72864 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Part 760 

RIN 0560–AH76 

Emergency Agricultural Assistance, 

2007; Crop Disaster and Livestock 

Indemnity Programs 

AGENCY: Farm Service Agency, USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes the Farm 

Service Agency (FSA) regulations for 

the 2007 Emergency Agricultural 

Assistance. The rule implements 

legislation that provides funds for 

agricultural disaster aid for eligible 

producers, specifically a Crop Disaster 

Program (CDP) and a 2005–2007 

Livestock Indemnity Program (LIP). For 

CDP, the program applies only to 2005, 

2006, and 2007 crop producers who 

chose to have a Federal Crop Insurance 

plan of insurance or Noninsured Crop 

Disaster Assistance Program coverage 

for the year of loss and suffered damage 

due to a natural disaster. Eligible crops 

for 2007 must have been planted prior 

to February 28, 2007. For LIP, the 

program applies only to livestock 

producers in counties designated as a 

major disaster or emergency area by the 

President or those declared a natural 

disaster area by the Secretary of 

Agriculture. Counties designated 

disasters by the President may be 

eligible even though agricultural loss 

was not covered by the designation if 

there has been an FSA Administrator’s 

Physical Loss Notice covering such 

losses. The natural disaster declarations 

by the Secretary or designations by 

President must have been issued 

between January 1, 2005, and February 

28, 2007; that is after January 1, 2005 

and before February 28, 2007. Counties 

contiguous to such counties will also be 

eligible. 

DATES: This rule is effective December 

19, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Salomon Ramirez, Director, Production, 

Emergencies, and Compliance Division; 

Farm Service Agency; United States 

Department of Agriculture, STOP 0517, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0517; telephone 

(202) 720–7641; e-mail 

salomon.ramirez@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule implements the 

agricultural assistance provisions of the 

U.S. Troop Readiness, Veterans’ Care, 

Katrina Recovery, and Iraq 

Accountability Appropriations Act, 

2007 (Pub. L. 110–28) (the 2007 

Emergency Supplemental), enacted May 

25, 2007. The 2007 Emergency 

Supplemental authorizes the Secretary 

of Agriculture (Secretary) to assist 

producers of livestock and agricultural 

commodities through programs 

administered by FSA. 

All counties, owners, contract 

growers, lessees, livestock, crops, and 

losses, must meet the eligibility criteria 

provided in this rule. False 

certifications carry severe ramifications. 

FSA will validate applications with 

random spot-checks. 

A payment limitation of $80,000 per 

program per person is applicable to 

payments made under the 2007 

Emergency Supplemental. The amount 

of any payment for which a participant 

may be eligible under any of these 

programs may be reduced by any 

amount received by the participant for 

the same or any similar loss. Other 

restrictions apply including, but not 

limited to, those pertaining to highly 

erodible land and wetland conservation 

provisions. Livestock and crop losses 

that are not weather-related are not 

covered. 

The average adjusted gross income 

(AGI) limitation as administered under 

7 CFR part 1400, subpart G, applies. AGI 

eligibility is based on the average of the 

adjusted gross incomes for the three tax 

years immediately preceding the tax 

year for which disaster assistance is 

being requested, with the exclusion of 

any year(s) the individual or entity did 

not have income or had an AGI of zero. 

Crop Disaster Program 

Section 9001 of the 2007 Emergency 

Supplemental authorizes the Secretary 

to provide assistance to crop producers 

for qualifying crop quantity or crop 

quality losses due to damaging weather 

and related conditions for one, but not 

more than one, of the 2005, 2006, or 

2007 crop years. The 2007 Emergency 

Supplemental requires that assistance 

for quantity losses to be made available 

in the same manner as provided under 

section 815 of the Agricultural, Rural 

Development, Food and Drug 

Administration, and Related Agencies 

Appropriations Act, 2001 (Pub. L. 106– 

387) (the 2001 Appropriations Act), 

except that the payment rate will be 42 

percent of the established price, instead 

of 65 percent. Like under section 815 of 

the 2001 Appropriations Act, only 

approved yields based on production 

evidence submitted prior to the 

enactment of the 2007 Emergency 

Supplemental will be used for the 

purposes of the 2005, 2006, and 2007 

CDP. This is also applicable to those 

plans of insurance or NAP that did not 

or do not have approved yields 

calculated based on actual production 

history. FSA does not have the 

resources or the knowledge to calculate 

those approved yields now. 

Additionally, historically, FSA has not 

computed approved yields following 

enactment of legislation authorizing 

similar ad hoc disaster assistance. There 

are a plethora of reasons for not 

computing such yields now, not the 

least of which is burdening participants 

and FSA offices with tasks that will 

undoubtedly slow the dispersal of funds 

that Congress wanted issued timely. 

There are also serious integrity issues 

related to allowing, as a general matter, 

participants an opportunity to now in 

conjunction with a loss claim 

application under this ad hoc 

legislation, the opportunity to now alter 

or change their expected level of 

production in the year of alleged loss. 

The same quantity loss thresholds used 

under section 815 of the 2001 

Appropriations Act are applicable. The 

2007 Emergency Supplemental provides 

that total assistance provided to a 

participant for a crop year under the 

Crop Disaster Program (CDP), together 

with any amount provided to the same 

participant for the same crop made 

pursuant to any crop insurance program 

or the Noninsured Crop Disaster 

Assistance Program (NAP), plus the 

value of the crop that was not lost, may 

not exceed 95 percent of the value of the 

crop in the absence of a loss, as 

estimated by FSA. 

By statute, a participant seeking 

financial assistance under this rule will 

not be eligible for payments if the 

participant did not obtain a Federal 

Crop Insurance Plan or NAP coverage 

for the crop incurring loss for the year 

in which assistance is requested. 

Circumstances why a participant either 

chose to not have such insurance or 

NAP coverage are irrelevant to 

determination of CDP eligibility. Those 

circumstances, accordingly, will not be 

considered under any of the relief 

provisions outlined in 7 CFR part 718. 

The CDP objectives are as follows: 

• Use crop insurance principles to the 

extent practicable. 

• Establish an equitable distribution 

of payments based on the losses of each 

producer. 

• Treat producers with similar losses 

similarly. 

• Distribute payments according to 

the geographic location of the losses. 

• Ensure that all producers are 

notified of program benefits. 

Eligible crops include insured crops 

and NAP covered crops. Insured crops 


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1 Value loss crops ineligible for quality losses 

include aquaculture, floriculture, mushrooms, 

ginseng root, ornamental nursery, and Christmas 

trees. 

2Specialty crops ineligible for quality losses 

include honey, maple sap, and turf grass sod. 

are crops insured by a Federallysubsidized crop insurance policy. NAP 

covered crops are crops for which crop 

insurance is not available, but are 

covered by NAP. Under the previous 

CDP, crop insurance and NAP coverage 

were not required for eligibility. 

For quality losses, producers are 

eligible for assistance for quality losses 

of at least 25-percent. All crops are 

eligible for quality losses except for 

value loss crops 1 and some specialty 

crops.2 The total affected production for 

a quality loss payment cannot exceed 

the expected production. Payments will 

be made only on 65 percent of the 

quantity of production. 

Payment rates will be based on five 

broad loss levels, determined as follows: 

Level For estimated quality loss ranges 

(percentage) 

The following percentages of established prices 1 are 

used: 

I ........................................................ 25.0 and 34.9 .................................................................................................................. 30 

II ....................................................... 35.0 and 54.9 .................................................................................................................. 45 

III ...................................................... 55.0 and 74.9 .................................................................................................................. 65 

IV ..................................................... 75.0 and 94.9 .................................................................................................................. 85 

V ...................................................... 95.0 and 100.0 ................................................................................................................ 95 

1Established prices are marketing contract prices, catastrophic risk protection, Actual Production History prices, or 5-year average prices. 

For marketing contracts and quality 

loss assistance, under the CDP, 

production of a commodity sold 

pursuant to a marketing contract is 

eligible for quality loss assistance based 

on one or more prices specified in the 

contracts. When there are multiple 

marketing contract prices, a weighted 

average will be calculated to determine 

a single blended price. Production of a 

commodity not sold through marketing 

contracts is eligible for quality loss 

assistance based on the average local 

market discounts for reduced quality, as 

determined by the appropriate State 

committee of FSA. 

For insurable crops, only producers 

who purchased crop insurance for the 

affected crop during the applicable 

disaster year are eligible to receive crop 

disaster payments. For NAP covered 

crops, producers must have participated 

in NAP for the crop for which they are 

seeking benefits in the disaster year. 

Livestock Indemnity Program 

Section 9002(b) of the 2007 

Emergency Supplemental appropriates 

to the Secretary such sums as necessary 

to remain available until expended to 

provide assistance to livestock 

producers for certain livestock deaths 

directly resulting from natural disasters 

that occurred between January 1, 2005, 

and February 28, 2007, that is after 

January 1, 2005, but before February 28, 

2007, including losses due to blizzards 

that started in 2006 and continued into 

January 2007. To be eligible for 

assistance under the 2005–2007 

Livestock Indemnity Program (LIP), the 

participant must have suffered livestock 

loss due to an eligible disaster event 

occurring after January 1, 2005, but 

before February 28, 2007, and the 

livestock must have been physically 

located in a county or contiguous 

county having a natural disaster 

designated by the President or declared 

by the Secretary after January 1, 2005, 

but before February 28, 2007. For timely 

Presidential declarations that do not 

cover agricultural physical loss, the 

subject counties may still be eligible if 

the county was the subject of an 

approved Administrator’s Physical Loss 

Notice (APLN) when the APLN applies 

to a natural disaster designated by the 

President. Livestock producers 

incurring livestock losses in more than 

one of the 2005, 2006, and 2007 

calendar years may only select one year 

in which to receive assistance. 

The 2005–2007 LIP is administered by 

FSA and funds have been appropriated 

to FSA for such purpose. Therefore, it 

is implemented through regulations in 7 

CFR part 760. We are establishing a new 

subpart J for the 2005–2007 LIP 

regulations. 

The 2005–2007 LIP will provide 

assistance to eligible producers (owners 

and contract growers) of eligible 

livestock located in a total of 2,944 

counties. These 2,944 counties refer to 

the total number of declared counties, 

regardless of the number of times for 

which they received disaster 

declarations after January 1, 2005, but 

before February 28, 2007. The 

regulations will specify what makes a 

county eligible. The list of eligible 

counties is on the FSA Web site. 

The natural disasters covered by the 

2005–2007 LIP include various 

hurricanes, extreme heat, wildfires, and 

blizzards that occurred after January 1, 

2005, but before February 28, 2007. 

Payments under the 2005–2007 LIP 

are based on the type, kind, and weight 

of eligible livestock. The amount of 

payment that a person may receive 

under the 2005–2007 LIP cannot exceed 

$80,000. 

Eligible livestock includes certain 

beef cattle, dairy cattle, buffalo, beefalo, 

equine, sheep, goats, deer, swine, 

poultry, reindeer, catfish, and crawfish 

that died as a direct result of an eligible 

disaster and on the day they perished 

were all of the following: 

• Owned by an eligible owner or in 

the possession of an eligible contract 

grower; 

• Maintained for commercial use as 

part of a farming operation of the 

participant on the day they died; and 

• Died in an eligible county as a 

direct result of an eligible disaster event 

during the disaster period. 

Participants must provide verifiable 

documentation of livestock deaths 

claimed. 

Payments will be made to contract 

growers to the extent of their contractual 

risk, as determined by FSA. Any 

compensation received by the contract 

grower from the contractor for loss of 

income for the dead livestock will be 

deducted from the contract grower’s 

payment. 

An eligible producer who received 

payments for disaster-related livestock 

losses from the 2005 hurricanes under 

earlier LIPs may only receive payments 

under the 2005–2007 LIP under the 

following two circumstances: (1) A 

participant who lost livestock to 

subsequent disasters in 2006 or 2007, is 

eligible for payments resulting from the 

subsequent disasters, but must elect to 

declare losses and receive payments for 

only one of those two years. (2) A 

participant with eligible livestock who 

received payments for disaster-related 

livestock losses from the 2005 

hurricanes under an earlier LIP may also 

elect to receive payments under the 


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72866 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations 

2005–2007 LIP, however, the payment 

will be reduced by the amount received 

for the same disaster under an earlier 

LIP. This second situation is not 

expected to produce any payments 

because payment rates under earlier 

programs were higher than payment 

rates under the 2005–2007 LIP. 

Notice and Comment 

These regulations are exempt from the 

notice and comment requirements of the 

Administrative Procedures Act (5 U.S.C. 

553) and the Statement of Policy of the 

Secretary effective July 24, 1971 (36 FR 

13804) relating to notices of proposed 

rulemaking and public participation in 

rulemaking, as specified in section 9005 

of the 2007 Emergency Supplemental, 

which requires that the regulations be 

promulgated and administered without 

regard to those notice and comment 

provisions. 

Executive Order 12866 

This rule has been determined to be 

economically significant under 

Executive Order 12866 and has been 

reviewed by the Office of Management 

and Budget. A Cost-Benefit Analysis 

(CBA) was completed and is available 

from the contact person listed above. 

The summary of the anticipated 

economic impacts for CDP and LIP are 

described below. 

Crops 

Total crop disaster payments are 

expected to range from $1.6 billion to 

$2.0 billion. The low end of the range 

is estimated at $1.6 billion reflecting the 

probability that the more restrictive 

eligibility provisions and the reduction 

in the quality loss threshold may lower 

payments. The high end of the range is 

estimated at $2.0 billion reflecting the 

probability that the new marketing 

contract provisions may increase 

payments. 

The 2005 and 2006 payments are 

expected to be mainly based on the 2006 

crop year because crop losses were more 

severe in 2006. A large portion of 2007 

payments are expected to be paid to 

winter wheat and specialty crop 

producers affected by freezes. CDP 

payments for 2007 winter wheat are 

estimated at $190 million. CDP 

payments for 2007 oranges are estimated 

at $7 million. CDP payments for 2007 

peaches are estimated at $6 million. 

CDP payments for 2007 lemons are 

estimated at $2 million. 

The past crop disaster programs 

(2001/2002 and 2003/2004) had very 

similar crop disaster payouts, with 

payments of $2.5 billion for each 

program. Qualitative adjustments to the 

estimates were necessary because of 

program changes. Program changes that 

are expected to cause the estimate to be 

lower include: 

• Insurable crops that are uninsured 

are ineligible for crop disaster 

payments; 

• Non-insurable crops not covered, 

but eligible, through NAP are ineligible 

for crop disaster payments; and 

• Producers that will be compensated 

for losses of at least 25 percent quality 

loss. 

New provisions that allow production 

of a commodity sold through marketing 

contracts to be eligible for quality loss 

assistance based on the prices specified 

in the contracts are expected to increase 

payments. 

Livestock 

The value of expected claims under 

the 2005–2007 LIP is $14.4 million. To 

the extent program payments are 

ultimately spent on forage or grain or 

affect the total supply of available 

livestock, the impacts of the 2005–2007 

LIP on any sector of the economy, 

including livestock feed prices, 

livestock prices, and consumer prices, 

are not expected to be measurable. 

However, for those participants who 

have suffered losses from disasters 

between January 1, 2005, and February 

28, 2007, and qualify for payments 

under the 2005–2007 LIP, their farm 

income losses will be somewhat offset 

or reduced by these payments, and they 

and their local communities may benefit 

accordingly. 

Most claims for losses are expected to 

result from conditions of extreme heat 

in California and blizzards that affected 

Colorado, western Kansas, two counties 

in northern New Mexico, and one 

county in Oklahoma. There are expected 

to be some producers in the Gulf Coast 

states who may not have applied for 

payments under an earlier LIP, or who 

had losses from other disasters for 

which the county in which they 

produced the livestock was declared a 

primary disaster county or an adjoining 

county. For example, several hundred 

cattle are reported to have died in Texas 

as a result of wildfires. Such claims are 

not expected to be significant, however. 

Other claims may also exist among other 

counties in the United States, but these 

are also expected to be quite small and 

no information exists upon which to 

make estimates. 

The impact of the 2005–2007 LIP is 

not expected to be significant in terms 

of aggregate change in social welfare. 

FSA initially estimates expected 

payments totaling $14.4 million for the 

2005–2007 LIP, the sum of 

approximately $13.4 million for landbased losses and $1 million for 

payments to catfish and crawfish 

producers. The actual number of eligible 

owners, contract growers, and livestock 

and program costs will become more 

certain toward the end of signup for the 

program. Actual claims are expected to 

be less than the estimated $14.4 million 

because some persons may exceed the 

$80,000 payment limit, or their adjusted 

gross incomes may exceed $2.5 million. 

The $14.4 million is $3.3 million less 

than the $17.7 million paid out under 

the 2005 LIP. In comparison, the 2005 

LIP used a 30 percent payout rate, 

compared to the 26 percent rate used in 

the 2005–2007 LIP, and paid for 

hurricane-related losses located in 

States affected by those hurricanes. If 

the 2005–2007 LIP payout rate was also 

30 percent, the payout amount would be 

$16.6 million (0.3*($14.4/.26) = $16.6), 

or over $1 million less than the 2005 

payout amount. 

The above magnitude of difference 

appears reasonable in spite of the fact 

that the 2005–2007 LIP is national in 

scope, and covers all disasters between 

January 1, 2005, and February 28, 2007, 

including catfish and crawfish, while 

the 2005 LIP only covered 9 states in the 

Southeast and Gulf Coast region. First, 

nearly all payments under the 2005–

2007 LIP are expected to cover two 

specific disasters: losses of an estimated 

16,000 dairy cattle from extreme heat in 

California and an estimated 20,000 beef 

cattle lost from blizzards in the winter 

of 2006–2007 that affected Colorado, 

Kansas, and New Mexico. Second, 

participants who received payments 

under the 2005 LIP are not expected to 

apply for payments under the 2005–

2007 LIP because their payment rates 

were higher under the earlier program 

and they cannot receive payments under 

both programs without returning monies 

received under the 2005 LIP. 

Regulatory Flexibility Act 

This rule is not subject to the 

Regulatory Flexibility Act since the 

Farm Service Agency is not required to 

publish a notice of proposed rulemaking 

for this rule. 

Environmental Review 

The environmental impacts of this 

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 regulations for 

compliance with NEPA (7 CFR part 

799). The following final rule was 

determined to be Categorically Excluded 

because it is considered a ministerial 

action solely involving the transfer of 


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funds to offset disaster related losses 

with no site-specific or grounddisturbing actions occurring as a 

requirement or an immediate result of 

program implementation. Therefore, no 

environmental assessment or 

environmental impact statement will be 

completed for this final rule. 

Executive Order 12372 

This program is not subject to 

Executive Order 12372, which requires 

consultation with State and local 

officials. See the notice related to 7 CFR 

part 3015, subpart V, published in the 

Federal Register on June 24, 1983 (48 

FR 29115). 

Executive Order 12612 

This rule does not have Federalism 

implications that warrant the 

preparation of a Federalism Assessment. 

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. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988. This final rule 

is not retroactive and it does not 

preempt State or local laws, regulations, 

or policies unless they present an 

irreconcilable conflict with this rule. 

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. 

Unfunded Mandates 

This rule contains no Federal 

mandates under the regulatory 

provisions of Title II of the UMRA for 

State, local, and tribal government or 

the private sector. Therefore, this rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

Paperwork Reduction Act 

These regulations are exempt from the 

requirements of the Paperwork 

Reduction Act (44 U.S.C. Chapter 35), as 

specified in section 9005(b)(3) of the 

2007 Emergency Supplemental, which 

provides that these regulations, which 

are necessary to implement title IX of 

the 2007 Emergency Supplemental, be 

promulgated and administered without 

regard to the Paperwork Reduction Act. 

E-Government Act Compliance 

CCC 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. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule has been determined to be 

Major under the Small Business 

Regulatory Enforcement Fairness Act of 

1996, (Pub. L. 104–121) (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. Consistent 

with the provisions of 9005(c) of the 

2007 Emergency Supplemental, FSA 

finds that it would be contrary to the 

public interest to delay implementation 

of this rule because it would 

significantly delay assistance to the 

many people affected by the disasters 

addressed by this rule. Therefore, this 

rule is effective immediately. 

List of Subjects in 7 CFR Part 760 

Dairy products, Indemnity payments, 

Pesticides and pests, Reporting and 

recordkeeping requirements. 

■ For the reasons explained above, 7 

CFR part 760 is amended as follows: 

PART 760—INDEMNITY PAYMENT 

PROGRAMS 

■ 1. Revise the authority citation for 7 

CFR part 760 to read as follows: 

Authority: 7 U.S.C. 612c; Pub. L. 106–387, 

114 Stat. 1549; Pub. L. 107–76, 115 Stat. 704; 

Title III, Pub. L. 109–234, 120 Stat. 474; 16 

U.S.C. 3801, note; and Title IX, Pub. L. 110–

28. 

■ 2. Amend 7 CFR part 760 by adding 

new subparts I and J to read as follows: 

Subpart I—2005–2007 Crop Disaster 

Program 

Sec. 

760.800 Applicability. 

760.801 Administration. 

760.802 Definitions. 

760.803 Eligibility. 

760.804 Time and method of application. 

760.805 Limitations on payments and other 

benefits. 

760.806 Crop eligibility requirements. 

760.807 Miscellaneous provisions. 

760.808 General provisions. 

760.809 Eligible damaging conditions. 

760.810 Qualifying 2005, 2006, or 2007 

quantity crop losses. 

760.811 Rates and yields; calculating 

payments. 

760.812 Production losses; participant 

responsibility. 

760.813 Determination of production. 

760.814 Calculation of acreage for crop 

losses other than prevented planted. 

760.815 Calculation of prevented planted 

acreage. 

760.816 Value loss crops. 

760.817 Quality losses for 2005, 2006, and 

2007 crops. 

760.818 Marketing contracts. 

760.819 Misrepresentation, scheme, or 

device. 

760.820 Offsets, assignments, and debt 

settlement. 

760.821 Compliance with highly erodible 

land and wetland conservation. 

Subpart J—2005–2007 Livestock Indemnity 

Program 

760.900 Administration. 

760.901 Applicability. 

760.902 Eligible counties and disaster 

periods. 

760.903 Definitions. 

760.904 Limitations on payments and other 

benefits. 

760.905 Eligible owners and contract 

growers. 

760.906 Eligible livestock. 

760.907 Application process. 

760.908 Deceased individuals or dissolved 

entities. 

760.909 Payment calculation. 

760.910 Appeals. 

760.911 Offsets, assignments, and debt 

settlement. 

760.912 Records and inspections. 

760.913 Refunds; joint and several liability. 

Subpart I—2005–2007 Crop Disaster 

Program 

§ 760.800 Applicability. 

This part sets forth the terms and 

conditions for the 2005–2007 Crop 

Disaster Program (2005–2007 CDP). CDP 

makes emergency financial assistance 

available to producers who have 

incurred crop losses in quantity or 

quality for eligible 2005, 2006, or 2007 

crop years due to disasters as 

determined by the Secretary under 

provisions of Title IX of the U.S. Troop 

Readiness, Veterans’ Care, Katrina 

Recovery, and Iraq Accountability 

Appropriations Act, 2007 (Pub. L. 110–

28). However, to be eligible for 

assistance, the crop subject to the loss 

must have been planted or existed 

before February 28, 2007, or, in the case 

of prevented planting, would have been 

planted before February 28, 2007. 

§ 760.801 Administration. 

(a) The program will be administered 

under the general supervision of the 

Deputy Administrator for Farm 

Programs and will be carried out in the 

field by FSA State and county 

committees. 

(b) State and county committees and 

representatives do not have the 

authority to modify or waive any of the 

provisions of this part. 

(c) The State committee will take any 

action required by this part that has not 

been taken by a county committee. The 

State committee will also: 


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(1) Correct, or require a county 

committee to correct, any action taken 

by that FSA county committee that is 

not in accordance with this part; and 

(2) Require a county committee to 

withhold taking or reverse any action 

that is not in accordance with this part. 

(d) No provision or delegation to a 

State or county committee will prevent 

the Deputy Administrator for Farm 

Programs from determining any 

question arising under the program or 

from reversing or modifying any 

determination made by a State or county 

committee. 

(e) The Deputy Administrator for 

Farm Programs may authorize State and 

county committees to waive or modify 

non-statutory deadlines or other 

program requirements in cases where 

lateness or failure to meet such does not 

adversely affect the operation of the 

program. 

§ 760.802 Definitions. 

The following definitions apply to 

this part. The definitions in parts 718 

and 1400 of this title also apply, except 

where they conflict with the definitions 

in this section. 

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 for Farm 

Programs. 

Administrative fee means an amount 

the producer must pay for Noninsured 

Crop Disaster Assistance Program (NAP) 

enrollment for non-insurable crops. 

Affected production means, with 

respect to quality losses, the harvested 

production of an eligible crop that has 

a documented quality reduction of 25 

percent or more on the verifiable 

production record. 

Appraised production means 

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 in 

accordance with FCIC’s Actual 

Production History (APH) Program at 

part 400, subpart G of this title or, for 

crops not included under 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. Only the approved yields 

based on production evidence 

submitted to FSA prior to May 25, 2007 

will be used for purposes of the 2005–

2007 CDP. 

Aquaculture means a value loss crop 

for the reproduction and rearing of 

aquatic species in controlled or selected 

environments including, but not limited 

to, ocean ranching, except private ocean 

ranching of Pacific salmon for profit in 

those States where such ranching is 

prohibited by law. 

Aquaculture facility means any land 

or structure including, but not limited 

to, a laboratory, concrete pond, 

hatchery, rearing pond, raceway, pen, 

incubator, or other equipment used in 

aquaculture. 

Aquaculture species means any 

aquaculture species as defined in part 

1437 of this title. 

Average market price means the price 

or dollar equivalent on an appropriate 

basis for an eligible crop established by 

FSA, or CCC, or RMA, as applicable, for 

determining payment amounts. Such 

price will be based on historical data of 

the harvest basis excluding 

transportation, storage, processing, 

packing, marketing, or other postharvesting expenses. Average market 

prices are generally applicable to all 

similarly situated participants and are 

not established in response to 

individual participants. Accordingly, 

the established average market prices 

are not appealable under parts 11 or 780 

of this title. 

Catastrophic risk protection means 

the minimum level of coverage offered 

by FCIC. 

CCC means the Commodity Credit 

Corporation. 

Controlled environment means, with 

respect to those crops for which a 

controlled environment is expected to 

be provided, including but not limited 

to ornamental nursery, aquaculture 

(including ornamental fish), and 

floriculture, an environment in which 

everything that can practicably be 

controlled with structures, facilities, 

growing media (including, but not 

limited to, water, soil, or nutrients) by 

the producer, is in fact controlled by the 

producer. 

Crop insurance means an insurance 

policy reinsured by FCIC under the 

provisions of the Federal Crop 

Insurance Act, as amended. 

Crop year means: 

(1) For insured crops, the crop year as 

defined according to the applicable crop 

insurance policy; 

(2) For NAP covered crops, as 

provided in part 1437 of this title. 

Damaging weather means drought, 

excessive moisture, hail, freeze, tornado, 

hurricane, typhoon, excessive wind, 

excessive heat, weather-related 

saltwater intrusion, weather-related 

irrigation water rationing, and 

earthquake and volcanic eruptions, or 

any combination. It also includes a 

related condition that occurs as a result 

of the damaging weather and 

exacerbates the condition of the crop, 

such as crop disease, and insect 

infestation. 

Deputy Administrator means the 

Deputy Administrator for Farm 

Programs, Farm Service Agency, U.S. 

Department of Agriculture or designee. 

Eligible crop means a crop insured by 

FCIC as defined in part 400 of this title, 

or included under NAP as defined 

under part 1437 of this title for which 

insurance or NAP coverage was 

obtained timely for the year which CDP 

benefits are sought. 

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 acres of the crop for the unit. 

FCIC means the Federal Crop 

Insurance Corporation, a wholly owned 

Government Corporation within USDA. 

Final planting date means the latest 

date, established by the Risk 

Management Agency (RMA) for insured 

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 covered 

crops, the final planting date is as 

provided in part 1437 of this title. 

Flood prevention means: 

(1) For aquaculture species, placing 

the aquaculture facility in an area not 

prone to flood; 

(2) In the case of raceways, devices or 

structures designed for the control of 

water level; and 

(3) With respect to nursery crops, 

placing containerized stock in a raised 

area above expected flood level and 

providing draining facilities, such as 

drainage ditches or tile, gravel, cinder, 

or sand base. 

Good nursery growing practices 

means utilizing flood prevention, 

growing media, fertilization to obtain 

expected production results, irrigation, 

insect and disease control, weed, rodent 

and wildlife control, and over 

winterization storage facilities. 

Ground water means aqueous supply 

existing in an aquifer subsurface that is 

brought to the surface and made 

available for irrigation by mechanical 

means such as by pumps and irrigation 

wells. 

Growing media means: 

(1) For aquaculture species, media 

that provides nutrients necessary for the 

production of the aquaculture species 

and protects the aquaculture species 

from harmful species or chemicals or 


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(2) For nursery crops, a well-drained 

media with a minimum 20 percent air 

pore space and pH adjustment for the 

type of plant produced designed to 

prevent ‘‘root rot.’’

Harvested means: 

(1) For insured crops, harvested as 

defined according to the applicable crop 

insurance policy; 

(2) For NAP covered single harvest 

crops, that a crop has been removed 

from the field, either by hand or 

mechanically, or by grazing of livestock; 

(3) For NAP covered 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 

covered 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. A 

crop that is intended for mechanical 

harvest, but subsequently grazed and 

not mechanically harvested, will have 

an unharvested factor applied. 

Historic yield means, for a unit, the 

higher of the county average yield or the 

participant’s approved yield. 

(1) An insured participant’s yield will 

be the higher of the county average yield 

listed or the approved federal crop 

insurance APH, for the disaster year. 

(2) NAP participant’s yield will be the 

higher of the county average or 

approved NAP APH for the disaster 

year. 

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). 

Marketing contract means a legally 

binding written contract between a 

purchaser and grower for the purpose of 

marketing a crop. 

Market value means: 

(1) The price(s) designated in the 

marketing contract; or 

(2) If not designated in a marketing 

contract, the rate established for 

quantity payments under § 760.811. 

Maximum average loss level means 

the maximum average level of crop loss 

to be attributed to a participant without 

acceptable production records 

(verifiable or reliable). Loss levels are 

expressed in either a percent of loss or 

yield per acre, and are intended to 

reflect the amount of production that a 

participant would have been expected 

to make if not for the eligible disaster 

conditions in the area or county, as 

determined by the county committee in 

accordance with instructions issued by 

the Deputy Administrator. 

Multi-use crop means a crop intended 

for more than one end use during the 

calendar year such as grass harvested for 

seed, hay, and grazing. 

Multiple cropping means the planting 

of two or more different crops on the 

same acreage for harvest within the 

same crop year. 

Multiple planting means the planting 

for harvest of the same crop in more 

than one planting period in a crop year 

on different acreage. 

NASS means the National 

Agricultural Statistics Service. 

Net crop insurance indemnity means 

the indemnity minus the producer paid 

premium. 

NAP covered means a crop for which 

the participants obtained assistance 

under section 196 of the Federal 

Agriculture Improvement and Reform 

Act of 1996 (7 U.S.C. 7333). 

Normal mortality means the 

percentage of dead aquaculture species 

that would normally occur during the 

crop year. 

Person means person as defined in 

part 1400 of this title, and all rules with 

respect to the determination of a person 

found in that part are applicable to this 

part. However, the determinations made 

in this part in accordance with part 

1400, subpart B, Person Determinations, 

of this title will also take into account 

any affiliation with any entity in which 

an individual or entity has an interest, 

regardless of whether or not such 

entities are considered to be actively 

engaged in farming. 

Planted acreage means land in which 

seed, plants, or trees have been placed, 

appropriate for the crop and planting 

method, at a correct depth, into a 

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. 

Production means quantity of the crop 

or commodity produced expressed in a 

specific unit of measure including, but 

not limited to, bushels or pounds. 

Rate means price per unit of the crop 

or commodity. 

Recording county means, for a 

producer with farming interests in only 

one county, the FSA county office in 

which the producer’s farm is 

administratively located or, for a 

producer with farming interests that are 

administratively located in more than 

one county, the FSA county office 

designated by FSA to control the 

payments received by the producer. 

Related condition means, with respect 

to a disaster, a condition that causes 

deterioration of a crop, such as insect 

infestation, plant disease, or aflatoxin, 

that is accelerated or exacerbated as a 

result of damaging weather, as 

determined in accordance with 

instructions issued by the Deputy 

Administrator. 

Reliable production records means 

evidence provided by the 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. 

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 FSA or CCCestablished price for that use. 

State committee means the FSA State 

committee. 

Surface irrigation water means 

aqueous supply anticipated for 

irrigation of agricultural crops absent an 

eligible disaster condition impacting 

either the aquifer or watershed. Surface 

irrigation water may result from feral 

sources or from irrigation districts. 

Tropical crops has the meaning 

assigned in part 1437 of this title. 

Tropical region has the meaning 

assigned in part 1437 of this title. 

Unharvested factor means a 

percentage established for a crop and 

applied in a payment formula to reduce 

the payment for reduced expenses 

incurred because commercial harvest 

was not performed. Unharvested factors 

are generally applicable to all similarly 

situated participants and are not 

established in response to individual 


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participants. Accordingly established 

unharvested factors are not appealable 

under parts 11 and 780 of this title. 

Unit means, unless otherwise 

determined by the Deputy 

Administrator, basic unit as defined in 

part 457 of this title that, for ornamental 

nursery production, includes all eligible 

plant species and sizes. 

Unit of measure means: 

(1) For all insured crops, the FCICestablished unit of measure; 

(2) For all NAP covered crops, the 

established unit of measure, if available, 

used for the 2005, 2006, or 2007 NAP 

price and yield; 

(3) For aquaculture species, a 

standard unit of measure such as 

gallons, pounds, inches, or pieces, 

established by the State committee for 

all aquaculture species or varieties; 

(4) For turfgrass sod, a square yard; 

(5) For maple sap, a gallon; 

(6) For honey, pounds; and 

(7) For all other crops, the smallest 

unit of measure that lends itself to the 

greatest level of accuracy with minimal 

use of fractions, as determined by the 

State committee. 

United States means all 50 States of 

the United States, the Commonwealth of 

Puerto Rico, the Virgin Islands of the 

United States, and to the extent the 

Deputy Administrator determines it to 

be feasible and appropriate, Guam, 

American Samoa, the Commonwealth of 

the Northern Mariana Islands, and the 

former Trust Territory of the Pacific 

Islands, which include Palau, Federated 

States of Micronesia, and the Marshall 

Islands. 

USDA means the United States 

Department of Agriculture. 

USDA Plant Hardiness Zone means 

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 

assigned in part 1437 of this title. 

Verifiable production record means: 

(1) For quantity losses, evidence that 

is used to substantiate the amount of 

production reported and that can be 

verified by FSA through an independent 

source; or 

(2) For quality losses, evidence that is 

used to substantiate the amount of 

production reported and that can be 

verified by FSA through an independent 

source including determined quality 

factors and the specific quantity covered 

by those factors. 

Yield means unit of production, 

measured in bushels, pounds, or other 

unit of measure, per area of 

consideration, usually measured in 

acres. 

§ 760.803 Eligibility. 

(a) Participants will be eligible to 

receive disaster benefits under this part 

only if they incurred qualifying quantity 

or quality losses for the 2005, 2006, or 

2007 crops, as further specified in this 

part, as a result of damaging weather or 

any related condition. Participants may 

not receive benefits with respect to 

volunteer stands of crops. 

(b) Payments may be made for losses 

suffered by an eligible participant who, 

at the time of application, is a deceased 

individual or is a dissolved entity if a 

representative, who currently has 

authority to enter into a contract for the 

participant, signs the 2005, 2006, or 

2007 Crop Disaster Program application. 

Participants must provide proof of the 

authority to sign legal documents for the 

deceased individual or dissolved entity. 

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. 

(c) As a condition to receive benefits 

under this part, 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 2005, 2006, or 

2007 crop year, as applicable, and must 

not otherwise be precluded from 

receiving benefits under parts 12 or 

1400 of this title or any law. 

§ 760.804 Time and method of application. 

(a) The 2005, 2006, 2007 Crop 

Disaster Program application must be 

submitted on a completed FSA–840, or 

such other form designated for such 

application purpose by FSA, in the FSA 

county office in the participant’s control 

county office before the close of 

business on a date that will be 

announced by the Deputy 

Administrator. 

(b) Once signed by a participant, the 

application for benefits is considered to 

contain information and certifications of 

and pertaining to the participant 

regardless of who entered the 

information on the application. 

(c) The participant requesting benefits 

under this program 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 by 

FSA. For example, as specified in 

§ 760.818(f), the participant may be 

required to provide documentation to 

substantiate and validate quality 

standards and marketing contract prices. 

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 

under this program. Furnishing required 

information is voluntary; however 

without it, FSA is under no obligation 

to act on the application or approve 

benefits. Providing a false certification 

to the government is punishable by 

imprisonment, fines, and other 

penalties. 

(d) FSA may require the participant to 

submit any additional information it 

deems necessary to implement or 

determine any eligibility provision of 

this part. For example, as specified in 

§ 760.818(f), the participant may be 

required to provide documentation to 

substantiate and validate quality 

standards and marketing contract prices. 

(e) The application submitted in 

accordance with paragraph (a) of this 

section is not considered valid and 

complete for issuance of payment under 

this part unless FSA determines all the 

applicable eligibility provisions have 

been satisfied and the participant has 

submitted all of following completed 

forms: 

(1) If Item 16 on FSA–840 is answered 

‘‘YES,’’ FSA–840M, Crop Disaster 

Program for Multiple Crop—Same 

Acreage Certification; 

(2) CCC–502, Farm Operating Plan for 

Payment Eligibility; 

(3) CCC–526, Payment Eligibility 

Average Adjusted Gross Income 

Certification; 

(4) AD–1026, Highly Erodible Land 

Conservation (HELC) and Wetland 

Conservation Certification; and 

(5) FSA–578, Report of Acreage. 

(f) Application approval and payment 

by FSA does not relieve a participant 

from having to submit any form 

required, but not filed, according to 

paragraph (e) of this section. 

§ 760.805 Limitations on payments and 

other benefits. 

(a) A participant may receive benefits 

for crop losses for only one of the 2005, 

2006, or 2007 crop years as specified 

under this part. 

(b) Payments will not be made under 

this part for grazing losses. 

(c) Payments determined to be issued 

are considered due and payable not later 

than 60 days after a participant’s 

application is completed with all 

information necessary for FSA to 

determine producer eligibility for 

benefits. 

(d) FSA may divide and classify crops 

based on loss susceptibility, yield, and 

other factors. 

(e) No person, as defined by part 1400 

subpart B of this title, may receive more 

than a total of $80,000 in disaster 

benefits under this part. In applying the 


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$80,000 per person payment limitation, 

regardless of whether 2005, 2006, or 

2007 crop year benefits are at issue or 

sought, the most restrictive ‘‘person’’

determination for the participant in the 

years 2005, 2006, and 2007, will be used 

to limit benefits. 

(f) No participant may receive disaster 

benefits under this part in an amount 

that exceeds 95 percent of the value of 

the expected production for the relevant 

period as determined by FSA. 

Accordingly, the sum of the value of the 

crop not lost, if any; the disaster 

payment received under this part; and 

any crop insurance payment or 

payments received under the NAP for 

losses to the same crop, cannot exceed 

95 percent of what the crop’s value 

would have been if there had been no 

loss. 

(g) An individual or entity whose 

adjusted gross income is in excess of 

$2.5 million, as defined by and 

determined under part 1400 subpart G 

of this title, is not eligible to receive 

disaster benefits under this part. 

(h) Any participant in a county 

eligible for either of the following 

programs must complete a duplicate 

benefits certification. If the participant 

received a payment authorized by either 

of the following, the amount of that 

payment will be reduced from the 

calculated 2005–2007 CDP payment: 

(1) The Hurricane Indemnity Program 

(subpart B of this part); 

(2) The Hurricane Disaster Programs 

(subparts D, E, F, and G of part 1416 of 

this title); 

(3) The 2005 Louisiana Sugarcane 

Hurricane Disaster Assistance Program; 

or 

(4) The 2005 Crop Florida Sugarcane 

Disaster Program. 

§ 760.806 Crop eligibility requirements. 

(a) A participant on a farm is eligible 

for assistance under this section with 

respect to losses to an insurable 

commodity or NAP if the participant: 

(1) In the case of an insurable 

commodity, obtained a policy or plan of 

insurance under the Federal Crop 

Insurance Act for the crop incurring the 

losses; or 

(2) In the case of a NAP covered crop, 

filed the required paperwork and paid 

the administrative fee by the applicable 

filing deadline, for the noninsurable 

commodity under section 196 of the 

Federal Agriculture Improvement and 

Reform Act of 1996 for the crop 

incurring the losses. 

(b) The reasons a participant either 

elected not to have coverage or did not 

have coverage mentioned in paragraphs 

(a)(1) or (2) of this section are not 

relevant to the determination of the 

participant’s ineligibility under this 

section. In addition, such reasons for 

not having crop insurance coverage 

have no bearing for consideration under 

part 718, subpart D of this chapter. 

§ 760.807 Miscellaneous provisions. 

(a) A person is not eligible to receive 

disaster assistance under this part if it 

is determined by FSA that the person 

has: 

(1) Adopted any scheme or other 

device that tends to defeat the purpose 

of this part; 

(2) Made any fraudulent 

representation; 

(3) Misrepresented any fact affecting a 

program determination; 

(4) Is ineligible under § 1400.5 of this 

title; or 

(5) Does not have entitlement to an 

ownership share of the crop. 

(i) Growers growing eligible crops 

under contract for crop owners are not 

eligible unless the grower can be 

determined to have a share of the crop. 

(ii) Any verbal or written contract that 

precludes the grower from having an 

ownership share renders the grower 

ineligible for benefits under this part. 

(b) A person ineligible under 

§ 1437.15(c) of this title for any year is 

likewise ineligible for benefits under 

this part for that year or years. 

(c) A person ineligible under 

§ 400.458 of this title for any year is 

likewise ineligible for benefits under 

this part for that year or years. 

(d) All persons with a financial 

interest in the operation receiving 

benefits under this part are jointly and 

severally liable for any refund, 

including related charges, which is 

determined to be due FSA for any 

reason. 

(e) In the event that any request for 

assistance or payment under this part 

resulted from erroneous information or 

a miscalculation, the assistance or 

payment will be recalculated and any 

excess refunded to FSA with interest to 

be calculated from the date of the 

disbursement to the producer. 

(f) The liability of anyone for any 

penalty or sanction under or in 

connection with this part, or for any 

refund to FSA or related charge is in 

addition to any other liability of such 

person under any civil or criminal fraud 

statute or any other provision of law 

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

286, 287, 371, 641, 651, 1001, and 1014; 

15 U.S.C. 714; and 31 U.S.C. 3729. 

(g) The regulations in parts 11 and 

780 of this title apply to determinations 

under this part. 

(h) Any payment to any person will 

be made without regard to questions of 

title under State law and without regard 

to any claim or lien against the crop, or 

its proceeds. 

(i) For the purposes of the effect of 

lien on eligibility for Federal programs 

(28 U.S.C. 3201(e)), FSA waives the 

restriction on receipt of funds or 

benefits under this program but only as 

to beneficiaries who, as a condition of 

such waiver, agree to apply the benefits 

received under this part to reduce the 

amount of the judgment lien. 

(j) Under this program, participants 

are either eligible or ineligible. 

Participants in general, do not render 

performance or need to comply. They 

either suffered eligible losses or they did 

not. Accordingly, the provisions of 

§ 718.304 of this chapter do not apply to 

this part. 

§ 760.808 General provisions. 

(a) For calculations of loss, the 

participant’s existing unit structure will 

be used as the basis for the calculation 

established in accordance with: 

(1) For insured crops, part 457 of this 

title; or 

(2) For NAP covered crops, part 1437 

of this title. 

(b) County average yield for loss 

calculations will be the average of the 

2001 through 2005 official county yields 

established by FSA, excluding the years 

with the highest and lowest yields, 

respectively. 

(c) County committees will assign 

production or reduce the historic yield 

when the county committee determines: 

(1) An acceptable appraisal or record 

of harvested production does not exist; 

(2) The loss is due to an ineligible 

cause of loss or practices, soil type, 

climate, or other environmental factors 

that cause lower yields than those upon 

which the historic yield is based; 

(3) The participant has a contract 

providing a guaranteed payment for all 

or a portion of the crop; or 

(4) The crop was planted beyond the 

normal planting period for the crop. 

(d) The county committee will 

establish a maximum average loss level 

that reflects the amount of production 

producers would have produced if not 

for the eligible damaging weather or 

related conditions in the area or county 

for the same crop. The maximum 

average loss level for the county will be 

expressed as either a percent of loss or 

yield per acre. The maximum average 

loss level will apply when: 

(1) Unharvested acreage has not been 

appraised by FSA, or a company 

reinsured by FCIC; or 

(2) Acceptable production records for 

harvested acres are not available from 

any source. 

(e) Assignment of production or 

reduction in yield will apply for 


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practices that result in lower yields than 

those for which the historic yield is 

based. 

§ 760.809 Eligible damaging conditions. 

(a) Except as provided in paragraphs 

(b) and (c) of this section, to be eligible 

for benefits under this part the loss of 

the crop, or reduction in quality, or 

prevented planting must be due to 

damaging weather or related conditions 

as defined in § 760.802. 

(b) Benefits are not available under 

this part for any losses in quantity or 

quality, or prevented planting due to: 

(1) Poor farming practices; 

(2) Poor management decisions; or 

(3) Drifting herbicides. 

(c) With the exception of paragraph 

(d) of this section, in all cases, the 

eligible damaging condition must have 

directly impacted the specific crop or 

crop acreage during its planting or 

growing period. 

(d) If FSA has determined that there 

has been an eligible loss of surface 

irrigation water due to drought and such 

loss of surface irrigation water impacts 

eligible crop acreage, FSA may approve 

assistance to the extent permitted by 

section 760.814. 

§ 760.810 Qualifying 2005, 2006, or 2007 

quantity crop losses. 

(a) To receive benefits under this part, 

the county committee must determine 

that because of eligible damaging 

weather or related condition specifically 

impacting the crop or crop acreage, the 

participant with respect to the 2005, 

2006, or 2007 crop: 

(1) Was prevented from planting a 

crop; 

(2) Sustained a loss in excess of 35 

percent of the expected production of a 

crop; or 

(3) Sustained a loss in excess of 35 

percent of the value for value loss crops. 

(b) Qualifying losses under this part 

do not include losses: 

(1) For the 2007 crop, those acres 

planted, or in the case of prevented 

planting, would have been planted, on 

or after February 28, 2007; 

(2) That are determined by FSA to be 

the result of poor management 

decisions, poor farming practices, or 

drifting herbicides; 

(3) That are the result of the failure of 

the participant to re-seed or replant the 

same crop in the county where it is 

customary to re-seed or replant after a 

loss; 

(4) That are not as a result of a 

damaging weather or a weather related 

condition specifically impacting the 

crop or crop acreage; 

(5) To crops not intended for harvest 

in crop year 2005, 2006, or 2007; 

(6) Of by-products resulting from 

processing or harvesting a crop, such as 

cottonseed, peanut shells, wheat, or oat 

straw; 

(7) To home gardens; 

(8) That are a result of water 

contained or released by any 

governmental, public, or private dam or 

reservoir project if an easement exists 

on the acreage affected for the 

containment or release of the water; or 

(9) If losses could be attributed to 

conditions occurring outside of the 

applicable crop year growing season. 

(c) Qualifying losses under this part 

for nursery stock will not include losses: 

(1) For the 2007 crop, that nursery 

inventory acquired on or after February 

28, 2007; 

(2) Caused by a failure of power 

supply or brownouts; 

(3) 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; 

(4) Caused by fire unless directly 

related to an eligible natural disaster; 

(5) Affecting crops where weeds and 

other forms of undergrowth in the 

vicinity of the nursery stock have not 

been controlled; or 

(6) Caused by the collapse or failure 

of buildings or structures. 

(d) Qualifying losses under this part 

for honey, where the honey production 

by colonies or bees was diminished, 

will not include losses: 

(1) For the 2007 crop, for production 

from those bees acquired on or after 

February 28, 2007; 

(2) Where the inability to extract was 

due to the unavailability of equipment, 

the collapse or failure of equipment, or 

apparatus used in the honey operation; 

(3) Resulting from storage of honey 

after harvest; 

(4) To honey production because of 

bee feeding; 

(5) Caused by the application of 

chemicals; 

(6) Caused by theft, fire, or vandalism; 

(7) Caused by the movement of bees 

by the producer or any other person; or 

(8) Due to disease or pest infestation 

of the colonies. 

(e) Qualifying losses for other value 

loss crops, except nursery, will not 

include losses for the 2007 crop that 

were acquired on or after February 28, 

2007. 

(f) Loss calculations will take into 

account other conditions and 

adjustments provided for in this part. 

§ 760.811 Rates and yields; calculating 

payments. 

(a)(1) Payments made under this part 

to a participant for a loss of quantity on 

a unit with respect to yield-based crops 

are determined by multiplying the 

average market price times 42 percent, 

times the loss of production which 

exceeds 35 percent of the expected 

production, as determined by FSA, of 

the unit. 

(2) Payments made under this part to 

a participant for a quantity loss on a 

unit with respect to value-based crops 

are determined by multiplying the 

payment rate established for the crop by 

FSA times the loss of value that exceeds 

35 percent of the expected production 

value, as determined by FSA, of the 

unit. 

(3) As determined by FSA, additional 

quality loss payments may be made 

using a 25 percent quality loss 

threshold. The quality loss threshold is 

determined according to § 760.817. 

(b) Payment rates for the 2005, 2006, 

or 2007 year crop losses will be 42 

percent of the average market price. 

(c) Separate payment rates and yields 

for the same crop may be established by 

the State committee as authorized by the 

Deputy Administrator, when there is 

supporting data from NASS or other 

sources approved by FSA that show 

there is a significant difference in yield 

or value based on a distinct and separate 

end use of the crop. Despite potential 

differences in yield or values, separate 

rates or yields will not be established for 

crops with different cultural practices, 

such as those grown organically or 

hydroponically. 

(d) Production from all end uses of a 

multi-use crop or all secondary uses for 

multiple market crops will be calculated 

separately and summarized together. 

(e) Each eligible participant’s share of 

a disaster payment will be 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 assistance under this part. 

(f) When calculating a payment for a 

unit loss: 

(1) An unharvested payment factor 

will be applied to crop acreage planted 

but not harvested; 

(2) A prevented planting factor will be 

applied to any prevented planted 

acreage eligible for payment; and 

(3) Unharvested payment factors may 

be adjusted if costs normally associated 

with growing the crop are not incurred. 

§ 760.812 Production losses; participant 

responsibility. 

(a) Where available and determined 

accurate by FSA, RMA loss records will 

be used for insured crops. 


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(b) If RMA loss records are not 

available, or if the FSA county 

committee determines the RMA loss 

records are inaccurate or incomplete, or 

if the FSA county committee makes 

inquiry, participants are responsible for: 

(1) Retaining or providing, when 

required, the best verifiable or reliable 

production records available for the 

crop; 

(2) Summarizing all the production 

evidence; 

(3) Accounting for the total amount of 

unit production for the crop, whether or 

not records reflect this production; 

(4) Providing the information in a 

manner that can be easily understood by 

the county committee; and 

(5) Providing supporting 

documentation if the county committee 

has reason to question the damaging 

weather event or question whether all 

production has been accounted for. 

(c) In determining production under 

this section, the participant must supply 

verifiable or reliable production records 

to substantiate production to the county 

committee. If the eligible crop was sold 

or otherwise disposed of through 

commercial channels, production 

records include: commercial receipts; 

settlement sheets; warehouse ledger 

sheets; load summaries; or appraisal 

information from a loss adjuster 

acceptable to FSA. If the eligible crop 

was farm-stored, sold, fed to livestock, 

or disposed of in means other than 

commercial channels, production 

records for these purposes include: 

truck scale tickets; appraisal 

information from a loss adjuster 

acceptable to FSA; contemporaneous 

diaries; or other documentary evidence, 

such as contemporaneous 

measurements. 

(d) Participants must provide all 

records for any production of a crop that 

is grown with an arrangement, 

agreement, or contract for guaranteed 

payment. 

§ 760.813 Determination of production. 

(a) Production under this part 

includes all harvested production, 

unharvested appraised production, and 

assigned production for the total 

planted acreage of the crop on the unit. 

(b) The harvested production of 

eligible crop acreage harvested more 

than once in a crop year includes the 

total harvested production from all 

these harvests. 

(c) If a crop is appraised and 

subsequently harvested as the intended 

use, the actual harvested production 

must be taken into account to determine 

benefits. FSA will analyze and 

determine whether a participant’s 

evidence of actual production 

represents all that could or would have 

been harvested. 

(d) For all crops eligible for loan 

deficiency payments or marketing 

assistance loans with an intended use of 

grain but harvested as silage, ensilage, 

cobbage, hay, cracked, rolled, or 

crimped, production will be adjusted 

based on a whole grain equivalent as 

established by FSA. 

(e) For crops with an established yield 

and market price for multiple intended 

uses, a value will be calculated by FSA 

with respect to the intended use or uses 

for disaster purposes based on historical 

production and acreage evidence 

provided by the participant and FSA 

will determine the eligible acres for 

each use. 

(f) For crops sold in a market that is 

not a recognized market for the crop 

with no established county average 

yield and average market price, 42 

percent of the salvage value received 

will be deducted from the disaster 

payment. 

(g) 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. 

(h) Production that is commingled 

between units 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 unit by FSA. 

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 county 

committee; or 

(3) Had the current year’s production 

appraised in a manner acceptable to the 

county committee. 

(i) The county committee will assign 

production for the unit when the 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 

part, 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; 

(4) The participant has a contract to 

receive a guaranteed payment for all or 

a portion of the crop; 

(5) A crop was late-planted; 

(6) Unharvested acreage was not 

timely appraised; or 

(7) Other appropriate causes exist for 

such assignment as determined by the 

Deputy Administrator. 

(j) For peanuts, the actual production 

is all peanuts harvested for nuts, 

regardless of their disposition or use, as 

adjusted for low quality. 

(k) For tobacco, the actual production 

is the sum of the tobacco: marketed or 

available to be marketed; destroyed after 

harvest; and produced but unharvested, 

as determined by an appraisal. 

§ 760.814 Calculation of acreage for crop 

losses other than prevented planted. 

(a) Payment acreage of a crop is 

limited to the lesser of insured acreage 

or NAP covered acreage of the crop, as 

applicable, or actual acreage of the crop 

planted for harvest. 

(b) In cases where there is a repeat 

crop or a multiple planted crop in more 

than one planting period, or if there is 

multiple cropped acreage meeting 

criteria established in paragraph (c) or 

(d) of this section, each of these crops 

may be considered separate crops if the 

county committee determines that all of 

the following conditions are met: 

(1) Were planted with the intent to 

harvest; 

(2) Were planted within the normal 

planting period for that crop; 

(3) Meet all other eligibility 

provisions of this part including good 

farming practices; and 

(4) Could reach maturity if each 

planting was harvested or would have 

been harvested. 

(c) In cases where there is multiplecropped acreage, each crop may be 

eligible for disaster assistance separately 

if both of the following conditions are 

met: 

(1) The specific crops are approved by 

the State committee as eligible multiplecropping practices in accordance with 

procedures approved by the Deputy 

Administrator and separately meet all 

requirements, including insurance or 

NAP requirements ; and 

(2) The farm containing the multiplecropped acreage has a history of 

successful multiple cropping more than 

one crop on the same acreage in the 

same crop year, in the year previous to 

the disaster, or at least 2 of the 4 crop 


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years immediately preceding the 

disaster crop year based on timely filed 

crop acreage reports. 

(d) A participant with multiplecropped acreage not meeting the criteria 

in paragraph (c) of this section may be 

eligible for disaster assistance on more 

than one crop if the participant has 

verifiable records establishing a history 

of carrying out a successful multiplecropping practice on the specific crops 

for which assistance is requested. All 

required records acceptable to FSA as 

determined by the Deputy 

Administrator must be provided before 

payments are issued. 

(e) A participant with multiplecropped acreage not meeting the criteria 

in paragraphs (c) or (d) of this section 

must select the crop for which 

assistance will be requested. If more 

than one participant has an interest in 

the multiple cropped acreage, all 

participants must agree to the crop 

designated for payment by the end of 

the application period or no payment 

will be approved for any crop on the 

multiple-cropped acreage. 

(f) Benefits under this part apply to 

irrigated crops where, in cases 

determined by the Deputy 

Administrator, acreage was affected by a 

lack of surface irrigation water due to 

drought or contamination of ground 

water or surface irrigation water due to 

saltwater intrusion. In no case is a loss 

of ground water, for any reason, an 

eligible cause of loss. 

§ 760.815 Calculation of prevented planted 

acreage. 

(a) When determining losses under 

this part, prevented planted acreage will 

be considered separately from planted 

acreage of the same crop. 

(b) For insured crops, or NAP covered 

crops, as applicable, disaster payments 

under this part for prevented planted 

acreage will not be made unless RMA or 

FSA, as applicable, documentation 

indicates that the eligible participant 

received a prevented planting payment 

under either NAP or the RMAadministered program. 

(c) The participant must prove, to the 

satisfaction of the county committee, an 

intent to plant the crop and that such 

crop could not be planted because of an 

eligible disaster. The county committee 

must be able to determine the 

participant was prevented from planting 

the crop by an eligible disaster that: 

(1) Prevented other producers from 

planting on acreage with similar 

characteristics in the surrounding area; 

(2) Occurred after the previous 

planting period for the crop; and 

(3) Unless otherwise approved by the 

Deputy Administrator, began no earlier 

than the planting season for that crop. 

(d) Prevented planted disaster benefits 

under this part do not apply to: 

(1) Acreage not insured or NAP 

covered; 

(2) Any acreage on which a crop other 

than a cover crop was harvested, hayed, 

or grazed during the crop year; 

(3) Any acreage for which a cash lease 

payment is received for the use of the 

acreage the same crop year, unless the 

county committee determines the lease 

was for haying and grazing rights only 

and was not a lease for use of the land; 

(4) Acreage for which the participant 

or any other person received a 

prevented planted payment for any crop 

for the same acreage, excluding share 

arrangements; 

(5) Acreage for which the participant 

cannot provide verifiable proof to the 

county committee that inputs such as 

seed, chemicals, and fertilizer were 

available to plant and produce a crop 

with the expectation of producing at 

least a normal yield; and 

(6) Any other acreage for which, for 

whatever reason, there is cause to 

question whether the crop could have 

been planted for a successful and timely 

harvest, or for which prevented planting 

credit is not allowed under the 

provisions of this part. 

(e) Prevented planting payments are 

not provided on acreage that had either 

a previous or subsequent crop planted 

in the same crop year on the acreage, 

unless the county committee determines 

that all of the following conditions are 

met: 

(1) There is an established practice of 

planting two or more crops for harvest 

on the same acreage in the same crop 

year; 

(2) Both crops could have reached 

maturity if each planting was harvested 

or would have been harvested; 

(3) Both the initial and subsequent 

planted crops were planted or prevented 

planting within the normal planting 

period for that crop; 

(4) Both the initial and subsequent 

planted crops meet all other eligibility 

provisions of this part including good 

farming practices; and 

(5) The specific crops meet the 

eligibility criteria for a separate crop 

designation as a repeat or approved 

multiple cropping practice set out in 

§ 760.814. 

(f)(1) Disaster benefits under this part 

do not apply to crops where the 

prevented planted acreage was affected 

by a disaster that was caused by drought 

unless on the final planting date or the 

late planting period for non-irrigated 

acreage, the area that was prevented 

from being planted had insufficient soil 

moisture for germination of seed and 

progress toward crop maturity because 

of a prolonged period of dry weather; 

(2) Verifiable information collected by 

sources whose business or purpose is to 

record weather conditions, including, 

but not limited to, local weather 

reporting stations of the U.S. National 

Weather Service. 

(g) Prevented planting benefits under 

this part apply to irrigated crops where 

adequate irrigation facilities were in 

place before the eligible disaster and the 

acreage was prevented from being 

planted due to a lack of water resulting 

from drought conditions or 

contamination by saltwater intrusion of 

an irrigation supply resulting from 

drought conditions. 

(h) For NAP covered crops, prevented 

planting provisions apply according to 

part 718 of this chapter. 

(i) Late-filed crop acreage reports for 

prevented planted acreage in previous 

years are not acceptable for CDP 

purposes. 

§ 760.816 Value loss crops. 

(a) Notwithstanding any other 

provisions of this part, this section 

applies to value loss crops and tropical 

crops. Unless otherwise specified, all 

the eligibility provisions of part 1437 of 

this title apply to value loss crops and 

tropical crops under this part. 

(b) For value loss crops, benefits 

under this part are calculated based on 

the loss of value at the time of the 

damaging weather or related condition, 

as determined by FSA. 

(c) For tropical crops: 

(1) CDP benefits for 2005 are 

calculated according to general 

provisions of part 1437, but not subpart 

F, of this title. 

(2) CDP benefits for 2006 and 2007 are 

calculated according to part 1437, 

subpart F of this title. 

§ 760.817 Quality losses for 2005, 2006, 

and 2007 crops. 

(a) Subject to other provisions of this 

part, assistance will be made available 

to participants determined eligible 

under this section for crop quality losses 

of 25 percent or greater of the value that 

all affected production of the crop 

would have had if the crop had not 

suffered a quality loss. 

(b) The amount of payment for a 

quality loss will be equal to 65 percent 

of the quantity of the crop affected by 

the quality loss, not to exceed expected 

production based on harvested acres, 

multiplied by 42 percent of the per unit 

average market value based on 

percentage of quality loss for the crop as 

determined by the Deputy 

Administrator. 


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(c) This section applies to all crops 

eligible for 2005, 2006, and 2007 crop 

disaster assistance under this part, with 

the exceptions of value loss crops, 

honey, and maple sap, and applies to 

crop production that has a reduced 

economic value due to the reduction in 

quality. 

(d) Participants may not be 

compensated under this section to the 

extent that such participants have 

received assistance under other 

provisions of this part, attributable in 

whole or in part to diminished quality. 

§ 760.818 Marketing contracts. 

(a) A marketing contract must meet all 

of the conditions outlined in paragraphs 

(b), (c), and (d) of this section. 

(b) A marketing contract, at a 

minimum, must meet all of the 

following conditions: 

(1) Be a legal contract in the State 

where executed; 

(2) Specify the commodity under 

contract; 

(3) Specify crop year; 

(4) Be signed by both the participant, 

or legal representative, and the 

purchaser of the specified commodity; 

(5) Include a commitment to deliver 

the contracted quantity; 

(6) Include a commitment to purchase 

the contracted quantity that meets 

specified minimum quality standards 

and other criteria as specified; 

(7) Define a determinable quantity by 

containing either a: 

(i) Specified production quantity or 

(ii) A specified acreage for which 

production quantity can be calculated; 

(8) Define a determinable price by 

containing either a: 

(i) Specified price or 

(ii) Method to determine such a price; 

(9) Contain a relationship between the 

price and the quality using either: 

(i) Specified quality standards or 

(ii) A method to determine such 

quality standards from published third 

party data; and 

(10) Have been executed within 10 

days after: 

(i) End of insurance period for insured 

crops or 

(ii) Normal harvest date for NAP 

covered crops as determined by FSA. 

(c) The purchaser of the commodity 

specified in the marketing contract must 

meet at least one of the following: 

(1) Be a licensed commodity 

warehouseman; 

(2) Be a business enterprise regularly 

engaged in the processing of a 

commodity, that possesses all licenses 

and permits for marketing the 

commodity required by the State in 

which it operates, and that possesses or 

has contracted for facilities with enough 

equipment to accept and process the 

commodity within a reasonable amount 

of time after harvest; or 

(3) Is able to physically receive the 

harvested production. 

(d) In order for the commodity 

specified in the marketing contract to be 

considered sold pursuant to the 

marketing contract, the commodity must 

have been produced by the participant 

in the crop year specified in the 

contract, and at least one of the 

following conditions must be met: 

(1) Commodity was sold under the 

terms of the contract or 

(2) Participant attempted to deliver 

the commodity to the purchaser, but the 

commodity was rejected due to quality 

factors as specified in the contract. 

(e) The amount of payment for 

affected production, as determined in 

§ 760.817(b), sold pursuant to one or 

more marketing contracts will take into 

consideration the marketing contract 

price as determined by FSA. 

(f) County committees have the 

authority to require a participant to 

provide necessary documentation, 

which may include, but is not limited 

to, previous marketing contracts 

fulfilled, to substantiate and validate 

quality standards in paragraph (b)(9) of 

this section and marketing contract 

price received for the commodity for 

which crop quality loss assistance is 

requested. In cases where the county 

committee has reason to believe the 

participant lacks the capacity or history 

to fulfill the quality provisions of the 

marketing contract the county 

committee will require such 

documentation. 

§ 760.819 Misrepresentation, scheme, or 

device. 

(a) A person is ineligible to receive 

assistance under this part if it is 

determined that such person has: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of this 

program; 

(2) Made any fraudulent 

representation under this program; 

(3) Misrepresented any fact affecting a 

program or person determination; or 

(4) Has violated or been determined 

ineligible under § 1400.5 of this title. 

§ 760.820 Offsets, assignments, and debt 

settlement. 

(a) Except as provided in paragraph 

(b) of this section, any payment to any 

person will be made without regard to 

questions of title under State law and 

without regard to any claim or lien 

against the crop, or proceeds, in favor of 

the owner or any other creditor except 

agencies of the U.S. Government. The 

regulations governing offsets and 

withholdings found at part 1403 of this 

title apply to any payments made under 

this part. 

(b) Any participant entitled to any 

payment may assign any payments in 

accordance with regulations governing 

the assignment of payments found at 

part 1404 of this title. 

(c) A debt or claim may be settled 

according to part 792 of this chapter. 

§ 760.821 Compliance with highly erodible 

land and wetland conservation. 

(a) The highly erodible land and 

wetland conservation provisions of part 

12 of this title apply to the receipt of 

disaster assistance for 2005, 2006, and 

2007 crop losses made available under 

this authority. 

(b) Eligible participants must be in 

compliance with the highly erodible 

land and wetland conservation 

compliance provisions for the year for 

which financial assistance is requested. 

Subpart J—2005–2007 Livestock 

Indemnity Program 

§ 760.900 Administration. 

(a) The regulations in this subpart 

specify the terms and conditions 

applicable to the 2005–2007 Livestock 

Indemnity Program (2005–2007 LIP), 

which will be administered under the 

general supervision and direction of the 

Administrator, FSA. 

(b) FSA representatives do not have 

authority to modify or waive any of the 

provisions of the regulations of this 

subpart. 

(c) The State FSA committee will take 

any action required by the regulations of 

this subpart that the county FSA 

committee has not taken. The State FSA 

committee will also: 

(1) Correct, or require a county 

committee to correct, any action taken 

by such county committee that is not in 

accordance with the regulations of this 

subpart; or 

(2) Require a county committee to 

withhold taking any action that is not in 

accordance with this subpart. 

(d) No delegation to a State or county 

FSA committee will preclude the 

Deputy Administrator for Farm 

Programs from determining any 

question arising under the program or 

from reversing or modifying any 

determination made by a State or county 

FSA committee. 

§ 760.901 Applicability. 

(a) This subpart establishes the terms 

and conditions under which the 2005–

2007 LIP will be administered under 

Title IX of the U.S. Troop Readiness, 

Veterans’ Care, Katrina Recovery, and 

Iraq Accountability Appropriations Act, 


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2007 (Pub. L. 110–28) for eligible 

counties as specified in § 760.902(a). 

(b) Eligible livestock owners and 

contract growers will be compensated in 

accordance with § 760.909 for eligible 

livestock deaths that occurred in eligible 

counties as a direct result of an eligible 

disaster event. Drought is not an eligible 

disaster event except when anthrax, as 

a related condition that occurs as a 

result of drought, results in the death of 

eligible livestock. 

§ 760.902 Eligible counties and disaster 

periods. 

Counties are eligible for agricultural 

assistance under the 2005–2007 LIP if 

they received a timely Presidential 

designation, a timely Secretarial 

declaration, or a qualifying 

Administrator’s Physical Loss Notice 

(APLN) determination in a county 

otherwise the subject of a timely 

Presidential declaration, or are counties 

contiguous to such counties. 

Presidential designations and 

Secretarial declarations will be 

considered timely only if made after 

January 1, 2005, and before February 28, 

2007. Eligible counties, disaster events, 

and disaster periods are listed at http:// 

disaster.fsa.usda.gov. 

§ 760.903 Definitions. 

The following definitions apply to 

this subpart. The definitions in parts 

718 and 1400 of this title also apply, 

except where they conflict with the 

definitions in this section. 

Adult beef bull means a male beef 

bovine animal that was at least 2 years 

old and used for breeding purposes 

before it died. 

Adult beef cow means a female beef 

bovine animal that had delivered one or 

more offspring before dying. A first-time 

bred beef heifer is also considered an 

adult beef cow if it was pregnant at the 

time it died. 

Adult buffalo and beefalo bull means 

a male animal of those breeds that was 

at least 2 years old and used for 

breeding purposes before it died. 

Adult buffalo and beefalo cow means 

a female animal of those breeds that had 

delivered one or more offspring before 

dying. A first-time bred buffalo or 

beefalo heifer is also considered an 

adult buffalo or beefalo cow if it was 

pregnant at the time it died. 

Adult dairy bull means a male dairy 

breed bovine animal at least 2 years old 

used primarily for breeding dairy cows 

before it died. 

Adult dairy cow means a female 

bovine animal used for the purpose of 

providing milk for human consumption 

that had delivered one or more offspring 

before dying. A first-time bred dairy 

heifer is also considered an adult dairy 

cow if it was pregnant at the time it 

died. 

Agricultural operation means a 

farming operation. 

Application means the ‘‘2005–2007 

Livestock Indemnity Program’’ form. 

Application period means the date 

established by the Deputy Administrator 

for Farm Programs for participants to 

apply for program benefits. 

Buck means a male goat. 

Catfish means catfish grown as food 

for human consumption by a 

commercial operator on private property 

in water in a controlled environment. 

Commercial use means used in the 

operation of a business activity engaged 

in as a means of livelihood for profit by 

the eligible producer to apply for 

program benefits. 

Contract means, with respect to 

contracts for the handling of livestock, 

a written agreement between a livestock 

owner and another individual or entity 

setting the specific terms, conditions, 

and obligations of the parties involved 

regarding the production of livestock or 

livestock products. 

Controlled environment means an 

environment in which everything that 

can practicably be controlled by the 

participant with structures, facilities, 

and growing media (including, but not 

limited to, water and nutrients) and was 

in fact controlled by the participant at 

the time of the disaster. 

Crawfish means crawfish grown as 

food for human consumption by a 

commercial operator on private property 

in water in a controlled environment. 

Deputy Administrator means the 

Deputy Administrator for Farm 

Programs, Farm Service Agency, U.S. 

Department of Agriculture or the 

designee. 

Doe means a female goat. 

Equine animal means a domesticated 

horse, mule, or donkey. 

Ewe means a female sheep. 

Farming operation means a business 

enterprise engaged in producing 

agricultural products. 

Goat means a domesticated, ruminant 

mammal of the genus Capra, including 

Angora goats. Goats are further defined 

by sex (bucks and does) and age (kids). 

Kid means a goat less than 1 year old. 

Lamb means a sheep less than 1 year 

old. 

Livestock owner means one having 

legal ownership of the livestock for 

which benefits are being requested on 

the day such livestock died due to an 

eligible disaster. 

Non-adult beef cattle means a bovine 

that does not meet the definition of 

adult beef cow or bull. Non-adult beef 

cattle are further delineated by weight 

categories of less than 400 pounds, and 

400 pounds or more at the time they 

died. 

Non-adult buffalo or beefalo means an 

animal of those breeds that does not 

meet the definition of adult buffalo/ 

beefalo cow or bull. Non-adult buffalo 

or beefalo are further delineated by 

weight categories of less than 400 

pounds, and 400 pounds or more at the 

time of death. 

Non-adult dairy cattle means a bovine 

livestock, of a breed used for the 

purpose of providing milk for human 

consumption, that do not meet the 

definition of adult dairy cow or bull. 

Non-adult dairy cattle are further 

delineated by weight categories of less 

than 400 pounds, and 400 pounds or 

more at the time they died. 

Poultry means domesticated chickens, 

turkeys, ducks, and geese. Poultry are 

further delineated by sex, age, and 

purpose of production as determined by 

FSA. 

Ram means a male sheep. 

Sheep means a domesticated, 

ruminant mammal of the genus Ovis. 

Sheep are further defined by sex (rams 

and ewes) and age (lambs). 

Swine means a domesticated 

omnivorous pig, hog, and boar. Swine 

are further delineated by sex and weight 

as determined by FSA. 

§ 760.904 Limitations on payments and 

other benefits. 

(a) A participant may receive benefits 

for livestock losses for only one of the 

2005, 2006, or 2007 calendar years as 

specified under this part. 

(b) A ‘‘person’’ as determined under 

part 1400 of this title may receive no 

more than $80,000 under this subpart. 

In applying the $80,000 per person 

payment limitation, regardless of 

whether 2005, 2006, or 2007 calendar 

year benefits are at issue or sought, the 

most restrictive ‘‘person’’ determination 

for the participant in the years 2005, 

2006, and 2007, will be used to limit 

benefits. 

(c) The provisions of part 1400, 

subpart G, of this title relating to limits 

to payments for individuals or entities 

with certain levels of adjusted gross 

income apply to this program. 

(d) As a condition to receive benefits 

under this subpart, a participant must 

have been in compliance with the 

provisions of parts 12 and 718 of this 

title and must not otherwise be 

precluded from receiving benefits under 

any law. 

(e) An individual or entity determined 

to be a foreign person under part 1400 

of this title is not eligible to receive 

benefits under this subpart. 


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§ 760.905 Eligible owners and contract 

growers. 

(a) To be considered eligible, a 

livestock owner must have had legal 

ownership of the eligible livestock, as 

provided in § 760.906(a), on the day the 

livestock died. 

(b) To be considered eligible, a 

contract grower on the day the livestock 

died must have had: 

(1) A written agreement with the 

owner of eligible livestock setting the 

specific terms, conditions, and 

obligations of the parties involved 

regarding the production of livestock; 

and 

(2) Control of the eligible livestock, as 

provided in § 760.906(b), on the day the 

livestock died. 

§ 760.906 Eligible livestock. 

(a) To be considered eligible livestock 

for livestock owners, livestock must be 

adult or non-adult dairy cattle, beef 

cattle, buffalo, beefalo, catfish, crawfish, 

equine, sheep, goats, swine, poultry, 

deer, or reindeer and meet all the 

conditions in paragraph (c) of this 

section. 

(b) To be considered eligible livestock 

for contract growers, livestock must be 

poultry or swine as defined in § 760.903 

and meet all the conditions in paragraph 

(c) of this section. 

(c) To be considered eligible, livestock 

must meet all of the following 

conditions: 

(1) Died in an eligible county as a 

direct result of an eligible disaster event; 

(i) After January 1, 2005, but before 

February 28, 2007; 

(ii) No later than 60 calendar days 

from the ending date of the applicable 

disaster period, but before February 28, 

2007; and 

(iii) In the calendar year for which 

benefits are being requested. 

(2) The disaster event that caused the 

loss must be the same event for which 

a natural disaster was declared or 

designated. 

(3) Been maintained for commercial 

use as part of a farming operation on the 

day they died; and 

(4) Before dying, not have been 

produced or maintained for reasons 

other than commercial use as part of a 

farming operation, including, but not 

limited to, wild free roaming animals or 

animals used for recreational purposes, 

such as pleasure, hunting, roping, pets, 

or for show. 

(d) In those counties in § 760.902, the 

following types of animals owned by a 

livestock owner are eligible livestock: 

(1) Adult beef bulls; 

(2) Adult beef cows; 

(3) Adult buffalo or beefalo bulls; 

(4) Adult buffalo or beefalo cows; 

(5) Adult dairy bulls; 

(6) Adult dairy cows; 

(7) Catfish; 

(8) Chickens, broilers, pullets; 

(9) Chickens, chicks; 

(10) Chickens, layers, roasters; 

(11) Crawfish; 

(12) Deer; 

(13) Ducks; 

(14) Ducks, ducklings; 

(15) Equine; 

(16) Geese, goose; 

(17) Geese, gosling; 

(18) Goats, bucks; 

(19) Goats, does; 

(20) Goats, kids; 

(21) Non-adult beef cattle; 

(22) Non-adult buffalo/beefalo; 

(23) Non-adult dairy cattle; 

(24) Reindeer 

(25) Sheep, ewes; 

(26) Sheep, lambs; 

(27) Sheep, rams; 

(28) Swine, feeder pigs under 50 

pounds; 

(29) Swine, sows, boars, barrows, gilts 

50 to 150 pounds; 

(30) Swine, sows, boars, barrows, gilts 

over 150 pounds; 

(31) Turkeys, poults; and 

(32) Turkeys, toms, fryers, and 

roasters. 

(e) In those counties in § 760.902, the 

following types of animals are eligible 

livestock for contract growers: 

(1) Chickens, broilers, pullets; 

(2) Chickens, layers, roasters; 

(3) Geese, goose; 

(4) Swine, boars, sows; 

(5) Swine, feeder pigs; 

(6) Swine, lightweight barrows, gilts; 

(7) Swine, sows, boars, barrows, gilts; 

and 

(8) Turkeys, toms, fryers, and roasters. 

§ 760.907 Application process. 

(a) To apply for 2005–2007 LIP, 

submit a completed application to the 

administrative county FSA office that 

maintains the farm records for your 

agricultural operation, a copy of your 

grower contract, if you are a contract 

grower, and other supporting 

documents required for determining 

your eligibility as an applicant. 

Supporting documents must show: 

(1) Evidence of loss, 

(2) Current physical location of 

livestock in inventory, and 

(3) Physical location of claimed 

livestock at the time of death. 

(b) The application must be filed 

during the application period 

announced by the Deputy 

Administrator. 

(c) A minor child is eligible to apply 

for program benefits if all eligibility 

requirements are met and one of the 

following conditions exists: 

(1) The right of majority has been 

conferred upon the minor by court 

proceedings or 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 

a surety guarantees any loss incurred for 

which the minor would be liable had 

the minor been an adult. 

(d) The participant must provide 

adequate proof that the death of the 

eligible livestock occurred in an eligible 

county as a direct result of an eligible 

disaster event during the applicable 

disaster period. The quantity and kind 

of livestock that died as a direct result 

of the eligible disaster event may be 

documented by: purchase records; 

veterinarian records; bank or other loan 

papers; rendering truck receipts; Federal 

Emergency Management Agency 

records; National Guard records; written 

contracts; production records; Internal 

Revenue Service records; property tax 

records; private insurance documents; 

and other similar verifiable documents 

as determined by FSA. 

(e) Certification of livestock deaths by 

third parties may be accepted only if 

both the following conditions are met: 

(1) The livestock owner or livestock 

contract grower, as applicable, certifies 

in writing: 

(i) That there is no other 

documentation of death available; 

(ii) The number of livestock, by 

category determined by FSA, were in 

inventory at the time the applicable 

disaster event occurred; and 

(iii) Other details required for FSA to 

determine the certification acceptable; 

and 

(2) The third party provides their 

telephone number, address, and a 

written statement containing: 

(i) Specific details about their 

knowledge of the livestock deaths; 

(ii) Their affiliation with the livestock 

owner; 

(iii) The accuracy of the deaths 

claimed by the livestock owner; and 

(iv) Other details required by FSA to 

determine the certification acceptable. 

(f) Data furnished by the participant 

will be used to determine eligibility for 

program benefits. Furnishing the data is 

voluntary; however, without all 

required data program benefits will not 

be approved or provided. 

§ 760.908 Deceased individuals or 

dissolved entities. 

(a) Payments may be made for eligible 

losses suffered by an eligible participant 

who is now a deceased individual or is 

a dissolved entity if a representative, 

who currently has authority to enter 


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72878 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations 

into a contract, on behalf of the 

participant, signs the application for 

payment. 

(b) Legal documents showing proof of 

authority to sign for the deceased 

individual or dissolved entity must be 

provided. 

(c) If a participant is now a dissolved 

general partnership or joint venture, all 

members of the general partnership or 

joint venture at the time of dissolution 

or their duly authorized representatives 

must sign the application for payment. 

§ 760.909 Payment calculation. 

(a) Under this subpart separate 

payment rates are established for 

eligible livestock owners and eligible 

livestock contract growers in accordance 

with paragraphs (b) and (c) of this 

section. Payments for the 2005–2007 LIP 

are calculated by multiplying the 

national payment rate for each livestock 

category, as determined in paragraphs 

(b) and (c) of this section, by the number 

of eligible livestock in each category, as 

provided in § 760.906. Adjustments will 

be applied in accordance with 

paragraphs (d) and (e) of this section. 

(b) The 2005–2007 LIP national 

payment rate for eligible livestock 

owners is based on 26 percent of the 

average fair market value of the 

livestock. 

(c) The 2005–2007 LIP national 

payment rate for eligible livestock 

contract growers is based on 26 percent 

of the average income loss sustained by 

the contract grower with respect to the 

dead livestock. 

(d) The 2005 payment calculated 

under 2005–2007 LIP for eligible 

livestock owners will be reduced by the 

amount the participant received under: 

(1) The Livestock Indemnity Program 

(subpart E of this part); 

(2) The Aquaculture Grant Program 

(subpart G of this part); and 

(3) The Livestock Indemnity Program 

II (part 1416, subpart C of this title). 

(e) The 2005 payment calculated 

under 2005–2007 LIP for eligible 

livestock contract growers will be 

reduced by the amount the participant 

received: 

(1) Under the Livestock Indemnity 

Program (subpart E of this part); 

(2) For the loss of income from the 

dead livestock from the party who 

contracted with the producer to grow 

the livestock; and 

(3) Under the Livestock Indemnity 

Program II (part 1416, subpart C of this 

title). 

§ 760.910 Appeals. 

The appeal regulations set forth at 

parts 11 and 780 of this title apply to 

determinations made pursuant to this 

subpart. 

§ 760.911 Offsets, assignments, and debt 

settlement. 

(a) Any payment to any participant 

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 found at part 792 of this 

chapter apply to payments made under 

this subpart. 

(b) Any participant entitled to any 

payment may assign any payment in 

accordance with regulations governing 

the assignment of payments found at 

part 1404 of this title. 

§ 760.912 Records and inspections. 

Participants receiving payments 

under this subpart or any other person 

who furnishes information for the 

purposes of enabling such participant to 

receive a payment under this subpart 

must maintain any books, records, and 

accounts supporting any information so 

furnished for 3 years following the end 

of the year during which the application 

for payment was filed. Participants 

receiving payments or any other person 

who furnishes such information to FSA 

must allow authorized representatives 

of USDA and the General 

Accountability Office, during regular 

business hours, to inspect, examine, and 

make copies of such books or records, 

and to enter upon, inspect and verify all 

applicable livestock and acreage in 

which the participant has an interest for 

the purpose of confirming the accuracy 

of information provided by or for the 

participant. 

§ 760.913 Refunds; joint and several 

liability. 

In the event there is a failure to 

comply with any term, requirement, or 

condition for payment or assistance 

arising under this subpart, and if any 

refund of a payment to FSA will 

otherwise become due in connection 

with this subpart, all payments made in 

regard to such matter must be refunded 

to FSA together with interest and latepayment charges as provided for in part 

792 of this chapter. 

Signed in Washington, DC, December 18, 

2007. 

Teresa C. Lasseter, 

Administrator, Farm Service Agency. 

[FR Doc. 07–6153 Filed 12–19–07; 9:03 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Part 760 

RIN 0560–AH72 

2005–2007 Livestock Compensation 

and Catfish Grant Programs 

AGENCY: Farm Service Agency, USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes the Farm 

Service Agency (FSA) regulations for 

the 2007 Emergency Agricultural 

Assistance. The rule implements 

legislation that provides funds for 

agricultural disaster aid for eligible 

producers, specifically the continuation 

of the Livestock Compensation Program 

(LCP) and the Catfish Grant Program 

(CGP). The programs will provide 

financial assistance to eligible livestock 

and catfish producers in counties 

designated as a major disaster or 

emergency by the President or those 

declared a natural disaster by the 

Secretary of Agriculture. Counties 

designated disasters by the President 

may be eligible even though agricultural 

loss was not covered by the designation 

if there has been an FSA 

Administrator’s Physical Loss Notice 

covering such losses. The natural 

disaster declarations by the Secretary or 

designations by the President must have 

been issued between January 1, 2005, 

and February 28, 2007; that is after 

January 1, 2005, and before February 28, 

2007. Counties contiguous to such 

counties will also be eligible. These 

programs are designed to provide 

financial assistance to producers who 

suffered feed losses due to natural 

disasters in the eligible counties. 

DATES: This rule is effective December 

19, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Salomon Ramirez, Director, Production, 

Emergencies, and Compliance Division; 

Farm Service Agency; United States 

Department of Agriculture, STOP 0517, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0517; telephone 

(202) 720–7641; e-mail 

salomon.ramirez@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule implements certain 

agricultural assistance provisions of the 

U.S. Troop Readiness, Veterans’ Care, 

Katrina Recovery, and Iraq 

Accountability Appropriations Act, 

2007 (Public Law 110–28) (the 2007 

Emergency Supplemental). The 2007 

Emergency Supplemental authorizes the 


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