reporting

date.

(b) That acreage report must include:

(1) All acreage in the county of the

eligible crop (for each planting in the

event of multiple planting) in which the

producer has a share;

(2) The producer’s share at the time of

planting or the beginning of the crop

year;

(3) The CFSA farm serial numbers;

(4) The crop and practice;

(5) All persons sharing in the crop

(the identity of any person having a

substantial beneficial interest in the

crop (refer to 7 CFR part 400, subpart Q)

and the person’s employer identification

number or social security number);

(6) The date the crop was planted;

(7) Acreage prevented from being

planted; and

(8) Production from the previous crop

year. (For example: The producer

reported the crop acreage planted in

1995. The producer must then report the

1995 production for that acreage by the

1996 acreage reporting date for the

crop.)

(c) A person’s failure to submit the

required information by the designated

acreage reporting dates shall result in

the denial of NAP payments. If there is

a change of ownership, operation, or

share within the farming operation after

the acreage reporting date, the local

office must be notified not later than

thirty calendar days after the change

and proof of the change must be

provided in order to maintain eligibility

for payments under this part.

§ 404.19 Loss requirements.

(a) To qualify for payment under this

part, the loss or prevented planting of

the eligible crop must be due to drought,

flood, or other natural disaster as

determined by the Secretary.

(b) NAP assistance will not cover

losses due to:

(1) The neglect or malfeasance of the

producer;

(2) The failure of the producer to

reseed or replant to the same crop in the

county where it is customary to reseed

or replant;

(3) The failure of the producer to

follow good farming practices for the

commodity and practice;

(4) Water contained or released by any

governmental, public, or private dam or

reservoir project;

(5) Failure or breakdown of irrigation

equipment or facilities; or

(6) Except for tree crops and

perennials, inadequate irrigation

resources at the beginning of the crop

year.

(c) A producer of an eligible crop will

not receive NAP payments unless the

projected average or actual yield for the

crop, or an equivalent measurement if

yield information is not available, in the

area falls below sixty-five percent (65%)

of the expected area yield. Once this

area eligibility requirement has been

satisfied:

(1) A reduced yield NAP payment

will be made to a producer if the total

quantity of the eligible crop that the

producer is able to harvest on the unit

is less than fifty percent (50%) of the

individual unit approved yield for the

crop, factored for the share of the

producer for the crop. Production from

the entire unit will be used to determine

the individual loss. The quantity will

not be reduced for any quality

consideration unless a zero value is

established.

(2) A prevented planting NAP

payment will be made if the producer is

prevented from planting more than

thirty-five percent (35%) of the total

eligible acreage intended for planting to

the eligible crop.

(A) Eligible crop acreage will not

exceed 100% of the simple average of

the number of acres planted to the crop

by the producer in the loss area during

the years used to determine the

approved yield, unless FCIC has

previously agreed in writing to approve

acreage exceeding this limit.

(B) The percentage of the acreage that

is prevented from being planted will be

determined by dividing the producer’s

prevented planted acreage within the

loss area by the producer’s total acreage

intended to be planted in the loss area.

The acreage intended to be planted may

be verified using records of historical

acreage.

(C) For the purposes of determining

eligible acreage for prevented planting

payment, all eligible acreage of the crop

within the loss area will be reduced by

the number of acres of the crop planted

within the loss area. In the event one or

more crops are eligible for a prevented

planting payment in the same crop year,

and there is acreage planted to another

crop in excess of such crop eligible

acreage, such excess acreage will be

prorated to the crops eligible for

prevented planting on the basis of such

crop’s eligible acreages.

(D) NAP payments for prevented

planting will not be available for:

(i) tree crops and other perennials;

(ii) land which planting history or

conservation plans indicate would

remain fallow for crop rotation

purposes;

(iii) land used for conservation

purposes or intended to be or

considered to have been left unplanted
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations 26675

under any program administered by

USDA; or

(iv) land planted with a replacement

crop.

§ 404.21 Application for payment and

notice of loss.

(a) Any person with a share in the

eligible crop who would be entitled to

a NAP payment must make application

and provide a notice of damage or loss

within 15 calendar days after the

occurrence of the prevented planting

(the end of the planting period) or

damage to the crop. For the 1995 crop

year only, the notice must be filed

within the later of 45 days after this rule

is published in the Federal Register or

15 days after the occurrence of the

prevented planting or damage to the

crop. The notice must be filed at the

local office serving the area where the

producer’s unit is located. The farm

operator may provide the notice for all

producers with an interest in the crop.

All producers on a farm will be bound

by the operator’s filing or failure to file

the application for payment unless the

individual producers elect to timely file

their notice.

(b) Applications for NAP payments

must be filed on our form by the

applicant with the local office no later

than the application deadline.

(1) If the producer chooses not to

harvest the crop, all eligible acres and

crop units for which the producer

intends to make an application for

payment must be left intact until the

units have been appraised or released by

a FCIC loss adjuster.

(2) If the producer harvests the crop,

the producer must provide such

documentary evidence of crop

production as FCIC may require which

may include leaving representative

samples of the crop for inspection.

(c) Failure to make timely application

or to supply the required documentary

evidence shall result in the denial of

NAP payments.

(d) Benefits under this part may be

assigned by the eligible producer only

on our form and such assignment is

effective only when approved by FCIC.

Failure of FCIC to make payment in

accordance with such assignment will

not give rise to any liability on the part

of FCIC to the assignee.

§ 404.23 Multiple benefits.

(a) If a producer is eligible to receive

NAP payments under this part and

benefits under any other program

administered by the Secretary for the

same crop loss, the producer must

choose whether to receive the other

program benefits or NAP payments. The

producer is not eligible for both. Such

election does not relieve the producer

from the requirements of making a

production and acreage report.

(b) Applicable programs include, but

are not limited to, the Emergency

Livestock Feed Assistance Program and

any other program determined by FCIC

to compensate the producer for the same

crop loss.

§ 404.25 Payment and income limitations.

NAP payments made to eligible

producers are subject to the following

provisions:

(a) For the purpose of making such

payments, the term ‘‘producer’’ will be

considered to mean the term ‘‘person’’

as determined in accordance with 7 CFR

part 1497, subpart B.

(b) No person shall receive payments

under this part in excess of $100,000.

(c) A person who has qualifying gross

revenues in excess of $2 million for the

previous calendar year shall not be

eligible to receive NAP payments under

this part.

(d) Simple interest on payments to the

producer which are delayed will be

computed on the net payments

ultimately found to be due, from and

including the 61st day after the latter of

the date the producer signs, dates, and

submits a properly completed

application for payment on the

designated form, the date disputed

applications are adjudicated, or the date

the area trigger is established for NAP

payments. Interest will be paid unless

the reason for failure to timely pay is

due to the producer’s failure to provide

information or other material necessary

for the computation or payment. The

interest rate will be that established by

the Secretary of the Treasury under

section 12 of the Contract Disputes Act

of 1978 (41 U.S.C. 611), and published

in the Federal Register semiannually on

or about January 1 and July 1 of each

year and may vary with each

publication.

§ 404.27 Misrepresentation, scheme and

device, and fraud.

(a) If FCIC determines that any

producer has erroneously represented

any fact or has adopted, participated in,

or benefited from, any scheme or device

that has the effect of defeating, or is

designed to defeat the purpose of this

part, such producer will not be eligible

to receive any payments applicable to

the crop year for which the scheme or

device was adopted.

(b) If any misrepresentation, scheme

or device, or practice has been

employed for the purpose of causing

FCIC to make a payment which FCIC

otherwise would not make under this

part:

(1) FCIC will withhold all or part of

the payment that would otherwise be

due.

(2) All amounts paid by FCIC to any

such producer, applicable to the crop

year in which the offense occurred,

must be refunded to FCIC together with

interest and other amounts as

determined in accordance with this

part.

(3) FCIC may impose such other

penalties as authorized by section

506(n) of the Federal Crop Insurance

Act, as amended or available under 7

CFR part 400, subpart R.

(c) Scheme and device may include,

but is not limited to:

(1) Concealing any information having

a bearing on the application of the rules

of this part;

(2) Submitting false information to the

FCIC or any county or state CFSA

committee; or

(3) Creating fictitious entities for the

purpose of concealing the interest of a

person in the farming operation.

§ 404.29 Refunds to the corporation.

(a) In the event that there is a failure

to comply with any term, requirement,

or condition for payment made in

accordance with this part, or the

payment was established as a result of

erroneous information provided by any

person, or was erroneously computed,

all such payments or overpayments will

be refunded to FCIC on demand,

together with interest.

(b) Interest will accrue in accordance

with the provisions of 7 CFR 1403.9.

(c) Interest on any amount due the

FCIC found to have been received by the

producer as a result of fraud,

misrepresentation, scheme or device, or

presenting a false application for

payment will start on the date the

producer received the payment.

(d) Recovery of delinquent debts and

set off will be in accordance with 7 CFR

part 1403.

(e) If FCIC determines it is necessary

to contract with a collection agency or

to employ an attorney to assist in

collection, the producer will pay all the

expenses of collection.

(f) All amounts paid will be applied

first to the payment of expense of

collection, second to the reduction of

any penalties which may have been

assessed, then to the reduction of

accrued interest, then to the reduction

of the principal balance.

§ 404.31 Cumulative liability.

(a) The liability of any producer for

any payment or refunds, which is

determined in accordance with this part

to be due to FCIC, will be in addition

to any other liability of such producer
26676 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Rules and Regulations

under any civil or criminal fraud statute

or any other statute or provision of law

including, but not limited to, 18 U.S.C.

286, 287, 371, 641, 1001; 1014, and 31

U.S.C. 3729.

(b) All producers receiving payments

under this part will be jointly and

severally liable to repay any unearned

NAP payments.

§ 404.33 Appeals.

The appeal, reconsideration, or

review of all determinations made

under this part, except the designation

of an area for which there is no appeal

rights because it is determined a rule of

general applicability, must be in

accordance with part 780 of this title or

the regulations promulgated by the

National Appeals Division, whichever is

applicable.

§ 404.35 Exemption from levy.

Any payment that is due any person

under this part will be made without

regard to questions of title under state

law and without regard to any

attachment, levy, garnishment, or any

other legal process against the crop, and

the proceeds thereof, which may be

asserted by any creditor, except

statutory liens of the United States.

§ 404.37 Estates, trusts, and minors.

(a) Program documents executed by

persons legally authorized to represent

estates or trusts will be accepted only if

such person furnishes evidence of the

authority to execute such documents.

(b) A minor who is otherwise eligible

will be eligible for NAP payments under

this part only if such person meets one

of the following requirements:

(1) The minor establishes that the

right of majority has been conferred on

the minor by court proceedings or by

statute;

(2) A guardian has been appointed to

manage the minor’s property and the

applicable program documents are

executed by the guardian; or

(3) A bond is furnished under which

the surety guarantees any loss incurred

for which the minor would be liable had

the minor been an adult.

§ 404.39 Death, incompetence, or

disappearance.

In the case of death, incompetence or

disappearance, of any person who is

eligible to receive NAP payments in

accordance with this part, such

payments will be disbursed in

accordance with part 707 of this title.

§ 404.41 OMB control numbers.

The provisions set forth in this

interim rule contain information

collection that require clearance by the

Office of Management and Budget

(‘‘OMB’’) under the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.). Previous information collection

requirements have been approved under

OMB control numbers 0560–0004,

0563–0007, 0563–0016, and 0563–0036.

The new information collection

requirements have been submitted to

OMB for approval under OMB control

number 0563–0016 and are not effective

until approved by OMB.

Done in Washington, DC, on May 15, 1995.

Kenneth D. Ackerman,

Manager, Federal Crop Insurance

Corporation.

[FR Doc. 95–12292 Filed 5–15–95; 4:29 pm]

BILLING CODE 3410–08–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212, 245, and 248

[INS No. 1688–95]

RIN 1115–AD89

Waiver of the Two-Year Home Country

Physical Presence Requirement for

Certain Foreign Medical Graduates

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(Service) regulations by allowing certain

foreign medical graduates who entered

the United States in J–1 status, or who

acquired J–1 status after arrival in the

United States, to obtain a waiver of the

2-year home country residence and

physical presence requirement under

section 212(e)(iii) of the Immigration

and Nationality Act (Act) pursuant to a

request by a State Department of Public

Health, or its equivalent. The waiver is

intended to permit these foreign

medical graduates to work at a health

care facility in an area designated by the

Secretary, Health and Human Services

(HHS), as having a shortage of health

care professionals (‘‘HHS-designated

shortage area’’). This interim rule also

contains provisions which will permit

these foreign medical graduates to

change their nonimmigrant status in the

United States from J–1 exchange visitor

to H–1B specialty occupation worker.

DATES: This interim rule is effective May

18, 1995. Written comments must be

received on or before July 17, 1995.

ADDRESSES: Please submit written

comments, in triplicate, to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

number 1688–95 on your

correspondence. Comments are

available for public inspection at this

location by calling (202) 514–3048 to

arrange an appointment.

FOR FURTHER INFORMATION CONTACT:

Sophia Cox, Senior Adjudications

Officer, Adjudications Division,

Immigration and Naturalization Service,

425 I Street NW., Room 3214,

Washington, DC 20536, telephone (202)

514–5014.

SUPPLEMENTARY INFORMATION:

Background

Under section 212(e) of the Act,

certain J–1 exchange visitors (and their

J–2 dependent spouse and children) are

subject to a 2-year home country

residence and physical presence

requirement (the ‘‘2-year requirement’’).

Exchange visitors (and dependents) who

are subject to this requirement must

reside and be physically present in their

country of nationality or last residence

abroad (‘‘home’’ country) for an

aggregate of at least 2 years following

departure from the United States. J–1/J–

2 exchange visitors who are subject to

the 2-year requirement are not allowed

to change their nonimmigrant status to,

or be admitted to the United States

under the H (temporary worker or

trainee) or L (intracompany transferee)

nonimmigrant categories, or acquire

lawful permanent resident status, unless

they have complied with this

requirement or have been granted a

waiver thereof.

The following categories of exchange

visitors (and their accompanying spouse

and children in dependent J–2 status)

are subject to the 2-year requirement: (a)

Those whose J–1 program was financed

in whole or in part by an agency of the

U.S. Government, or by the government

of their ‘‘home’’ country; (b) those

whose field of specialized knowledge or

skill, as indicated on Form IAP–66

(Certificate of Eligibility), is required in

their home country; and (c) those who

entered the United States in J–1 status

(or who acquired J–1 status subsequent

to arrival in the United States) to receive

graduate medical education or training.

Under section 212(e) of the Act, a

waiver of the 2-year requirement may be

granted by the Service upon the

favorable recommendation of the

Director of the United States

Information Agency (USIA). Waivers

can be obtained on the basis of: (a)

Exceptional hardship to the applicant’s

U.S. citizen or permanent resident