Petition for Writ of Certiorari — M&T Farms, Petitioner v. Federal Crop Insurance Corporation, et al.

Supreme Court briefNov 8, 2024

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APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the Ninth

Circuit (June 4, 2024) ......................................... 1a

Order on Cross-Motions for Summary Judgment,

U.S. District Court for the Northern District

of California (March 9, 2023) ........................... 17a

REHEARING ORDER

Order Denying Petition for Rehearing,

U.S. Court of Appeals for the Ninth Circuit

(August 13, 2024) ............................................. 47a

STATUTORY AND REGULATORY PROVISIONS

5 U.S.C.A. § 706 ...................................................... 49a

7 U.S.C.A. § 1502 .................................................... 50a

7 U.S.C.A. § 1503 .................................................... 57a

7 U.S.C.A. § 1506 .................................................... 57a

7 C.F.R. § 400.767 ................................................... 66a

APPENDIX TABLE OF CONTENTS (Cont.)

OTHER DOCUMENTS

FCIC Response to M&T Farms Request for

Policy Interpretation

(September 15, 2020)........................................ 71a

FCIC Whole-Farm Revenue Protection Pilot

Policy (August 2016)......................................... 78a

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

(JUNE 4, 2024)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

M&T FARMS, a California General Partnership,

Plaintiff-Appellant,

v.

FEDERAL CROP INSURANCE OPINION

CORPORATION, a wholly-owned government

corporation that administers the Federal Crop

Insurance Program; RISK MANAGEMENT

AGENCY, the United States Department of

Agriculture’s agency that manages the FCIC and

administers federal crop insurance policies,

Defendants Appellees.

________________________

No. 23-15837

D.C. No. 5:21-cv-09590-SVK

Appeal from the United States District Court

for the Northern District of California

Susan G. Van Keulen, Magistrate Judge, Presiding*

* The parties consented to proceed before a magistrate judge.

See 28 U.S.C. § 636(c).

App.2a

Before: Milan D. SMITH, JR., Andrew D. HURWITZ,

and Anthony D. JOHNSTONE, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

In this Administrative Procedure Act (“APA”)

action, M&T Farms challenges an official interpretation

of an insurance policy by the Federal Crop Insurance

Corporation (“FCIC”).1 The district court granted

summary judgment to the FCIC, and we affirm.

BACKGROUND

M&T Farms is a California general partnership

between two farmers, Paul Missou and Gary Tognetti.

M&T Farms and a third farmer, Ed Tognetti, sell

farm commodities through a storefront, B&T Farms,

which owns their business name and goodwill. B&T

Farms is also a California general partnership, in

which two partners, M&T Farms and Ed Tognetti,

hold 65% and 35% interests, respectively.

M&T Farms purchased crop insurance for the

2017 crop year under the Whole-Farm Revenue Protection Pilot Policy (“WFRP Policy”) from Producers

1 The FCIC is a government corporation within the Department

of Agriculture created “[t]o carry out the purposes” of the Federal Crop Insurance Act (“FCIA”). 7 U.S.C. § 1503; 31 U.S.C.

§ 9101(3)(D). The Risk Management Agency (“RMA”) supervises

the FCIC and administers FCIA programs. 7 U.S.C. § 6933(a),

(b)(1)-(3). “For all relevant and practical purposes, the RMA and

the FCIC are one and the same.” William J. Mouren Farming,

Inc. v. Great Am. Ins. Co., No. 05-cv-0031, 2005 WL 2064129, at

*2 (E.D. Cal. Aug. 24, 2005). We therefore refer to the two

defendant agencies in this opinion collectively as “the FCIC.”

App.3a

Agriculture Insurance Company (“ProAg”), an insurer

approved and reinsured by the FCIC. M&T Farms

later filed a claim seeking the full policy amount,

$1,991,876. In January 2019, ProAg cancelled the

policy and denied the claim, stating that M&T Farms

was not a “qualifying person” under section 3(a)(4) of

the WFRP Policy, which provides:

The [IRS] Schedule F, or Substitute Schedule

F, must cover 100 percent of your farm

operation. (A tax entity which reports a

fractional share of farming activity conducted

by a partnership, corporation or any other

“joint venture” does not qualify for WFRP

coverage on the fractional share of farming

activity).

ProAg denied the claim because M&T Farms “reports

a fractional share of farming activity conducted by a

partnership”—B&T Farms.

M&T Farms then instituted arbitration against

ProAg. The arbitrator authorized the parties to seek

an interpretation of the WFRP Policy from the FCIC,

as allowed by federal law. See 7 U.S.C. § 1506(r); 7

C.F.R. § 400.767. In December 2019, M&T Farms

and ProAg each requested an interpretation of section

3(a)(4).2

2 M&T Farms and ProAg also requested an interpretation of

section 3(e) of the WFRP Policy and paragraph 21(1)(d) of the

WFRP Handbook. Section 3(e) states: “Originating passthrough entities may insure the allowable revenue from

commodities produced by the farm operation under WFRP.

Owners of a pass-through entity that are not the originating

entity may not insure pass-through revenue or loss under

WFRP.” Paragraph 21(1)(d) of the WFRP Handbook largely

restates section 3(a)(4) of the WFRP Policy but also states: “a

App.4a

In March 2020, the FCIC responded to the

requests, stating that the WFRP Policy “does not

allow a partner whom [sic] files taxes on a fractional

share of farming activity conducted by a partnership

[to be] eligible for WFRP coverage for the fractional

share of that farming activity.”3

In August 2020, M&T Farms submitted another

request for interpretation, providing this hypothetical,

in which Entity A corresponds to B&T Farms and

Entity B to M&T Farms:

Entity A is a general partnership made up

of Entity B (a partnership) and individual

C.

Entity A is not a “farm operation” because it

reports no farm activity to the IRS in the

form o[f] revenues or expenses. Moreover,

Entity A is not an “originating entity”

because it physically produces no commodities. Instead, Entity A is a store-front that

holds the business name and goodwill for

Entity B and individual C.

Entity B is a “single farm operation” because

it reports 100 percent of its farm activity to

the IRS in the form of revenue and expenses

on its tax forms under a single taxpayer

tax entity may still qualify for WFRP coverage on a fractional

share of a commodity in which they have an insurable interest.”

Those provisions are not at issue in this litigation.

3 In July 2020, M&T Farms submitted a second request for

interpretation, which the FCIC rejected because it contained

“specific facts” about the requestor’s case in violation of 7 C.F.R.

§ 400.767(a)(8).

App.5a

number. Entity B is also an “originating

entity” because it actually physically produces

its percentage share of the commodities

grown nominally under the name of Entity

A.

Individual C is likewise a “single farm operation” because it reports 100 percent of its

farm activity to the IRS in the form o[f]

revenue and expenses on its tax forms

under a single taxpayer number. Individual

C also actually physically produces its

percentage share of the commodities grown

nominally under the name of Entity A.

M&T Farms then suggested that in this scenario,

“Entity A is not a ‘farm operation’ and has no

farming activity,” and that Entity B therefore qualifies

for WFRP coverage under section 3(a)(4).

The FCIC responded in September 2020, stating

that “[a] farm operation must meet eligibility requirements of both sections 3(a)(4) and 3(e) for coverage

under WFRP.” Addressing M&T Farms’ hypothetical,

it said:

Using the example from the requestor’s

interpretation, Entity A is a partnership that

includes Entity B and individual C. Entity

A, holding the business name and goodwill

of Entity B and individual C (i.e., marketing

and selling the commodities produced), is

the pass-through entity. Although Entity B

may be considered an originating passthrough entity with regards to itself, it

reports a fractional share of the general

partnership (Entity A). Therefore, Entity B

App.6a

and individual C do not meet the requirements of eligibility within section 3(a)(4)

under WFRP.

M&T Farms then filed this action challenging

the FCIC’s interpretation of section 3(a)(4). The district

court granted summary judgment to the government

defendants and M&T Farms timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and

review a summary judgment de novo. Hells Canyon

Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 929

(9th Cir. 2010). Under the APA, we must uphold a

final agency decision unless it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.”4 5 U.S.C. § 706(2)(A). The “court simply

ensures that the agency has acted within a zone of

reasonableness and, in particular, has reasonably

considered the relevant issues and reasonably explained

the decision.” FCC v. Prometheus Radio Project, 592

U.S. 414, 423 (2021).

4 An FCIC regulation provides that its interpretation of a crop

insurance policy is a “final agency action” subject to judicial

review under the APA, 5 U.S.C. § 704. See 7 C.F.R. § 400.765

(defining “final agency determination” as “[m]atters of general

applicability regarding FCIC’s interpretation of provisions of

the [FCIA] or any regulation codified in the Code of Federal

Regulations, including certain policy provisions, which are

applicable to all participants in the Federal crop insurance

program and the appeals process”). Section 33(a)(1)(iii) of the

WFRP Policy additionally provides that “[a]n interpretation by

FCIC of a policy provision is considered a determination that is

a matter of general applicability.”

App.7a

An agency’s interpretation of a regulation may

also be entitled to deference under the framework

announced in Auer v. Robbins, 519 U.S. 452 (1997).

Although the WFRP Policy is not technically a regulation, the parties do not challenge the district court’s

holding that the FCIC’s interpretations of the WRFP

Policy are entitled to Auer deference. We therefore

assume without deciding that Auer deference applies.

See Bottoms Farm P’ship v. Perdue, 895 F.3d 1070,

1074 (8th Cir. 2018) (“Given the [FCIA’s] broad grant

of authority to the [FCIC], and the specific authority

over the provisions of insurance and insurance contracts . . . we must give substantial deference to the

FCIC’s interpretation of the special provision.”); see

also Davis v. Producers Agric. Ins. Co., 762 F.3d

1276, 1286 (11th Cir. 2014) (“[I]nterpretive issue[s]

within the exclusive province of the FCIC” receive

“substantial weight because they were made by the

agency charged with administration of the statute.”).

DISCUSSION

M&T Farms challenges the FCIC’s decision that

a partnership “holding the business name and good

will of [others] (i.e., marketing and selling the commodities produced)” is engaged in “farming activity” under

section 3(a)(4) of the WFRP Policy and that, therefore,

any entity reporting a fractional share of the partnership’s activity on its tax returns is ineligible for

WFRP Policy coverage.

Under the arbitrary and capricious standard of

review, a court cannot

vacate an agency’s decision unless it has

relied on factors which Congress had not

intended it to consider, entirely failed to

App.8a

consider an important aspect of the problem,

offered an explanation for its decision that

runs counter to the evidence before the

agency, or is so implausible that it could not

be ascribed to a difference in view or the

product of agency expertise.

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551

U.S. 644, 658 (2007) (cleaned up). If Auer deference

applies, we must also defer to an agency’s interpretation

of a “genuinely ambiguous” regulation if its interpretation is reasonable and entitled to controlling

weight. Kisor v. Wilkie, 588 U.S. 558, 574-76 (2019).

We conclude that the FCIC’s interpretation of “farming

activity” in the WFRP Policy passes muster under

both standards of review.

I.

APA Analysis

APA “arbitrary and capricious” review is “highly

deferential, presuming the agency action to be valid

and affirming the agency action if a reasonable basis

exists for its decision.” Ranchers Cattlemen Action

Legal Fund v. U.S. Dep’t of Agric., 499 F.3d 1108,

1115 (9th Cir. 2007) (cleaned up).

Neither the governing statute, regulations, WFRP

Policy, nor the WFRP Handbook define “farming

activity.” See, e.g., 7 U.S.C. § 1502; 7 C.F.R. §§ 400.402,

400.765. And, as the district court noted, dictionaries

provide no definitive answer about whether the

marketing and sales of agricultural commodities by a

“store-front” owned by entities that grow the commodities is “farming activity.” See Yith v. Nielsen, 881

F.3d 1155, 1165 (9th Cir. 2018) (courts may consult

dictionary definitions when interpreting statutes);

Farm, Black’s Law Dictionary (11th ed. 2019) (defining

App.9a

“to farm” as “to cultivate land” and “to conduct the

business of farming”).

M&T Farms argues that, read as a whole, the

“WFRP Policy provides a clear answer.” Its argument

begins with the definition of “farm operation” in the

WFRP Policy: “All of the farming activities for which

revenue and expenses are reported to the IRS under

a single taxpayer identification number.” M&T Farms

argues that only a “farm operation” can carry out

“farming activity.” It also notes that the WFRP Policy

ties “allowable revenue” and “allowable expenses” (used

to calculate coverage in the event of losses) to the

production of commodities.5 M&T Farms argues that

these provisions compel the conclusion that an entity

like B&T Farms, which markets and sells commodities produced by its general partners but does not

itself report revenue or expenses to the IRS (because

its general partners do), is not engaged in “farming

activity.”

As the FCIC notes, however, M&T Farms overlooks that the WFRP Policy defines “[d]irect marketing”

as “[m]arketing commodities directly to consumers

5 The WFRP Policy includes the following definitions:

Allowable expenses—Farm expenses, specified by

this policy and adjusted as applicable, that are

incurred in the production of commodities on your

farm and reported to the IRS on farm tax records.

Allowable revenue—Allowable revenue is farm

revenue, specified by this policy and including

applicable adjustments, from the production of

commodities produced by your farm operation, or

purchased for further growth and development by

your farm operation, that the IRS requires you to

report on farm tax records.

App.10a

without the involvement of a third party (e.g., farmer’s

markets, u-pick, roadside stands, internet sales, etc.)”

and links “[d]irect marketing sales records” to “allowable revenue.”6 Thus, the WFRP Policy envisions that

marketing and sales can qualify as “farming activity.”

And, the WFRP Policy’s definitions of farm operation

and allowable costs and expenses do not directly

define “farming activity.” As the FCIC stresses, these

terms all pertain only to insured entities, not affiliated

partnerships that sell the insured’s goods, like B&T

Farms.

In light of this ambiguity, the FCIC’s conclusion

that a partnership selling its partners’ products and

holding their goodwill and business name is engaged

in “farming activity” under section 3(a)(4) of the

WFRP Policy has a reasonable basis. Under the arbitrary and capricious standard of review, “the agency’s

action need only be a reasonable, not the best or most

reasonable, decision.” River Runners for Wilderness v.

Martin, 593 F.3 d 1064, 1070 (9th Cir. 2010) (per

curiam) (cleaned up). The FCIC’s interpretation of

“farming activity” in the WFRP Policy satisfies this

requirement.

The example M&T Farms submitted to the FCIC

acknowledged that the “store-front” partnership (i.e.,

B&T Farms) “holds the business name and goodwill”

6 The WFRP Policy defines “[d]irect marketing sales records”

as:

Contemporaneous records that document the sale of

commodities through direct marketing. If you sell a

commodity through direct marketing, you must provide the contemporaneous records used to determine

allowable revenue on the Schedule F farm tax form.

App.11a

for its general partners (i.e., M&T Farms and Ed

Tognetti) and their farm commodities are nominally

grown in B&T Farms’ name. From this information,

the FCIC reasonably inferred that the hypothetical

store-front partnership marketed and sold the commodities produced by its general partners, an inference

that M&T Farms concedes. That direct marketing

and sales activity, the FCIC concluded, was “farming

activity” under WFRP Policy section 3(a)(4).

This is a reasonable conclusion given the WFRP

Policy’s definitions of “direct marketing” and “direct

marketing sales records.” From there, the FCIC’s

conclusion that the store-front’s general partners are

not covered under the WFRP Policy flows inexorably

from the plain language of section 3(a)(4)—“A tax

entity which reports a fractional share of farming

activity conducted by a partnership . . . does not qualify

for WFRP coverage on the fractional share of farming

activity.”

The FCIC’s interpretation is also reasonable as a

matter of policy. First, denying WFRP Policy coverage

to entities that report the marketing and sales activities

of other entities allows insurers to effectively evaluate

coverage, claims, and audit records. Second, the

interpretation helps to avoid “double dipping,” under

which two entities make claims arising from the

same loss. See Kalvinskas v. Cal. Inst. of Tech., 96

F.3d 1305, 1309 (9th Cir. 1996) (addressing “double

dipping” in the disability context). Although there is

no allegation of double-dipping in this case, it is reasonable for the FCIC to interpret the WFRP Policy to

prevent the practice in general.

M&T Farms’ contention that the FCIC’s interpretation would lead to “clearly absurd” results is

App.12a

unpersuasive. M&T Farms’ suggestion that the interpretation would only allow farmers to sell their

commodities through direct marketing is incorrect.

As the FCIC points out, farmers selling through

unaffiliated third parties would not report a fractional

share of those parties’ farming activity and would

therefore qualify for WFRP coverage.

Nor does the fact that neither M&T Farms

nor B&T Farms would qualify for WFRP

coverage render the FCIC’s interpretation

unreasonable. Nothing in the governing

statute guarantees that every business

structure adopted by farmers will qualify

for WFRP coverage. See 7 U.S.C. § 1508(a)(1)

(“[T]he Corporation may insure . . . producers

of agricultural commodities . . . under 1 or

more plans of insurance”). And the WFRP

Policy makes clear that some businesses

(such as those who do not file a Schedule F)

are ineligible for coverage.7

To be sure, other interpretations of “farming

activity,” including M&T Farms’ proposal,

are possible. If we were simply interpreting

the language of an insurance contract in the

first instance, we might well apply the

familiar canon of construing any ambiguity

against the insurer. See, e.g., State Farm

Mut. Auto. Ins. Co. v. Partridge, 514 P.2d

123, 128 (Cal. 1973). But here, we review a

final agency action; we are not ourselves

7 The FCIC suggests that M&T Farms may be eligible for other

kinds of federal crop insurance coverage. We express no opinion

whether that is so.

App.13a

interpreting the WFRP Policy anew. We

must instead afford considerable deference

to the FCIC’s reasonable interpretation of

its policy provisions. See Muratore v. U.S.

Off. of Pers. Mgmt., 222 F.3d 918, 922 (11th

Cir. 2000); Sternberg v. Sec’y of Health &

Human Servs., 299 F.3d 1201, 1205 (10th

Cir. 2002). Because the FCIC’s interpretation

of “farming activity” in the WFRP Policy is

reasonable, it survives APA arbitrary and

capricious review.

II. Auer analysis

A. Ambiguity

Activity”

of

the

Phrase

“Farming

As discussed, the term “farming activity” under

section (3)(a)(4) of the WFRP Policy is “genuinely

ambiguous” because the governing statute, regulations,

WFRP Policy, and WFRP Handbook do not define

the term. See Kisor, 588 U.S. at 575 (holding that, to

determine whether a regulation “is genuinely ambiguous, a court must exhaust all the traditional tools of

construction” (cleaned up)); 7 U.S.C. § 1502; 7 C.F.R.

§§ 400.402, 400.765. And dictionary definitions provide

little help in clearly identifying whether non-producing

activities like marketing could constitute “farming

activity” under the WFRP Policy. See Yith, 881 F.3d

at 1165.

Although M&T Farms and the FCIC offer competing interpretations of the term, both parties can

find support for their proposed readings of “farming

activity” in the WFRP Policy. Cf. Goffney v. Becerra,

995 F.3d 737, 742 (9th Cir. 2021) (“The parties direct

App.14a

us to various other provisions of the regulations. One

supports Goffney’s reading and others support the

government’s, and they do not clearly resolve the

ambiguity.”). Therefore, the ambiguity requirement

for Auer deference is satisfied.

B. Reasonableness of Agency Interpretation

An agency’s interpretation of a regulation is only

entitled to deference if it is reasonable. Kisor, 588

U.S. at 575-76. “In other words, it must come within

the zone of ambiguity the court has identified after

employing all its interpretive tools.” Id. at 576. “It is

well established that an agency’s interpretation need

not be the only possible reading of a regulation—or

even the best one to prevail.” Decker v. Nw. EnO Def.

Or., 568 U.S. 597, 613 (2013). For the same reasons

outlined above with respect to the APA analysis, the

FCIC’s conclusion that a partnership selling its partners’ products and holding their goodwill and business name is engaged in “farming activity” under the

WFRP Policy has a reasonable basis. It is consistent

with the WFRP Policy’s definitions of “direct marketing”

and “direct marketing sales records,” is not foreclosed

by any other definition, and is justified by legitimate

policy considerations.

C. Weight of Agency Interpretation

To determine whether an agency’s interpretation

of a regulation is entitled to Auer deference, a court

must “make an independent inquiry into whether the

character and context of the agency interpretation

entitles it to controlling weight.” Kisor, 588 U.S. at

576. Under this inquiry, an interpretation must (1)

“be the agency’s authoritative or official position,” (2)

App.15a

“in some way implicate its substantive expertise,”

and (3) “reflect [its] fair and considered judgment.”

Id. at 577-79 (cleaned up). The FCIC’s interpretation

of the WFRP Policy satisfies these criteria.

M&T Farms does not dispute that the FCIC’s

interpretation of the WFRP Policy is an authoritative

official position. See 7 C.F.R. § 400.766(b)(2) (FCIC

interpretations are “binding on the parties to the

dispute”). Nor does M&T Farms claim that the interpretation does not reflect the agency’s fair and considered judgment. See Goffney, 995 F.3d at 745

(“[T]he agency [need not] engage in an exhaustive

interpretive discussion—even an interpretation implicit

in an agency’s order can reflect the agency’s ‘fair and

considered judgment.’”). Indeed, the FCIC carefully

considered M&T Farms’ interpretation request and

responded only after review by nine staff members.

Rather, M&T Farms only challenges the FCIC’s

substantive expertise, urging that its interpretation

“turns on concepts such as legal entities (e.g., partnerships) and tax reporting (e.g., Schedule F and the

like) for which the RMA-FCIC has no special knowledge.” But Congress established the FCIC to administer a system of crop insurance and tasked it with

issuing regulations and interpreting the FCIA and

its regulations. 7 U.S.C. §§ 1502-03, 1506(o), (r). The

FCIA “produced a complex and highly technical

regulatory program,” and “[t]he identification and

classification of . . . eligibility criteria necessarily require

significant expertise and entail the exercise of judgment

grounded in policy concerns.” Pauley v. BethEnergy

Mines, Inc., 501 U.S. 680, 697 (1991). The FCIC’s

interpretation of “farm activity” as part of the WFRP

Policy’s eligibility conditions necessarily implicated

App.16a

the agency’s substantive expertise in administering

crop insurance. And, contrary to M&T Farms’ argument, the FCIC’s expertise necessarily includes knowledge of legal entities and tax reporting in the farming

context, as those considerations are essential to properly

administering a crop insurance program.

CONCLUSION

The judgment of the district court is AFFIRMED.

App.17a

ORDER ON CROSS-MOTIONS

FOR SUMMARY JUDGMENT,

U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

(MARCH 9, 2023)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

________________________

M&T FARMS,

Plaintiff,

v.

FEDERAL CROP INSURANCE CORPORATION,

ET AL.,

Defendants.

________________________

Case No. 21-cv-09590-SVK

Re: Dkt. Nos. 25, 28, 29, 31

Before: Susan Van KEULEN,

United States Magistrate Judge.

ORDER ON CROSS-MOTIONS

FOR SUMMARY JUDGMENT

This is an action for judicial review of a final

agency action under the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701, et seq. This case is before

App.18a

the Court on cross-motions for summary judgment.

Dkts. 25, 28. The Parties appeared before the undersigned for oral argument on January 24, 2023, after

which the Court ordered supplemental briefing. Dkt.

33. Briefing is now complete, and the Parties have

consented to the jurisdiction of a magistrate judge

pursuant to 28 U.S.C. § 636(c)(1). Dkts. 12, 16. For the

reasons discussed below, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS

Defendants’ cross-motion for summary judgment.

I.

Issue to be Decided

1. Whether the Defendants’ conduct was arbitrary

and capricious under the Administrative Procedure

Act (“APA”).

II. Background

Although disputes involving farming insurance

are uncommon in this court, the origin of this case

springs from well-trodden ground: a plaintiff obtained

insurance, suffered a loss, and the defendant insurance

company refused to pay. Thus, this story begins.

Plaintiff M&T Farms (“M&T Farms” or “Plaintiff’)

is a general partnership consisting of two partners,

Gary Tognetti and Paul Missou, that operates a farm

in Gilroy, California. Dkt. 1 at ¶¶ 7-8. Defendants

are the Federal Crop Insurance Corporation (“FCIC”)

and the Risk Management Agency (“RMA”) (collectively, “Defendants” or “the Agencies”). In its Complaint,

Plaintiff seeks a declaratory judgment arising from

administrative determinations issued by the RMA.

Dkt. 1 at 9.

App.19a

The Federal Crop Insurance Act (“FCIA”), 7

U.S.C. § 1501, et seq., was enacted “to promote the

national welfare by improving the economic stability

of agriculture through a sound system of crop insurance

and providing the means for the research and experience helpful in devising and establishing such

insurance.” 7 U.S.C. § 1502(a). Defendant FCIC is a

federal government-owned corporation within the

U.S. Department of Agriculture that was created to

“carry out the purposes” of the FCIA. 7 U.S.C. § 1503;

31 U.S.C. § 9101(3). Defendant RMA supervises the

FCIC and administers all programs authorized under

the FCIC. 7 U.S.C. § 6933(a); 7 U.S.C. § 6933(b)(1)(3); 7 C.F.R. § 400.701. “The United States Department

of Agriculture Risk Management Agency (‘RMA’)

administers FCIC. For all relevant and practical purposes, the RMA and the FCIC are one and the same.”

William J. Mouren Farming, Inc. v. Great Am. Ins.

Co., No. 05-cv-0031, 2005 WL 2064129, at *2 (E.D.

Cal. Aug. 24, 2005).

Under the FCIA, FCIC is authorized to act as a

reinsurer to Approved Insurance Providers (“AIPs”).

7 U.S.C. § 1508. An AIP is “a private insurance provider that has been approved by [FCIC] to provide

insurance coverage to producers participating in the

Federal crop insurance program established under

this subchapter.” 7 U.S.C. § 1502(b)(2). “In order to

qualify for reinsurance through the FCIC, the policies

written by [AIPs] must comply with the FCIA and its

accompanying regulations.” Davis v. Producers Agric.

Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly, despite the fact that “the crop insurance policy

is between the farmer and an approved insurance pro-

App.20a

vider,” the FCIA “generally establishes the terms and

conditions of insurance[.]” Id.

One of the types of federal crop insurance is the

Whole-Farm Revenue Protection (“WFRP”) insurance,

which protects against losses for all commodities on

the farm under a single insurance policy. See AR

178. Here, M&T Farms purchased a WFRP Pilot

Policy (the “WFRP Policy” or “Policy”) for the 2017

crop year from Producers Agriculture Insurance Company (“ProAg”) to insure its peppers, tomatoes, corn,

cabbage, and cherries against loss of revenue. Dkt. 1

at ¶¶ 7, 9, 11, Ex. 1 (Dkt. 24, Administrative Record

(“AR”) 178-224). Non-party ProAg is an AIR Id. at

¶ 2. The WFRP Policy is reinsured by Defendant FCIC

under the provisions of the FCA. Id. at ¶ 6, Ex. 1 (AR

178-224). After paying the premiums, M&T Farms

claimed the full amount of insurance, or $1,991,876.00.

Id. at ¶ 10. On January 2, 2019, ProAg cancelled the

2017 WFRP Policy on the grounds that M&T Farms

was not a “qualifying person” under § 3(a)(4) of the

WFRP Policy. Id. at ¶ 11. Section 3(a)(4) of the

WFRP Policy provides:

3. Qualifying Person Criteria and Insurance

Eligibility

(a) To be considered a qualifying person, you

must:

(4) The Schedule F, or Substitute Schedule

F, must cover 100 percent of your farm

operation. (A tax entity which reports a

fractional share of farming activity

conducted by a partnership, corporation

or any other “joint venture” does not

App.21a

qualify for WFRP coverage on the

fractional share of farming activity).

AR 189. In its letter, ProAg explained that it

was cancelling the WFRP Policy because M&T Farms’

business structure disqualified it from coverage under

the policy. Dkt. 25-2 (McFarland Decl.), Ex. 1. M&T

Farms is, itself, a general partner with a 65% interest

in another general partnership, B&T Farms. Dkt.

¶ 31. Mr. Tognetti is the other general partner, with

a 35% ownership interest in B&T Farms. Id. ProAg

interpreted M&T Farms’ earlier presentation of the

facts as indicating that M&T was reporting a fractional

interest in B&T’s farming activities. See McFarland

Decl., Ex. 1.

A. The Arbitration and Requests for Interpretation

In April 2019, M&T Farms timely filed for arbitration to challenge ProAg’s cancellation of the WFRP

Policy. Dkt. 1 at ¶ 13. The arbitrator authorized both

ProAg and M&T Farms to seek an interpretation of

the WFRP Policy from the RMA in accordance with

federal regulations. Dkt. 1 at ¶¶ 15-16; AR 228-33,

234-41; 7 U.S.C. § 1506(r); see Davis, 762 F.3d at

1285 (“The FCIC provides, as necessary, interpretations

of the statute and regulations to interested parties.”).

Final agency determinations from the FCIC are

“[m]atters of general applicability regarding FCIC’s

interpretation of the [FCIA] or any regulation codified

in the Code of Federal Regulations, including certain

policy provisions[.]” 7 C.F.R. § 400.765. Similarly, an

FCIC interpretation is “an interpretation of a policy

provision not codified in the Code of Federal Regulations or any procedure used in the administration of

App.22a

the Federal crop insurance program.” Id. “FCIC will not

provide a final agency determination or FCIC interpretation for any request regarding, or that contains,

specific factual information to situations or cases, such

as acts or failures to act of any participant under the

terms of a policy, procedure, or any reinsurance

agreement.” 7 C.F.R. § 400.768(a). Accordingly, litigants must frame their questions more generally or

as hypotheticals.

On December 13, 2019, M&T Farms requested

FCIC’s interpretation of Sections 3(a)(4) and 3(e) of

the WFRP Policy and Paragraph 21(1)(d) of the

WFRP Pilot Handbook (the “Handbook) (AR 1-176).

AR 228-33. M&T Farms framed the issue as follows:

May a partnership who is an originating

entity that files tax forms reporting a

fractional share of the farming activity

conducted by a partnership obtain WFRP

coverage on the partner’s fractional share of

the partnership’s farming activity for which

the partnership has a financial risk of loss?

AR 230. ProAg, instead, framed the question as

follows: “May a partner who files tax forms reporting

a fractional share of the farming activity conducted

by a partnership obtain WFRP coverage on the

partner’s fractional share of the partnership’s farming

activity?” AR 237. On March 11, 2020, the RMA

responded to both requests for interpretation, indicating

that it agreed with ProAg’s interpretation and disagreed

with M&T Farms’ interpretation. AR 256-57, 259-60.

The RMA emphasized particularly that “[c]overage is

only available to a tax filing entity that reports 100

percent of the farming activity to the IRS, including

a farming activity conducted by a partnership.” AR

App.23a

256. On July 15, 2020, M&T Farms submitted a further request for interpretation to the RMA, and

ProAg did the same on August 4, 2020. AR 344-62,

451-72. This time, M&T Farms framed the question

as follows:

May a partnership that is an originating

pass-through entity that files tax forms

reporting the revenue and expenses from its

percentage share of the commodities it

physically produced qualify for WFRP

coverage for its percentage share of the

revenue from its percentage share of the

commodities?

AR 345. Additionally, M&T Farms provided the

following example:

Entity A is a general partnership made up

of Entity B (a partnership) and individual

C.

Entity A is not a “farm operation” because it

reports no farming activity to the IRS in the

form or [sic] revenues or expenses. Moreover,

Entity A is not an “originating entity”

because it physically produces no commodities. Instead, Entity A is a store-front that

holds the business name and goodwill for

Entity B and individual C.

Entity B is a “single farm operation” because

it reports 100 percent of its farm activity to

the IRS in the form of revenue and expenses

on its tax forms under a single taxpayer

number. Entity B is also an “originating

entity” because it actually physically produces

its percentage share of the commodities

App.24a

grown nominally under the name of Entity

A.

Individual C is likewise a “single farm operation” because it reports 100 percent of its

farm activity to the IRS in the form or [sic]

revenue and expenses on its tax forms

under a single taxpayer number. Individual

C also actually physically produces its

percentage share of the commodities grown

nominally under the name of Entity A.

AR 347-48. ProAg presented the following question

for the RMA’s interpretation: “May a partner who

files taxes on a fractional share of farming activity

conducted by the partnership insure that fractional

share under a WFRP policy if the partner is an

originating pass-through entity for its share of commodities produced through the partnership?” AR 294

(emphasis in original).

On September 15, 2020, the RMA responded

with its interpretations, once again siding with ProAg.

AR 560-65. In rejecting M&T Farms’ proffered interpretation, the RMA explained:

A farm operation must meet eligibility

requirements of both sections 3(a)(4) and

3(e) for coverage under WFRP. A farm operation may meet the requirements of an

originating pass-through entity within itself.

However, if that same entity also reports a

fractional share of another entity (farming

activity), the entity is not eligible for a

coverage under WFRP. Using the example

from the requestor’s interpretation, Entity

A is a partnership that includes Entity B

App.25a

and individual C. Entity A, holding the

business name and good will of Entity B

and individual C (i.e., marketing and selling

the commodities produced) is the passthrough entity. Although Entity B may be

considered an originating pass-through entity

with regards to itself, it reports a fractional

share of the general partnership (Entity A).

Therefore, Entity B and individual C do not

meet the requirements of eligibility within

section 3(a)(4) under WFRP.

AR 562. Following receipt of the RMA’s interpretations, M&T Farms timely appealed to the National

Appeals Division (“NAD”), a division of the U.S.

Department of Agriculture. AR 581-91. On March 4,

2021, the NAD found that the FCIC’s September 15,

2020 interpretations were “not appealable because

they are matters of general applicability.” AR 577-79.

The arbitrator subsequently granted ProAg’s motion

for summary disposition. Dkt. 1 at ¶ 29.

B. Federal Court Litigation

M&T Farms initiated this action against Defendants FCIC and RMA on December 10, 2021. Dkt. 1.

Defendants lodged the Administrative Record on

September 12, 2022. Plaintiff moved for summary

judgment on September 22, 2022. Dkt. 25. Defendants

filed their opposition and cross-motion to summary

judgment on October 31, 2022. Dkt. 28. Plaintiff

replied in support of its motion and in opposition to

Defendants’ cross-motion for summary judgment, and

appeared before the undersigned for a hearing on

January 24, 2022. Following oral argument, the

Court asked the Parties to file supplemental briefs

App.26a

addressing whether the action could be remanded to

the RMA. Dkt. 33. The Court has considered the

arguments raised in the Parties’ supplemental briefing

and declines to pursue that avenue. Plaintiff’s motion

for summary judgment and Defendants’ cross-motion

for summary judgment are fully briefed and ripe for

disposition.

III. Standard of Review

In cases involving review of a final agency determination under the APA, a district court’s role is not

fact-finding. Nw. Motorcycle Ass’n v. U.S. Dep’t of

Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). “[T]he

function of the district court is to determine whether

or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng’g Co. v. I.N.S., 753 F.2d

766, 769 (9th Cir. 1985). The reviewing court must

“hold unlawful and set aside agency action, findings,

and conclusions found to be . . . arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). “Review under the

arbitrary and capricious standard is deferential.” Nat’l

Ass’n of Home Builders v. Defs of Wildlife, 551 U.S.

644, 658 (2007). Under this standard, the reviewing

court “must determine whether the agency considered

the relevant factors and articulated a rational connection between the facts found and the choices made.”

Friends of Animals v. U.S. Fish & Wildlife Serv., 28

F.4th 19, 28 (9th Cir. 2022) (quoting Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 499

F.3d 1108, 1115 (9th Cir. 2007)). A reviewing court

should not vacate an agency’s decision unless the

agency has “relied on factors which Congress had not

App.27a

intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product

of agency expertise.” Nat’l Ass’n of Home Builders,

551 U.S. at 2529-30 (quoting Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). The APA does not permit a

court to overturn an agency decision because it disagrees with the decision or with the agency’s conclusions. Vt. Yankee Nuclear Power Corp. v. Natural Res.

Def. Council, Inc., 435 U.S. 519, 555 (1978). In other

words, the court “may not substitute its judgment for

that of the agency concerning the wisdom or

prudence of [the agency’s] action.” Or. Env’tl Council

v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).

IV. Discussion

Plaintiff asserts that Defendants erred in concluding that, under the hypothetical Plaintiff offered, a

general partnership may be deemed to have engaged

in farming activity where products are sold nominally

under the partnership’s name and the partnership

holds the goodwill and business name of its constituent

partners. Defendants maintain that the RMA reasonable concluded that such activities constitute farming

activity and that, to the extent Plaintiff required

additional clarity, Plaintiff should have asked the RMA

to define the term “farming activity” as it is used in

the WFRP Policy.

Before resolving the above dispute, the Court

must first clarify its role under the APA. Plaintiff’s

motion for summary judgment and reply in support

App.28a

thereof repeatedly conflate the example in its Request

for Interpretation, AR 344-50, with the actual facts

before the arbitrator. See Dkts. 25-1, 29. However,

Defendants did not engage in factfinding; Defendants

simply interpreted their own policy. See AR 560-65; 7

C.F.R. § 400.768(a). The arbitrator made factual findings based on Defendants’ policy interpretations, and

those findings are not the subject of this suit. The

Court’s review under the APA is confined to determining whether Defendants’ interpretations of the

WFRP Policy and Handbook were arbitrary and

capricious. See, e.g., Struss v. U.S. Dep’t of Agriculture,

No. 18-cv-2184, 2019 WL 2490721, at *2 (D. Kan.

June 14, 2019).

Second, the Court must clarify the scope of the

present dispute. The parties agree that to be a “qualifying person,” under the WFRP Policy, an individual

must satisfy the criteria set forth in Sections 3(a) and

3(e) and that the RMA’s interpretation of Section 3(e)

is not in dispute. Dkt. 29 at 5; Dkt. 28 at 15-17.

Therefore, the Court will not consider Section 3(e) in

the below analysis. Second, although Plaintiff purports

to challenge the RMA’s March 2020 and September

2020 interpretations, Plaintiff’s briefing seeks relief

exclusively as to the RMA’s September 2020 decisions. Dkt. 25-1 at 9; Dkt. 29 at 2. Accordingly, the

Court confines its renew to the RMA’s September

2020 decisions.

The parties have narrowed their dispute to the

following passage from the RMA’s September 2020

decision rejecting Plaintiff’s proffered interpretations

of Section 3(a)(4) of the WFRP Policy and Paragraph

21(1)(d) of the Handbook:

App.29a

A farm operation may meet the requirements

of an originating pass-through entity within

itself. However, if that same entity also

reports a fractional share of another entity

(farming activity), the entity is not eligible

for coverage under WFRP. Using the example

from the requestor’s interpretation, Entity

A is a partnership that includes Entity B

and individual C. Entity A, holding the business name and goodwill of Entity B and

individual C (i.e., marketing and selling the

commodities produced) is the pass-through

entity. Although Entity B may be considered

an originating pass-through entity with

regards to itself, it reports a fractional share

of the general partnership (Entity A). Therefore, Entity B and individual C do not meet

the requirements of eligibility within section

3(a)(4) under WFRP.

AR 562 (emphasis added). Here, the RMA holds

that Entity A’s acts of (1) holding the business name

and good will of Entity B and Individual C and (2)

marketing and selling the commodities produced by

Entity and Individual C, together mean that Entity

A is engaged in “farming activity.” See id. As demonstrated at oral argument, the central dispute for the

Court to resolve is whether the RMA’s interpretation

of the term “farming activity,” as used in the WFRP

Policy and Handbook, was arbitrary and capricious.

A. Is the Agency’s Decision Entitled to

Deference?

Before reviewing Defendants’ interpretation of

the WFRP Policy and Handbook provisions, we must

App.30a

determine the level of deference owed to the RMA’s

construction of those provisions. See 7 C.F.R. 400.765.

While the FCIA and pertinent regulations apply to

the WFRP Policy, the policy is not codified in the

Code of Federal Regulations and does not carry the

force of law. AR 11. Nevertheless, courts have treated

FCIC interpretations substantially the same as regulations for purposes of determining the level of deference owed. See, e.g., Bottoms Farm P’ship v. Perdue,

895 F.3d 1070, 1074 (8th Cir. 2018) (“Given the Act’s

broad grant of authority to the Corporation, and the

specific authority over the provisions of insurance

and insurance contracts found in 5 U.S.C. §§ 1505

and 1506, we conclude that we must give substantial

deference to the FCIC’s interpretation of the special

provision.”); Rain & Hail Ins. Serv. Inc. v. Fed. Crop

Ins. Corp., 426 F.3d 976, 979 (8th Cir. 2005) (“[W]e

think that the reasons for deferring to an agency’s

interpretation of its regulations apply equally to the

AGBCA’s interpretation of the Manager’s Bulletin[.]”);

United States v. Gonzales & Gonzales Bonds & Ins.

Agency, Inc., 103 F. Supp. 3d 1121, 1129 (N.D. Cal.

2015) (“[S]everal courts have held that, where an

agency’s action is being challenged pursuant to the

APA, and where the agency has interpreted a contract, that interpretation is entitled to deference and

the arbitrary-and-capricious standard applies—at

least where the agency’s expertise or statutory

domain is implicated.”). In the absence of guidance

from the Ninth Circuit, we, too, shall treat the FCIC

interpretations at issue here as regulations in this

respect.

App.31a

1. Is the Policy Genuinely Ambiguous?

Here, the Parties dispute whether the term “farming activity” is ambiguous. Plaintiff maintains that

the term is unambiguous and that the Court need

only look to the “plain meaning” of the WFRP Policy,

while Defendants argue that the term is ambiguous

and entitled to substantial deference under Kisor v.

Wilkie, 139 S. Ct. 2400 (2019).1 The Court finds

Section 3(a)(4) of the Policy and Paragraph 21(1)(d)

of the Handbook genuinely ambiguous as to what

activities constitute “farming activities.”

In general, “[w]hen an agency interprets its own

regulation, even if through an informal process, its

interpretation of an ambiguous regulation is controlling

under [Auer v. Robbins, 519 U.S. 452 (1997)] unless

‘plainly erroneous or inconsistent with the regulation.’”

Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir.

2006) (quoting Auer, 519 U.S. at 460). Such deference

to an agency’s construction of its own ambiguous

regulation is known as Auer deference. Kisor, 139

S.Ct. at 2411. However, an agency’s interpretation is

not entitled to Auer deference unless the regulation

is genuinely ambiguous. Amazon.com, Inc. v. Comm’r

of Internal Revenue, 934 F.3d 976, 992 (9th Cir.

2019). “And before concluding that a rule is genuinely

ambiguous, a court must exhaust all the ‘traditional

tools’ of construct.” Kisor, 139 S.Ct. at 2415 (quoting

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843 n.9 (1984)). This

requires a court to “carefully consider []” the text,

1 During oral argument, Defendants clarified that they are

arguing that the term “farming activity” is ambiguous.

Compare Dkt. 28 at 16 with Dkt. 31 at 5.

App.32a

structure, history, and purpose of a regulation, in all

the ways it would if it had no agency to fall back on.”

Id. Put more simply, a court “cannot wave the

ambiguity flag” until its “legal toolkit is empty and

the interpretive question still has no single right

answer[.]” Id.

When a court concludes that a regulation is

genuinely ambiguous, it must still find the agency’s

reading reasonable before Auer deference attaches.

Id. “In other words, it must come within the zone of

ambiguity the court has identified after employing

all its interpretive tools.” Id. The inquiry does not

end here, however. A court must still make an “independent inquiry into whether the character and

context of the agency interpretation entitles it to

controlling weight.” Id. To this end, the agency’s

interpretation “must be one actually made by the

agency,” meaning that it reflects the agency’s official

position. Id. Further, the agency’s interpretation “must

in some way implicate its substantive expertise.” Id.

Lastly, the “agency’s reading of a rule must reflect

‘fair and considered judgment’ to receive Auer deference.” Id. (quoting Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 155 (2012)). In practice, that means

‘that a court should decline to defer to a merely

‘convenient litigating position’ or ‘post hoc rationalization[n] advanced’ to ‘defend past agency action

against attack.’” Id. (quoting Christopher, 567 U.S. at

155). The new interpretation should not create

“unfair surprise” to regulated parties. Id. (quoting Long

Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170

(2007)).

Pursuant to the Supreme Court’s guidance in

Kisor, the Court accordingly addresses the text of the

App.33a

WFRP Policy, the available FCIC interpretations, and

the FDA’s regulations to the extent relevant. Kisor,

139 S.Ct. at2415. Section 3(a)(4) of the Policy provides:

3. Qualifying Person Criteria and Insurance

Eligibility

(a) To be considered a qualifying person, you

must:

(4) The Schedule F, or Substitute Schedule

F, must cover 100 percent of your farm

operation. (A tax entity which reports a

fractional share of farming activity

conducted by a partnership, corporation

or any other “joint venture” does not

qualify for WFRP coverage on the

fractional share of farming activity).

AR 189. Paragraph 21(1)(d) of the Handbook

states:

21 Eligibility

(1) To be considered eligible for a WFRP policy,

the insured must:

(d) have a Schedule F that covers 100

percent of their farm operation. A tax

entity which reports a fractional share of

farming activity conducted by a partnership, corporation, or any other “joint

venture” does not qualify for WFRP

coverage on the fractional share of

farming activity. However, a tax entity

may still qualify for WFRP coverage on

a fractional share of a commodity in

which they have an insurable interest.

App.34a

AR 20. The Parties agree that neither the FCIA,

the regulations implementing the FCIA, the WFRP

Policy nor the Handbook expressly defines the term

“farming activity.” See, e.g., 7 U.S.C. § 1501 and 7

CFR §§ 400.402, 400.765. Nor have the Parties, or

the Court, identified any prior or subsequent version

of the WFRP Policy or Handbook that offers such a

definition.2 Given the absence of a definition, the

Parties turn to the other defined terms in the WFRP

Policy for guidance. Dkt. 29 at 5-6; Dkt. 31 at 8-10.

The Court agrees that any analysis must begin with

the WFRP Policy’s other definitions and provisions.

Here, only one definition in the WFRP Policy

and Handbook uses the term “farming activity:”

Farm operation — All of the farming activities

for which revenue and expenses are reported

to the IRS under a single taxpayer identification number will be considered a single

farm operation for WFRP purposes (e.g., a

partnership filing a U.S. tax return for

partnership income that includes revenue and

expenses from separate row crop, perennial

crop and livestock farms is a single farm

operation because it files one tax return).

AR 102, 183 (emphasis added). Taking the example provided in the definition of “farm operation,”

Plaintiff argues that the partnership filing a U.S. tax

return for partnership income that includes revenue

and expenses from farming separate row crops qualifies

2 Nor does it appear that the RMA previously has taken up this

issue. See https://www.rma.usda.gov/en/Policy-and-Procedure/

Insurance-Plans/Whole-Farm-Revenue-Protection

(collecting

previous WFRP Interpretations of Procedure).

App.35a

as a single farm operation because “as the definition

holds, it reports the revenue and expenses from the

production of the commodities from its farming activities to the IRS, under a single taxpayer identification

number.” Dkt. 29 at 6. Thus, “farming activities”

must be understood in relation to the term “farm

operation” and the stated purpose of the WFRP Policy—

to protect against loss of revenue from commodities

produced by the farm operation. Id. (citing AR 178).

Stated more concisely, Plaintiff’s argument is that

the definition of “farm operation” clearly links “farming

activities” to revenue and expenses reported to the

IRS, which means that to be engaged in “farming

activities,” an entity must be generating revenue and

expenses from the commodities it produces. See id. In

support of this conclusion, Plaintiff points to the

WFRP Policy’s definitions of “allowable expenses”

and “allowable revenue:”

Allowable expenses—Farm expenses, specified

by the policy and adjusted as applicable,

that are incurred in the production of

commodities on your farm and reported to

the IRS on farm tax records.

Allowable revenue—Allowable revenue is

farm revenue, specified by this policy and

including applicable adjustments, from the

production of commodities produced by your

farm operation, or purchased for further

growth and development by your farm operation, that the IRS requires you to report on

farm tax records.

App.36a

AR 180.3 Because the Policy defines expenses in

terms of costs incurred in the production of commodities

on the insured’s farm and likewise defines revenue in

terms of the monies earned from the production of

commodities produced by the insured’s farm operation,

Plaintiff reasons that the term “farming activities”

necessarily refers to “those things from which revenue

and expenses are reported in connection with the

actual production of commodities.” Dkt. 29 at 6.

Ergo, the absence of revenue and expenses related to

the production of commodities would indicate that an

entity is not engaged in farming activities. See id.;

Dkt. 25-1 at 8.

Defendants rejoin that the definition of “farm

operation” is “largely directed to the reporting requirements, and it does not substantively restrict the

meaning of ‘farming activities.”‘ Dkt. 31 at 4. As

proof of this, they note that the term “farm operation

report” refers to “[t]he form on which you provide all

required information regarding the commodities you

expect to earn revenue from during the insurance

period” and consists of three parts. AR 183. Defendants

further argue that the terms “allowable expenses”

and “allowable revenue” are largely based on tax

reporting requirements and that such requirements

should have no bearing on the definition of “farming

activities.” Dkt. 31 at 4. While Defendants are correct

that the definition of “farm operation” does not go

into detail regarding what is and is not “farming

3 Although not discussed in the briefing, neither the WFRP

Policy nor the Handbook defines the term “revenue” or “expenses” specifically and instead defines the terms “allowable

revenue,” “allowable expenses,” “approved expenses,” and

“approved revenue.” AR 180.

App.37a

activity,” the definition does plainly link “farming

activity” with revenue and expenses. In other words,

though the definition of “farm operation” includes a

reporting component, the “farming activity” is the

reason revenue and expenses are generated that

must be reported to the IRS. The reporting requirements, accordingly, are not constricting the definition

of “farming activities;” they are merely a consequence

of the revenue and expenses generated by “all of the

farming activities” in a farm operation. Moreover, to

discount the definitions of “allowable expenses” and

“allowable revenue” as based chiefly on tax reporting

requirements, as Defendants suggest, ignores the rest

of those definitions.

Defendants further argue that even if the term

“farming activity” is linked to revenue and expenses,

the definitions of “direct marketing” and “direct marketing sales records” evidence that “farming activity”

broadly encompasses other aspects of a farm operation beyond the production of commodities. Dkt. 31.

The WFRP Policy defines “direct marketing” and

“direct marketing sales records” as follows:

Direct marketing—Marketing commodities

directly to consumers without the involvement

of a third party (e.g., farmer’s markets, upick, roadside stands, internet sales, etc.).

Direct marketing sales records—Contemporaneous records that document the sale of

commodities through direct marketing. If

you sell a commodity through direct marketing, you must provide the contemporaneous records used to determine allowable

revenue on the Schedule F farm tax form.

App.38a

AR 182. “Direct marketing sales records” also

refers to “allowable revenue” generated by the sale of

commodities through “direct marketing,” as documented

in “contemporaneous records.” Id. “Contemporaneous

records” include “written records developed at the

time the event occurred, recording information such

as planting of a commodity, harvested production,

sale of commodity, daily receipts, etc.” AR 181. Thus,

even though “direct marketing” does not involve the

production of commodities, it still generates “allowable

revenue” from the sale of a commodity. It follows

that being engaged in “farming activities” does not

necessarily require that an entity by engaged in

producing commodities because other activities, like

direct marketing, still generate revenue that must be

reported to the IRS. See id.

At oral argument, Plaintiff claimed that Defendants’ broad interpretation of the term “farming activities” is inconsistent with the other definitions in the

WFRP Policy and the “common understanding” of

what farming activity is—i.e., the production of commodities. Dkt. 32. A “farm” is commonly understood to

refer to the “land and connected buildings used for

agricultural purposes,” while the verb “farm” means

“to cultivate land; to conduct the business of farming.”

Farm (n.), farm (vb.), Black’s Law Dictionary (11th

ed. 2019); see also Yith v. Nielsen, 881 F.3d 1155,

1165 (9th Cir. 2018) (holding, for purpose of statutory

interpretation, courts, “[w]hen determining the plain

meaning of language, . . . may consult dictionary

definitions”). Yet, the dictionary definitions shed no

further light on what falls under the umbrella of

“farming activities” where the verb “farm” broadly

refers to “cultivat[ing] the land” and “conduct[ing]

App.39a

the business of farming.” Farm (vb.), Black’s Law

Dictionary (11th ed. 2019).

The Court is, therefore, unpersuaded that the

plain text of the provisions at issue are clear on their

face. The WFRP Policy and Handbook each fail to

define the term “farming activity.” Plaintiff offers a

narrow interpretation of the term while Defendants

offer a broad interpretation. Both appear plausible,

though not compelled by the language of the Policy

or Handbook. When considered in relation to the

other definitions, the Court finds that the Policy and

Handbook are ambiguous as to what constitutes

“farming activity” or “activities.” See, e,g,, George S.

v. Saul, No. 19-cv-4252, 2020 WL 6149692, at *3

(N.D. Cal. Oct. 20, 2020) (finding that where regulation

failed to “squarely address whether an individual

receiving retirement benefits is eligible for the PASS

program,” the omission rendered the regulation ambiguous on that point within the meaning of Kisor);

JPM-RDP, LLC v. U.S. Dep’t of Agriculture Risk

Mgmt. Agency, No. 17-cv-85, 2018 WL 1167325, at*

10-11 (M.D. Fla. Mar. 6, 2018) (concluding phrase

“no effective control measure exists” in 7 C.F.R.

§ 457.139, ¶ 11(b)(1) was not “plain and unambiguous”

and applying Auer deference).

2. Is the Agencies’ interpretation of

“farming activity” reasonable?

Having determined that the term “farming

activity” is ambiguous, the Court next must consider

whether the Agencies’ decision was reasonable. Kisor,

139 S. Ct. at 2415-16. “In other words, it must come

within the zone of ambiguity the court has identified

after employing all its interpretive tools.” Id. at 2416.

App.40a

“[T]he agency’s reading must fall ‘within the bounds

of reasonable interpretation.’” Id. (quoting Arlington

v. FCC, 569 U.S. 290, 296 (2013)). The Court concludes

that it does.

In Plaintiff s August 2020 Request for Interpretation, Plaintiff proposed the following example:

“Entity A is not a ‘farm operation’ because it reports

no farm activity to the IRS in the form of revenue or

expenses. Moreover, Entity A is not an ‘originating

entity’ because it physically produces no commodities.

Instead, Entity A is a storefront that holds the business name and goodwill for Entity B and individual C.”

AR 348. Plaintiff also posited that Entity B’s and

Individual C’s commodities are grown nominally under

the name of Entity A. Id. From these details, the

Agencies concluded, “Entity A, holding the business

name and goodwill of Entity B and individual C (i.e.,

marketing and selling the commodities produced), is

the pass-through entity. Although Entity B may be

considered an originating pass-through entity with

regards to itself, it reports a fractional share of the

general partnership (Entity A).” AR 562. Under the

WFRP Policy, a “pass-through entity” is an entity

that reports to the IRS but does not pay taxes on

portions of the revenue, instead passing it to each

individual owner who then pays income tax on their

portion of the revenue from the business.” AR 184.

The Agencies reasonably concluded that Entity

A’s acts of holding the business name and goodwill of

Entity B and Individual C and marketing and selling

the commodities they produce qualify as “farming

activities.” Although Plaintiff stresses that Entity A

is a mere “store-front,” Dkt. 29-1 at 2, Plaintiffs

example states that Entity A is a partnership, not a

App.41a

mere fictitious business name for Entity B or Individual

C, that holds assets and markets and sells the

commodities produced by its general partners. See

AR 347-48. As set forth above, “farming activity” is

not defined in the WFRP Policy or the Handbook. In

light of the Policy’s other definitions, particularly the

definitions of “direct marketing” and “direct marketing

sales records,” the Agencies could reasonably conclude

that Entity A is engaged in a form of direct marketing

and selling on behalf of Entity B and Individual C

and that it passes the profits from the sale of

commodities back to Entity B and Individual C. AR

182. Defendants note that the Policy and Handbook

contrast the “verifiable records” requirements for

transactions with third parties with those for “direct

marketing sales records.” See AR 47-48, 182, 186.

“Verifiable records” include “[c]ontemporaneous records

provided from a disinterested third party, such as

records from a warehouse, processor, packer, input

vendor, etc., or by measurement of farm-stored commodities.” AR 186. Based on Plaintiff’s example, Entity A

is not a disinterested third party because it (1)

markets and sells commodities produced by its general partners and (2) holds the business name and

goodwill for its general partners. See AR 347-48.

Thus, in the absence of facts to show that a thirdparty vendor sells commodities for Entity B and Individual C, the Agencies could reasonably find that, in

Plaintiff’s example, Entity A is engaged in a form of

direct marketing, such as marketing and selling

through a farmer’s market or roadside stand. AR

182, 562. Further, the Agencies could reasonably find

that Entity A’s acts of marketing and selling commodities on behalf of its general partners, coupled with

the fact that Entity A holds the business name and

App.42a

goodwill for those same partners, demonstrate that

Entity A is engaged in farming activity, thus precluding

Entity B and Individual C from meeting the eligibility requirement set forth in Section 3(a)(4) of the

Policy.

In sum, the Court finds that the Agencies’ interpretation of the WFRP Policy and Handbook was

reasonable and, further, that the Agencies reasonably concluded that Entity A was engaged in “farming

activities” under the hypothetical Plaintiff offered at

AR 347-48.

3. Is the Agencies’ interpretation

entitled to controlling weight?

The Court next must “make an independent

inquiry into whether the character and context of the

agency interpretation entitles it to controlling weight.”

Kisor, 139 S. Ct. at 2416. To this end, the interpretation

must (1) reflect the agency’s authoritative or official

position, (2) implicate the agency’s substantive expertise, and (3) reflect fair and considered judgment. Id. at

2416-18. The Court finds these criteria satisfied.

First, Defendants’ interpretations reflect the

USDA’s official position. As set forth above, M&T

Farms timely appealed the Agencies’ interpretation

to the NAD. AR 581-91. On March 4, 2021, the NAD

found that the Agencies’ September 15, 2020 interpretations were “not appealable because they are

matters of general applicability.” AR 577-79. Plaintiff

does not dispute that it has exhausted its administrative remedies with respect to the Agencies’ interpretations and that the interpretations, consequently, reflect the FDA’s official position. See Dkt. 35 at 4.

App.43a

Second, Defendants’ interpretations implicate

the Agencies’ substantive expertise. Congress established the FCIC to administer crop insurance under

the FCIA and established the RMA to supervise the

FCIC and administer all programs authorized under

the FCIC. 7 U.S.C. § 1502; 31 U.S.C. § 9101(3); 7

U.S.C. § 6933(a); 7 U.S.C. § 6933(b)(1)-(3); 7 C.F.R.

§ 400.701. Congress also vested the FCIC with the

authority to issue regulations and interpret the FCIA

or any regulations the FCIC might issue. 7 U.S.C.

§§ 1506(o), 1506(r). As relevant here, the FCIC has

issued regulations providing that it will likewise

issue interpretations “of a policy provision not codified

in the Code of Federal Regulations or any procedure

used in the administration of the Federal crop insurance program.” 7 C.F.R. § 400.765. The WFRP Policy

at issue in this case is a pilot policy reinsured by the

FCIC that is not codified in the Code of Federal

Regulations. AR 11, 178. Although the basic issue

here what constitutes “farming activity” is seemingly

prosaic, it nonetheless implicates the Agencies’ specific area of expertise in administering the complexities

of the WFRP Pilot Policy and the circumstances

under which an entity qualifies for coverage under

that Policy. See Kisor, 139 S.Ct. at 2417; Bottoms

Faun, 895 F.3d at 1073-74.

Finally, the interpretations reflect Defendants’

fair and considered judgment and are not “convenient

litigating position[s]” or “post hoc rationalization[ns].”

Kisor, 139 S.Ct. at 2417 (quoting Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)).

The interpretations reflect that the FCIC carefully

considered M&T Farms’ request and worked directly

App.44a

with the “facts” presented in the hypothetical regarding

Entities A and B and Individual C.

In sum, the Kisor framework being satisfied, the

Court finds that Auer deference is warranted.

B. The Agencies’ Decision Was Not Arbitrary

and Capricious.

Having found that Defendants’ interpretations

of the WFRP Policy and Handbook provisions at

issue are entitled to Auer deference, the Court must

defer to those interpretations “unless ‘plainly erroneous

or inconsistent with the regulation.’” Bassiri, 463

F.3d at 930. As discussed extensively in Section IV

above, the Court finds Defendants’ interpretations

neither plainly erroneous nor inconsistent with the

other WFRP Policy and Handbook provisions. Having

concluded that Entity A was engaged in “farming

activities,” Defendants’ conclusion that neither Entity

B nor Individual C met the eligibility requirements

under § 3(a)(4) is not contrary to the WFRP Policy or

Handbook. Section 3(a)(4) provides:

3. Qualifying Person Criteria and Insurance

Eligibility

(a) To be considered a qualifying person, you

must:

(4) The Schedule F, or Substitute Schedule

F, must cover 100 percent of your farm

operation. (A tax entity which reports a

fractional share of farming activity

conducted by a partnership, corporation

or any other “joint venture” does not

qualify for WFRP coverage on the

fractional share of farming activity).

App.45a

AR 189. In Plaintiff’s hypothetical, Entity B and

Individual C, Defendants conclude, are reporting a

fractional share of partnership Entity A’s farming

activities and therefore do not qualify for WFRP

coverage on the fractional share of farming activity.

AR 347-48. This conclusion follows from the plain

language of the WFRP Policy and, thus, is not arbitrary.

Further, Defendants did not act arbitrarily or

capriciously in interpreting “farming activity” as

encompassing the activities of the partnership Entity

A contained in Plaintiff’s hypothetical—i.e., holding

the business name and goodwill of its constituent

general partners and marketing and selling their

commodities under Entity A’s own name. AR 347-48;

AR 562. As set forth above, the Court found this

interpretation reasonable given the record before the

Agencies at the time the interpretations were provided

and the structure and other definitions of the WFRP

Policy and Handbook.

In sum, the Agencies reasonably determined

that “farming activity” includes holding the business

name and goodwill, “i.e., marketing and selling the

commodities produced,” of a partnership’s constituent

general partners. This determination was not plainly

erroneous or contrary to any other provision of the

WFRP Policy, Handbook, or any regulation. Thus,

the Court finds that the Agencies’ interpretation

should not be vacated on this ground.

V.

Conclusion

For the reasons set forth above, the Court

DENIES Plaintiff’s motion for summary judgment

App.46a

and GRANTS Defendants’ cross-motion for summary

judgment.

SO ORDERED.

App.47a

ORDER DENYING PETITION FOR

REHEARING, U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

(AUGUST 13, 2024)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

M&T FARMS, a California General Partnership,

Plaintiff-Appellant,

v.

FEDERAL CROP INSURANCE OPINION

CORPORATION, a wholly-owned government

corporation that administers the Federal Crop

Insurance Program; RISK MANAGEMENT

AGENCY, the United States Department of

Agriculture’s agency that manages the FCIC and

administers federal crop insurance policies,

Defendants Appellees.

________________________

No. 23-15837

D.C. No. 5:21-cv-09590-SVK

Northern District of California, San Jose

Before: M. SMITH, HURWITZ, and JOHNSTONE,

Circuit Judges.

The panel has unanimously voted to deny the

petition for panel rehearing. Judges M. Smith and

App.48a

Johnstone voted to deny the petition for rehearing en

banc, and Judge Jurwitz so recommended. The petition

for rehearing en banc, and Judge Hurwitz so recommended. The petition for rehearing en banc was

circulated to the Judges of the Court, and no judge

requested a vote for en banc consideration. Fed. R.

App. P. 35.

The petition for panel rehearing en banc, Dkt.

31, is DENIED.

App.49a

RELEVANT STATUTORY PROVISION

5 U.S.C.A. § 706

Scope of Review

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld

or unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of

statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in

a case subject to sections 556 and 557

of this title or otherwise reviewed on

the record of an agency hearing provided

by statute; or

App.50a

(F) unwarranted by the facts to the extent

that the facts are subject to trial de

novo by the reviewing court.

In making the foregoing determinations, the

court shall review the whole record or those

parts of it cited by a party, and due account

shall be taken of the rule of prejudicial error.

7 U.S.C.A. § 1502

Purpose; Definitions; Protection of Information;

Relation to Other Laws

(a) Purpose

It is the purpose of this subchapter to promote

the national welfare by improving the economic

stability of agriculture through a sound system

of crop insurance and providing the means for

the research and experience helpful in devising

and establishing such insurance.

(b) Definitions

As used in this subchapter:

(1) Additional Coverage

The term “additional coverage” means a plan of

crop insurance coverage providing a level of

coverage greater than the level available under

catastrophic risk protection.

(2) Approved Insurance Provider

The term “approved insurance provider” means

a private insurance provider that has been

approved by the Corporation to provide insurance

coverage to producers participating in the Federal

App.51a

crop insurance program established under this

subchapter.

(3) Beginning Farmer or Rancher

The term “beginning farmer or rancher” means a

farmer or rancher who has not actively operated

and managed a farm or ranch with a bona fide

insurable interest in a crop or livestock as an

owner-operator, landlord, tenant, or sharecropper

for more than 5 crop years, as determined by the

Secretary.

(4) Board

The term “Board” means the Board of Directors

of the Corporation established under section

1505(a) of this title.

(5) Corporation

The term “Corporation” means the Federal Crop

Insurance Corporation established under section

1503 of this title.

(6) Cover Crop Termination

The term “cover crop termination” means a practice that historically and under reasonable circumstances results in the termination of the

growth of a cover crop.

(7) Department

The term “Department” means the United States

Department of Agriculture.

App.52a

(8) Farm Financial Benchmarking

The term “farm financial benchmarking” means—

(A) the process of comparing the performance of

an agricultural enterprise against the performance of other similar enterprises, through

the use of comparable and reliable data, in

order to identify business management

strengths, weaknesses, and steps necessary

to improve management performance and

business profitability; and

(B) benchmarking of the type conducted by farm

management and producer associations consistent with the activities described in or

funded pursuant to section 5925f of this

title.

(9)

Hemp

The term “hemp” has the meaning given the

term in section 1639 of this title.

(10)

Loss Ratio

The term “loss ratio” means the ratio of all sums

paid by the Corporation as indemnities under

any eligible crop insurance policy to that portion

of the premium designated for anticipated losses

and a reasonable reserve, other than that portion

of the premium designated for operating and

administrative expenses.

(11)

Organic Crop

The term “organic crop” means an agricultural

commodity that is organically produced consistent

with section 6502 of this title.

App.53a

(12)

Secretary

The term “Secretary” means the Secretary of

Agriculture.

(13)

Transitional Yield

The term “transitional yield” means the maximum

average production per acre or equivalent measure

that is assigned to acreage for a crop year by the

Corporation in accordance with the regulations

of the Corporation whenever the producer fails—

(A) to certify that acceptable documentation of

production and acreage for the crop year is

in the possession of the producer; or

(B) to present the acceptable documentation on

the demand of the Corporation or an insurance company reinsured by the Corporation.

(14)

Veteran Farmer or Rancher

The term “veteran farmer or rancher” means a

farmer or rancher who—

(A) has served in the Armed Forces (as defined

in section 101 of Title 38); and

(B)

(i)

has not operated a farm or ranch;

(ii) has operated a farm or ranch for not

more than 5 years; or

(iii) is a veteran (as defined in section 101

of that title) who has first obtained

status as a veteran (as so defined)

during the most recent 5-year period.

App.54a

(c) Protection of Confidential Information

(1) General

Prohibition

Disclosure

Against

Except as provided in paragraph (2), the Secretary,

any other officer or employee of the Department

or an agency thereof, an approved insurance

provider and its employees and contractors, and

any other person may not disclose to the public

information furnished by a producer under this

subchapter.

(2) Authorized Disclosure

(A) Disclosure in

Aggregate Form

Statistical

or

Information described in paragraph (1) may be

disclosed to the public if the information has

been transformed into a statistical or aggregate

form that does not allow the identification of the

person who supplied particular information.

(B)Consent of Producer

A producer may consent to the disclosure of

information described in paragraph (1). The participation of the producer in, and the receipt of

any benefit by the producer under, this subchapter

or any other program administered by the

Secretary may not be conditioned on the producer providing consent under this paragraph.

App.55a

(3) Violations; Penalties

Section 2276(c) of this title shall apply with respect to the

release of information collected in any manner or for any purpose prohibited by this subsection.

(4) Information

(A) Request

Subject to subparagraph (B), the Farm Service

Agency shall, in a timely manner, provide to an

agent or an approved insurance provider authorized by the producer any information (including

Farm Service Agency Form 578s (or any successor

form)) or maps (or any corrections to those forms

or maps) that may assist the agent or approved

insurance provider in insuring the producer under

a policy or plan of insurance under this subchapter.

(B)Privacy

Except as provided in subparagraph (C), an

agent or approved insurance provider that receives

the information of a producer pursuant to subparagraph (A) shall treat the information in accordance

with paragraph (1).

(C)Sharing

Nothing in this section prohibits the sharing of

the information of a producer pursuant to subparagraph (A) between the agent and the approved

insurance provider of the producer.

App.56a

(d) Relation to Other Laws

(1) Terms and Conditions of Policies

and Plans

The terms and conditions of any policy or plan of

insurance offered under this subchapter that is

reinsured by the Corporation shall not—

(A) be subject to the jurisdiction of the Commodity

Futures Trading Commission or the Securities

and Exchange Commission; or

(B) be considered to be accounts, agreements

(including any transaction that is of the

character of, or is commonly known to the

trade as, an “option”, “privilege”, “indemnity”,

“bid”, “offer”, “put”, “call”, “advance guaranty”,

or “decline guaranty”), or transactions involving contracts of sale of a commodity for

future delivery, traded or executed on a

contract market for the purposes of the

Commodity Exchange Act (7 U.S.C. 1 et seq.).

(2) Effect on CFTC and Commodity

Exchange Act

Nothing in this subchapter affects the jurisdiction

of the Commodity Futures Trading Commission

or the applicability of the Commodity Exchange

Act (7 U.S.C. 1 et seq.) to any transaction

conducted on a contract market under that Act

by an approved insurance provider to offset the

approved insurance provider's risk under a plan

or policy of insurance under this subchapter.

App.57a

7 U.S.C.A. § 1503

Federal Crop Insurance Corporation;

Creation; Offices

To carry out the purposes of this subchapter,

there is hereby created as an agency of and

within the Department a body corporate with

the name “Federal Crop Insurance Corporation”.

The principal office of the Corporation shall be

located in the District of Columbia, but there

may be established agencies or branch offices

elsewhere in the United States under rules and

regulations prescribed by the Board.

7 U.S.C.A. § 1506

General Powers

(a) Succession

The Corporation shall have succession in its

corporate name.

(b) Corporate Seal

The Corporation may adopt, alter, and use a

corporate seal, which shall be judicially noticed.

(c) Property

The Corporation may purchase or lease and hold

such real and personal property as it deems

necessary or convenient in the transaction of its

business, and may dispose of such property held

by it upon such terms as it deems appropriate.

App.58a

(d) Suit

Subject to section 1508(j)(2)(A) of this title, the

Corporation, subject to the provisions of section

1508(j) of this title, may sue and be sued in its

corporate name, but no attachment, injunction,

garnishment, or other similar process, mesne or

final, shall be issued against the Corporation or

its property. The district courts of the United

States, including the district courts of the District

of Columbia and of any territory or possession,

shall have exclusive original jurisdiction, without

regard to the amount in controversy, of all suits

brought by or against the Corporation. The Corporation may intervene in any court in any suit,

action, or proceeding in which it has an interest.

Any suit against the Corporation shall be brought

in the District of Columbia, or in the district

wherein the plaintiff resides or is engaged in business.

(e) Bylaws and Regulations

The Corporation may adopt, amend, and repeal

bylaws, rules, and regulations governing the

manner in which its business may be conducted

and the powers granted to it by law may be exercised and enjoyed.

(f) Mails

The Corporation shall be entitled to the use of

the United States mails in the same manner as

the other executive agencies of the Government.

App.59a

(g) Assistance

The Corporation, with the consent of any board,

commission, independent establishment, or executive department of the Government, including

any field service thereof, may avail itself of the

use of information, services, facilities, officials,

and employees thereof in carrying out the provisions of this subchapter.

(h) Collection and Sharing of Information

(1) Surveys and Investigations

The Corporation may conduct surveys and investigations relating to crop insurance, agriculturerelated risks and losses, and other issues related

to carrying out this subchapter.

(2) Data Collection

(A) In General

The Corporation shall assemble data for the purpose of establishing sound actuarial bases for

insurance on agricultural commodities.

(B)National Agricultural Statistics

Service

Data collected by the National Agricultural

Statistics Service, whether published or unpublished, shall be—

(i)

provided in an aggregate form to the Corporation for the purpose of providing insurance under this subchapter; and

App.60a

(ii) kept confidential by the Corporation in the

same manner and to the same extent as is

required under—

(I)

section 2276 of this title; and

(II) the Confidential Information Protection

and Statistical Efficiency Act of 2002

(44 U.S.C. 3501 note; Public Law 107347).

(C)Noninsured

Crop

Assistance Program

Disaster

In collecting data under this subsection, the

Secretary shall ensure that—

(i)

appropriate data are collected through the

noninsured crop disaster assistance program

established by section 7333 of this title; and

(ii) not less frequently than annually, the Farm

Service Agency shares, and the Corporation

considers, the data described in clause (i).

(3) Sharing of Records

Notwithstanding section 1502(c) of this title,

records submitted in accordance with this subchapter and section 7333 of this title shall be

available to agencies and local offices of the

Department, appropriate State and Federal

agencies and divisions, applicants who have

received payment under section 1522(b)(2)(E) of

this title, and approved insurance providers for

use in carrying out this subchapter, such section

7333 of this title, and other agricultural programs.

App.61a

(i) Expenditures

The Corporation shall determine the character

and necessity for its expenditures under this

subchapter and the manner in which they shall

be incurred, allowed, and paid, without regard to

the provisions of any other laws governing the

expenditure of public funds and such determinations shall be final and conclusive upon all other

officers of the Government.

(j) Settling Claims

The Corporation shall have the authority to

make final and conclusive settlement and adjustment of any claim by or against the Corporation

or a fiscal officer of the Corporation.

(k) Other Powers

The Corporation shall have such powers as may

be necessary or appropriate for the exercise of

the powers herein specifically conferred upon

the Corporation and all such incidental powers

as are customary in corporations generally.

(l) Contracts

The Corporation may enter into and carry out

contracts or agreements, and issue regulations,

necessary in the conduct of its business, as

determined by the Board. State and local laws or

rules shall not apply to contracts, agreements, or

regulations of the Corporation or the parties

thereto to the extent that such contracts, agreements, or regulations provide that such laws or

rules shall not apply, or to the extent that such

App.62a

laws or rules are inconsistent with such contracts, agreements, or regulations.

(m) Submission of Certain Information

(1) Social

Security

Account

and

Employer Identification Numbers

The Corporation shall require, as a condition of

eligibility for participation in the multiple peril

crop insurance program, submission of social

security account numbers, subject to the requirements of section 405(c)(2)(C)(iii) of Title 42, and

employer identification numbers, subject to the

requirements of section 6109(f) of Title 26.

(2) Notification by Policyholders

Each policyholder shall notify each individual or

other entity that acquires or holds a substantial

beneficial interest in such policyholder of the

requirements and limitations under this subchapter.

(3) Identification of Holders of Substantial Interests

The Manager of the Corporation may require

each policyholder to provide to the Manager, at

such times and in such manner as prescribed by

the Manager, the name of each individual that

holds or acquires a substantial beneficial interest

in the policyholder.

App.63a

(4) “Substantial

Defined

Beneficial

Interest”

For purposes of this subsection, the term “substantial beneficial interest” means not less

than 5 percent of all beneficial interests in the

policyholder.

(n) Actuarial Soundness

(1) Projected Loss Ratio as of October

1, 1995

The Corporation shall take such actions as

are necessary to improve the actuarial

soundness of Federal multiperil crop insurance coverage made available under this

subchapter to achieve, on and after October

1, 1995, an overall projected loss ratio of not

greater than 1.1, including—

(A) instituting appropriate requirements for documentation of the actual production history

of insured producers to establish recorded

or appraised yields for Federal crop insurance coverage that more accurately reflect

the associated actuarial risk, except that

the Corporation may not carry out this

paragraph in a manner that would prevent

beginning farmers (as defined by the

Secretary) from obtaining Federal crop insurance;

(B) establishing in counties, to the extent

practicable, a crop insurance option based

on area yields in a manner that allows an

insured producer to qualify for an indemnity

App.64a

if a loss has occurred in a specified area in

which the farm of the insured producer is

located;

(C) establishing a database that contains the

social security account and employee identification numbers of participating producers, agents, and loss adjusters and using

the numbers to identify insured producers,

agents, and loss adjusters who are high risk

for actuarial purposes and insured producers who have not documented at least 4

years of production history, to assess the

performance of insurance providers, and for

other purposes permitted by law; and

(D) taking any other measures authorized by

law to improve the actuarial soundness of

the Federal crop insurance programwhile

maintaining fairness and effective coverage

for agricultural producers.

(2) Projected Loss Ratio

The Corporation shall take such actions, including

the establishment of adequate premiums, as are

necessary to improve the actuarial soundness of

Federal multiperil crop insurance made available

under this subchapter to achieve an overall

projected loss ratio of not greater than 1.0.

(3) Nonstandard Classification System

To the extent that the Corporation uses the

nonstandard classification system, the Corporation

shall apply the system to all insured producers

in a fair and consistent manner.

App.65a

(o) Regulations

The Secretary and the Corporation are each

authorized to issue such regulations as are

necessary to carry out this subchapter.

(p) Purchase of American-Made Equipment

and Products

(1) Sense of Congress

It is the sense of Congress that, to the greatest

extent practicable, all equipment and products

purchased by the Corporation using funds made

available to the Corporation should be Americanmade.

(2) Notice Requirement

In providing financial assistance to, or entering

into any contract with, any entity for the purchase

of equipment and products to carry out this subchapter, the Corporation, to the greatest extent

practicable, shall provide to the entity a notice

describing the statement made in paragraph (1).

(q) Redesignated (p)

(r) Procedures for Responding to Certain

Inquiries

(1) Procedures Required

The Corporation shall establish procedures under

which the Corporation will provide a final agency

determination in response to an inquiry regarding

the interpretation by the Corporation of this

App.66a

subchapter or any regulation issued under this

subchapter.

(2) Implementation

Not later than 180 days after June 23, 1998, the

Corporation shall issue regulations to implement

this subsection. At a minimum, the regulations

shall establish—

(A) the manner in which inquiries described in

paragraph (1) are required to be submitted

to the Corporation; and

(B) a reasonable maximum number of days within

which the Corporation will respond to all

inquiries.

(3) Effect of Failure to Timely Respond

If the Corporation fails to respond to an inquiry

in accordance with the procedures established

pursuant to this subsection, the person requesting

the interpretation of this subchapter or regulation

may assume the interpretation is correct for the

applicable reinsurance year.

7 C.F.R. § 400.767

Requestor Obligations

(a) All requests for a final agency determination

or FCIC interpretation submitted under this

subpart must:

(1) Be submitted to the Deputy Administrator

using the guidelines provided on RMA’s

website at www.rma.usda.gov through one

of the following methods:

App.67a

(i)

In writing by certified mail or overnight

delivery, to the Deputy Administrator,

Risk Management Agency, United States

Department of Agriculture, Beacon

Facility, Stop 0801, Room 421, P.O.

Box 419205, Kansas City, MO 64141–

6205;

(ii) By facsimile at (816) 926–3049; or

(iii) By electronic mail at subpartx@rma.

usda.gov;

(2) State whether you are seeking a final agency

determination or FCIC interpretation;

(3) Identify and quote the specific provision in

the Act, regulations, procedure, or policy

provision for which you are requesting a

final agency determination or a FCIC

interpretation;

(4) Contain no more than one request for an

interpretation (You must make separate

requests for each provision if more than one

provision is at issue. For example, if there is

a dispute with the interpretation of Paragraph

3 of the Loss Adjustment Manual, then one

request for an interpretation is required. If

there is a dispute with the interpretation of

Paragraph 3 of the Loss Adjustment Manual

and Paragraph 2 of the Macadamia Nut

Loss Adjustment Standards Handbook, then

two separate requests for an interpretation

are required);

(5) State the crop, crop year(s), and plan of

insurance applicable to the request;

App.68a

(6) State the name, address, and telephone

number of a contact person for the request;

(7) Contain your detailed interpretation of the

specific provision of the Act, regulations,

procedure, or policy provision for which the

request for interpretation is being requested;

and

(8) Not contain any specific facts, alleged conduct,

or hypothetical situations or the request

will be returned to the requestor without

consideration.

(b) You must advise FCIC if the request for a

final agency determination or FCIC interpretation

will be used in a judicial review, mediation, or

arbitration.

(1) You must identify the type of proceeding

(e.g., mediation, arbitration, or litigation), if

applicable, in which the interpretation will

be used, and the date the proceeding is

scheduled to begin, or the earliest possible

date the proceeding would likely begin if a

specific date has not been established;

(2) The name, address, telephone number, and

if applicable, fax number, or email address

of a contact person for both parties to the

dispute;

(3) Unless the parties elect to use the expedited

review process available under the AAA

rules or the appeal is before NAD, requests

must be submitted not later than 90 days

before the date the mediation, arbitration,

App.69a

or litigation proceeding in which the interpretation will be used is scheduled to begin.

(i)

If the rules of the court, mediation, or

arbitration require the interpretation

prior to the date the proceeding begins,

add 90 days to the number of days

required prior to the proceeding. For

example, if a court requires the interpretation 20 days prior to the date the

proceeding begins, you must submit the

request 110 days before the proceeding

is scheduled to begin.

(ii) Failure to timely submit a request for a

final agency determination or FCIC

interpretation may result in:

(A) FCIC issuing a determination that

no interpretation could be made because

the request was not timely submitted;

and

(B) Nullification of any agreement or

award in accordance with § 400.766 if

no final agency determination or FCIC

interpretation can be provided.

(iii) Notwithstanding paragraph (b) of this

section, if during the mediation, arbitration, or litigation proceeding, an

issue arises that requires a final agency

determination or FCIC interpretation

the mediator, arbitrator, judge, or magistrate must promptly request a final

agency determination or FCIC interpretation in accordance with § 400.

767(a).

App.70a

(4) FCIC at its sole discretion may authorize

personnel to provide an oral or written final

agency determination or FCIC interpretation,

as appropriate; and

(5) Any decision or settlement resulting from

such mediation, arbitration, or litigation

proceeding before FCIC provides its final

agency determination or FCIC interpretation

can be nullified in accordance with § 400.766.

(c) If multiple parties are involved and have

opposing interpretations, a joint request for a

final agency determination or FCIC interpretation

including both requestor interpretations in one

request is encouraged. If multiple insured persons

are parties to the dispute, and the request for a

final agency determination or FCIC interpretation

applies to all parties, one request may be submitted

for all insured persons instead of separate requests

for each person. In this case, the information

required in this section must be provided for

each person.

App.71a

FCIC RESPONSE TO M&T FARMS REQUEST

FOR POLICY INTERPRETATION

(SEPTEMBER 15, 2020)

USDA

United States Department of Agriculture

Farm Production and

Conservation Risk Management Agency

1400 Independence Avenue, SW

Stop 0801

Washington , DC 20250-0801

September 15, 2020

Attorneys for M&T Farms:

Darin T. Judd

Erin D. McFarland

Thompson, Welch, Soroko, & Gilber LLP

3950 Civic Center Drive, Suite 300

San Rafael, CA 94903

Phone: 415-448-5000

Emails:djudd@twsglaw.com

emcfarland@twsglaw.com

Subject: Request for Federal Crop Insurance Corporation (FCIC) Interpretation - 2017 WholeFarm Revenue Protection Pilot Policy

App.72a

Crop Year: 2017

Crop: Whole-Farm Revenue Protection

Dear Mr. Judd & Mr. McFarland:

Thank you for your August 4, 2020, letter

requesting a written interpretation regarding whether

a producer is eligible under section 3(a)(4) or 3(e) of

the 2017 Whole-Farm Revenue Protection (WFRP)

Pilot Policy.

Please refer to the attached enclosure for FCIC’s

interpretation.

Sincerely,

Richard H. Flournoy

Deputy Administrator

Product Management

App.73a

RISK MANAGEMENT AGENCY INTERPRETATION

OF FCIC PROVISIONS:

Subject: Request dated August 5, 2020, to the Risk

Management Agency for an interpretation

regarding whether a producer is eligible

under section 3(a)(4) or 3(e) of the 2017

Whole-Farm Revenue Protection (WFRP)

Pilot Policy.

The relevant policy provision provided by the

requestor is section 3(a)(4):

3.

Eligibility

(a) To be considered a qualifying person, you

must:

...

(4) The Schedule F, or Substitute Schedule

F, must cover 100 percent of your farm

operation. (A tax entity which reports a

fractional share of farming activity

conducted by a partnership, corporation

or any other “joint venture” does not

qualify for WFRP coverage on the

fractional share of farming activity); . . .

(e) Originating pass-through entities may insure

the allowable revenue from commodities produced by the farm operation under WFRP.

Owners of a pass-through entity that are

not the originating entity may not insure

pass-through revenue or loss under WFRP.

The relevant handbook procedure provided by

the requestor is subparagraph 21(1)(d):

App.74a

21. Eligibility

(1) To be considered eligible for a WFRP policy,

the insured must:

...

(d) have a Schedule F, or Substitute

Schedule F that covers 100 percent of

their farm operation. A tax entity

which reports a fractional share of

farming activity conducted by a

partnership, corporation or any other

“joint venture” does not qualify for

WFRP coverage on the fractional share

of farming activity. However, a tax

entity may still qualify for WFRP

coverage on a fractional share of a

commodity in which they have an

insurable interest.

Interpretation Submitted by Requestor(s)

The requestors’ interpretation of section 3(a)(4)

and 3(e) of the 2017 WFRP Pilot Policy is that a farm

operation (i.e., a partnership) may qualify for WFRP

coverage under either WFRP Policy Section 3, subsection (a)(4) and/or subsection (e). The requestor is

seeking an interpretation that an originating passthrough entity may qualify under either subsection

(a)(4) or (e), so long as the entity has a percentage

share in the commodities it physically produces, as

opposed to having a percentage share in a separate

farm operation that physically produces the commodities.

App.75a

The requestor offers the following example:

Entity A is a general partnership made up of

Entity B (a partnership) and individual C. Entity A

is not a “farm operation” because it reports no farm

activity to the IRS in the form or revenues or expenses. Moreover, Entity A is not an “originating entity”

because it physically produces no commodities. Instead,

Entity A is a storefront that holds the business name

and goodwill for Entity B and individual C.

Entity B is a “single farm operation” because it

reports 100 percent of its farm activity to the IRS in

the form of revenue and expenses on its tax forms

under a single taxpayer number. Entity B is also an

“originating entity” because it physically produces its

percentage share of the commodities grown nominally

under the name of Entity A.

Individual C is likewise a “single farm operation”

because it reports 100 percent of its farm activity to

the IRS in the form or revenue and expenses on its

tax forms under a single taxpayer number. Individual

C also actually physically produces its percentage

share of the commodities grown nominally under the

name of Entity A.

Entity B and individual C are not reporting a

fractional share of the farming activity of Entity A

because Entity A is not a “farm operation” and has

no farming activity, and because Entity A does not

actually, physically produce commodities.

Thus, in either of the above cases, the Entity B

qualifies for coverage under WFRP Policy Section 3,

subsections (a)(4) and/or (e) for the percentage of

commodities it actually, physically produces. In either

case, Entity B’s percentage share of revenue from the

App.76a

commodities is “allowable revenue” because it was

derived 100 percent from Entity B’s “farm operation”

as defined in the WFRP Policy. Moreover, Entity B’s

percentage share of the commodities was at financial

risk of loss and was therefore an “insurable interest”

as defined in the WFRP Policy.

Federal Crop Insurance

Corporation Determination

FCIC disagrees with the requestors’ interpretation

that a farm operation may be eligible for coverage

when meeting only some of the criteria required

under section 3(a)(4) and 3(e) of the 2017 WFRP Pilot

Policy and subparagraph 21(1)(d) of the 2017 WFRP

Pilot Handbook. A farm operation must meet eligibility

requirements of both sections 3(a)(4) and 3(e) for

coverage under WFRP. A farm operation may meet

the requirements of an originating pass-through entity

within itself. However, if that same entity also reports

a fractional share of another entity (farming activity),

the entity is not eligible for coverage under WFRP.

Using the example from the requestor’s interpretation,

Entity A is a partnership that includes Entity B and

individual C. Entity A, holding the business name

and goodwill of Entity B and individual C (i.e.,

marketing and selling the commodities produced), is

the pass-through entity. Although Entity B may be

considered an originating pass-through entity with

regards to itself, it reports a fractional share of the

general partnership (Entity A). Therefore, Entity B

and individual C do not meet the requirements of eligibility within section 3(a)(4) under WFRP.

For clarity, subparagraph 21(1)(d) of the WFRP

Pilot Handbook does allow a tax filing entity to

App.77a

obtain coverage on a fractional share of commodity

for which the entity has an insurable interest. For

example, an entity owns a farm operation that consists

of 100 acres of commodity A with a 100 percent share

of commodity A. The farm operation also consists of a

50 percent share of commodity B produced on another

100 acres. The entity would be eligible for WFRP

coverage on the 100 percent share of commodity A

and the 50 percent share of commodity B.

In accordance with section 33(a)(1) of the WFRP

Pilot Policy, this FCIC interpretation is generally

applicable and binding in any mediation or arbitration.

In accordance with section 33(a)(1), any appeal of

this interpretation must be in accordance with 7

C.F.R. part 11.

App.78a

FCIC WHOLE-FARM REVENUE

PROTECTION PILOT POLICY

(AUGUST 2016)

17-0076 WFRP- Pilot

Released –Aug. 2016

DEPARTMENT OF AGRICULTURE FEDERAL

CROP INSURANCE CORPORATION

WHOLE-FARM REVENUE

PROTECTION PILOT POLICY

________________________

Whole-Farm Revenue Protection (WFRP) pilot

provides protection against loss of revenue that you

expect to earn or will obtain from commodities you

produce or purchase for resale during the insurance

period. Whole-farm revenue consists of revenue from

all insured commodities on the farm operation,

including revenue from animals and animal products.

This insurance policy is reinsured by the Federal

Crop Insurance Corporation (FCIC) under the provisions of the Federal Crop Insurance Act (7 U.S.C.

1501-1524) (Act). All provisions of the policy and

rights and responsibilities of the parties are specifically subject to the Act. The provisions of the policy

may not be waived or varied in any way by us, our

insurance agent or any other contractor or employee of

App.79a

ours, or any employee of the United States Department of Agriculture (USDA). We will use the procedures, including but not limited to handbooks, manuals,

memoranda, and bulletins, as issued by FCIC and

published on the Risk Management Agency (RMA’s)

web site at http://www.rma.usda.gov/ or a successor

Web site, in the administration of this policy, including

the adjustment of any loss or claim submitted under

this policy.

In the event that we cannot pay your indemnity

because we are insolvent or are otherwise unable to

perform our duties under our reinsurance agreement

with FCIC, your claim will be settled in accordance

with the provisions of this policy, and FCIC will be

responsible for any amounts owed. No state guarantee

fund will be liable for your loss.

Throughout this policy, “you” and “your” refer to

the insured shown on the application accepted by us,

and “we,” “us,” and “our” refer to the insurance provider providing insurance. Unless the context indicates

otherwise, use of the plural form of a word includes

the singular and the singular form of the word

includes the plural. Some of the provisions contained

in this policy require information contained on farm

tax form Schedule F for the Federal tax return (Form

1040) or other alternative farm tax forms. Specific

line numbers from the Schedule F for the cash

accounting method (2013 tax year version) are referenced in the policy. To the extent that the line

numbers may change, the corresponding line number

for the Schedule F for the insurance year the policy

is in effect will apply.

App.80a

AGREEMENT TO INSURE: We agree that in return

for the payment of the premium, and subject to all of

the provisions of this policy, we will provide the

insurance as stated in this policy. If there is a

conflict between the (1) Act; (2) regulations published

at 7 CFR, Chapter IV; (3) policy provisions; and (4)

procedures issued by FCIC, the order of priority is (1)

controlling (2), etc. If there is a conflict between the

policy provisions, the order of priority is the (1)

Special Provisions, (2) actuarial documents; and (3)

these Basic Provisions, with (1) controlling (2).

[TOC Omitted]

TERMS AND CONDITIONS

YOUR INSURANCE CONTRACT

1.

Definitions

Abandon – Failure to continue activities necessary to produce an amount of allowable revenue

equal to or greater than the expected value of a

commodity, performing activities so insignificant as

to provide no benefit to a commodity, or failure to

harvest or market a commodity in a timely manner.

Accrual accounting method – A system of record

keeping in which revenue earned and expenses incurred

for a specified time period are recorded regardless of

whether or not the revenue was received or the

expenses were paid during the specified time period.

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

1501 et seq.)

Actuarial documents – The information for the

insurance year that is available for public inspection

in your agent’s office and published on RMA’s web

App.81a

site and includes available crop insurance policies,

coverage levels, and information needed to determine

amounts of insurance, premium rates, premium

adjustment percentages, program dates, and other

related information regarding the insurance coverage.

Administrative fee – A fee in addition to your

premium that you must pay for insurance for each

insurance year.

Agricultural experts – Persons who are employed

by the Cooperative Extension System, the agricultural

departments of universities, or other persons approved

by FCIC, whose research or occupation is related to

the specific commodity or practice for which such

expertise is sought.

Allowable expenses – Farm expenses, specified by

this policy and adjusted as applicable, that are

incurred in the production of commodities on your

farm and reported to the IRS on farm tax records.

Allowable Expense Worksheet – A worksheet to

be completed by you and accepted by us that adjusts

your expenses by removing any expenses that are not

approved under WFRP.

Allowable revenue – Allowable revenue is farm

revenue, specified by this policy and including

applicable adjustments, from the production of

commodities produced by your farm operation, or

purchased for further growth and development by

your farm operation, that the IRS requires you to

report on farm tax records.

Allowable Revenue Worksheet – A worksheet to

be completed by you and accepted by us that adjusts

App.82a

your revenue by removing revenue that is not allowable

under WFRP.

Animals – Living organisms other than plants or

fungi that are produced or raised in farm operations,

including, but not limited to, cattle, horses, swine,

sheep, goats, poultry, aquaculture species, bees, and

fur bearing animals. For the purposes of this policy,

animals must be propagated or reared in a controlled

environment.

Application – The form required to be completed

by you and accepted by us before insurance coverage

will begin.

Approved expenses – The amount of allowable

expenses your farm operation is expected to incur

during the insurance period, as approved by us.

Approved revenue – The amount of allowable

revenue that your farm operation is expected to earn

or will obtain from the sale of commodities you

produce, or purchase for resale, in the insurance

period as approved by us.

Assignment of indemnity – A transfer of policy

rights, where you assign your right to an indemnity

payment, for the insurance year only, to creditors or

other persons to whom you have a financial debt or

other monetary obligation.

Average allowable expenses – The simple average

of the allowable expenses for all years in your whole

– farm history period.

Average allowable revenue – The simple average

of the allowable revenue for all years in your wholefarm history period.

App.83a

Beginning accounts payable – Allowable expenses, supported by verifiable records, you incurred

prior to the insurance period but that have not been

paid at the beginning of the insurance period.

Beginning accounts receivable – Allowable revenue, supported by verifiable records, you earned

prior to the insurance period, but that has not been

received at the beginning of the insurance period.

This amount includes the value of beginning inventory

that is under a marketing contract with a buyer to be

purchased at a specified price.

Beginning farmer or rancher – An individual who

has not actively operated and managed a farm or

ranch in any state, with an insurable interest in a

crop or livestock as an owner-operator, landlord,

tenant, or sharecropper for more than five insurance

years, as determined in accordance with FCIC procedures. Any insurance year’s insurable interest may,

at your election, be excluded if earned while under

the age of 18, while in full-time military service of

the United States, or while in post-secondary education, in accordance with FCIC procedures. A person

other than an individual may be eligible for beginning

farmer or rancher benefits if all of the substantial

beneficial interest holders qualify as a beginning

farmer or rancher.

Beginning inventory – The commodities you

produced or owned prior to the insurance period, but

that have not been sold or otherwise disposed of at

the beginning of the insurance period and supported

by verifiable records. Any commodity that is under a

marketing contract with a buyer to be purchased

during the previous insurance period at a price that

will not be determined until the current insurance

App.84a

period or subsequent years will be considered as

beginning inventory.

Bypassed acreage – Land on which a commodity,

grown under a processor contract, is ready for harvest

but the buyer elects not to accept the commodity so it

is not harvested.

Calendar year filer – An insured that files taxes

based on the 12 consecutive months corresponding to

January 1 through December 31.

Cancellation date – The date specified in the

actuarial documents on which your coverage will

automatically renew unless canceled in writing by

either you or us or terminated in accordance with the

policy terms.

Carryover insured – An insured that was covered

under WFRP in the insurance year immediately

prior to the current insurance year without respect to

insurance provider.

Cash accounting method – A system of record

keeping where revenue and expenses are recorded

during the time period they are actually received or

paid.

Catastrophic Risk Protection (CAT) – The minimum level of coverage offered by FCIC.

Certified organic acreage – Acreage in the certified

organic farm operation that has been certified by a

certifying agent as conforming to organic standards

in accordance with 7 CFR part 205.

Certificate – With respect to organic crops, a written document that identifies the name of the person

certified, effective date of certification, certificate

App.85a

number, types of products certified, and name and

address of the certifying agency.

Certification – With respect to organic crops, a

determination made by the certifying agency that the

production or handling operation is in compliance

with the certifying agency’s certification standards.

Certifying agent – A private or governmental

entity accredited by the USDA Secretary of Agriculture for the purpose of certifying a production,

processing, or handling operation as organic.

Claim for indemnity – A claim for a loss made on

our form that contains the information necessary to

pay the indemnity, as specified in this policy.

Commodities purchased for resale – Commodities

not produced by your farm operation that are

purchased to be added to your farm operation and

then subsequently sold. This does not include commodities purchased for further growth, development or

maturity for later sale, or commodities purchased to

replace production of your farm operation lost due to

insurable causes.

Commodity – Any agricultural product established

or produced on your farm operation, except timber,

forest, and forest products, and animals for sport,

show, or pets.

Commodity count – The number of commodities

on your farm operation, as determined in accordance

with section 19(c).

Consent – Approval in writing by us allowing

you to take a specific action.

App.86a

Contemporaneous records – Written records

developed at the time the event occurred, recording

information such as planting of a commodity, harvested

production, sale of a commodity, daily receipts, etc.

Contract change date – The date by which changes

to the policy, if any, will be made available.

Contract grower – A person retained under contract to manage the growth of a commodity owned by

another person.

Controlled substance – Any substance whose

manufacture, distribution, or use is federally regulated

under the Controlled Substances Act.

Cooperative Extension System – A nationwide

network consisting of a state office located at each

state’s land-grant university, and local or regional

offices. These offices are staffed by one or more

agricultural experts, who work in cooperation with

the National Institute of Food and Agriculture, and

who provide information to agricultural producers

and others.

County – Any county, parish, political subdivision

of a state, or other area specified in the actuarial documents.

Damage – Injury, deterioration, or loss of production of an insured commodity due to insured or

uninsured causes.

Days – Calendar days.

Delinquent debt – Has the same meaning as the

term defined in 7 CFR part 400, subpart U.

Direct marketing – Marketing commodities directly to consumers without the involvement of a third

App.87a

party (e.g., farmer’s markets, u-pick, roadside stands,

internet sales, etc.).

Direct marketing sales records – Contemporaneous records that document the sale of commodities

through direct marketing. If you sell a commodity

through direct marketing, you must provide the contemporaneous records used to determine allowable

revenue on the Schedule F farm tax form.

Disregarded entity – A single-member tax entity

that does not elect to be treated as a corporation for

income tax purposes and files taxes under another

entity name.

Diversification discount – The discount to your

farm premium rate that your farm operation qualifies

for based on your commodity count as determined in

accordance with section 19(c).

Early fiscal year filer – An insured that files

taxes with a fiscal year that begins prior to August 1

of the insurance year.

End of insurance period, date of – The date upon

which your insurance coverage ceases for the insurance

year.

Ending accounts payable – Allowable expenses,

supported by verifiable records, you incurred during

the insurance period but that have not been paid at

the end of the insurance period.

Ending accounts receivable – Allowable revenue,

supported by verifiable records, you earned during

the insurance period, but that has not been received

at the end of the insurance period. This amount

includes the value of ending inventory that is under

App.88a

a marketing contract with a buyer to be purchased at

a specified price.

Ending inventory – The commodities you produced

during the insurance period, but that have not been

sold or otherwise disposed of at the end of the insurance period and supported by verifiable records, and

reported on the Inventory Report as ending inventory.

Any commodity that is under a marketing contract

with a buyer to be purchased during the insurance

period at a price that will not be determined until

subsequent insurance years will be considered as

ending inventory.

Expanded operation adjusted revenue – The average allowable revenue adjusted to reflect physical

expansion of the farm operation.

Expanding operation factor – A factor that is used

to calculate the expanded operation adjusted revenue

for farm operations that are physically expanding.

Expected revenue – The amount of revenue you

expect to receive from a commodity, as stated on your

Farm Operation Report.

Expected value – The price that you expect to

receive for a commodity, in accordance with the

expected value guidelines, less the cost of all postproduction expenses.

Expense trend factor – A factor that is used to

measure the year to year growth in expenses of your

farm operation.

Expense reduction factor – A factor that is used

to reduce the approved revenue for claim purposes

when allowable expenses for the current year are

App.89a

less than 70 percent of approved expenses and the

reduction is due to an insurable loss.

Familial relationship – Your parents, brothers,

sisters, children, spouse, grandchildren, aunts, uncles,

nieces, nephews, first cousins, or grandparents, related

by blood, adoption, or marriage.

Farm premium rate – The premium rate for

coverage under this policy calculated based on the

commodities on your farm operation.

Farm operation – All of the farming activities for

which revenue and expenses are reported to the IRS

under a single taxpayer identification number will be

considered a single farm operation for WFRP purposes

(e.g., a partnership filing a U.S. tax return for partnership income that includes revenue and expenses

from separate row crop, perennial crop and livestock

farms is a single farm operation because it files one

tax return).

Farm Operation Report – The form on which you

provide all required information regarding the commodities you expect to earn revenue from during the

insurance period. The Farm Operation Report consists

of three parts, the Intended Farm Operation Report,

Revised Farm Operation Report, and Final Farm

Operation Report, with each part due at the time

specified in these provisions.

Farm tax forms – IRS income tax forms used to

report farm revenue and expenses for a signed and

filed Federal tax return, specifically including Schedule

F (Form 1040) but also other forms used to report

farm revenue and used under this policy to develop a

Substitute Schedule F, if needed.

App.90a

Fiscal year – A period of 12 consecutive months

used for accounting and tax purposes, and ending on

the last day of the twelfth month as long as the

twelfth month is not December.

Farm Service Agency (FSA) – An agency of the

USDA, or a successor agency.

Generally recognized – When agricultural experts

or organic agricultural experts, as applicable, are

aware of the production method or practice and there

is no genuine dispute regarding whether the production

method or practice allows the commodity to make

normal progress toward maturity.

Good farming practices – The production methods

utilized to produce the insured commodities and

allow them to make normal progress toward maturity

resulting in at least the approved revenue, which

are: (1) For conventional or sustainable farming

practices, those generally recognized by agricultural

experts for the area; or (2) for organic farming practices, those generally recognized by organic agricultural

experts for the area or contained in the organic plan.

We may, or you may request us to, contact FCIC to

determine whether or not production methods will be

considered to be “good farming practices”.

Household – A domestic establishment including

individuals with a familial relationship and others

who live on the same property.

Indexed average expenses – The average allowable

expenses adjusted to reflect expense growth during

the whole-farm history period.

App.91a

Indexed average revenue – The average allowable revenue adjusted to reflect revenue growth

during the whole-farm history period.

Insurable interest – Your percentage of a commodity that is at financial risk of loss.

Insurance period – The tax year that begins in

the insurance year.

Insurance year – The calendar year in which the

sales closing date occurs.

Insured – The named person as shown on the

application accepted by us. This term does not extend

to any other person having a share or interest in the

crop such as, a partnership, landlord, or any other

person, unless specifically indicated on the application

accepted by us.

Insured commodity – A commodity you will produce or purchase for resale during the insurance period.

Insured revenue – The total amount of insurance

provided to you by this policy.

Intended commodity – A commodity you reported

on your Intended Farm Operation Report.

Internal Revenue Service (IRS) – A bureau of

the United States Department of the Treasury.

Inventory Report – The form on which you provide

all required information regarding the beginning

inventory and ending inventory of your farm operation.

Lag year – The tax year immediately preceding

the insurance year.

App.92a

Late fiscal year filer – An insured that files

taxes with a fiscal year that begins August 1 or later

in the insurance year.

Limited resource farmer – Has the same meaning

as the term defined by USDA at http://www.lrftool.

sc.egov.usda.gov or a successor Web site.

Local market price – The average price offered

by buyers of the commodity in the area where you

normally sell that commodity.

Market readiness operations – The on-farm activities that are the minimum required to remove the

commodity from the field and make the commodity

market ready, such as washing, packing etc. Since it

is the minimum required to remove the commodity

from the field, the activity must occur on or in close

proximity to the field where the commodity is produced.

Market readiness operations do not include any activities that occur off-farm or on-farm in in-field that

increases the value of the crop, such as canning,

freezing, and processing activities that alter the

physical nature of insurable commodities including,

but not limited to, slicing apples, putting commodities

into gift baskets, jams, jellies, wine, or cider, etc.

Marketing contract – A written agreement

between you and a buyer for the purchase of a

commodity you will produce on your farm operation

at a specified price.

National Organic Program – A regulatory program

housed within the USDA Agricultural Marketing

Service, responsible for developing national standards

for organically-produced agricultural products.

App.93a

Native sod – Acreage that has no record of being

tilled (determined in accordance with information

collected and maintained by an agency of the USDA

or other verifiable records that you provide and are

acceptable to us) for the production of an annual crop

on or before February 7, 2014, and on which the

plant cover is composed principally of native grasses,

grass-like plants, forbs, or shrubs suitable for grazing

and browsing.

Negligence – The failure to use such care as a

reasonably prudent and careful person experienced

in the production of commodities would use under

similar circumstances.

Net value – Value of a commodity at the beginning of the year minus the cost of the commodity.

Noninsured Crop Disaster Assistance Program

(NAP) – A program administered by FSA which provides financial assistance to producers of crops that

do not have a permanent crop insurance program

available.

Notice of loss – A written notice you are required

to file in your agent’s office whenever you initially

discover that your allowable revenue for the insurance

year may be less than your insured revenue.

Nursery and greenhouse commodities – Plants

which are propagated or grown to be sold as plants,

not including commodities produced by plants (e.g.,

tomato plants, but not tomatoes). For the purposes of

this policy, plants for nursery and greenhouse must

be propagated or grown in a controlled environment.

Offset – The act of deducting one amount from

another amount.

App.94a

Organic agricultural experts – Persons who are

employed by the following organizations: Appropriate

Technology Transfer for Rural Areas, Sustainable

Agriculture Research and Education or the Cooperative

Extension System, the agricultural departments of

universities, or other persons approved by FCIC whose

research or occupation is related to the specific organic

crop or practice for which such expertise is sought.

Organic farming operation – An operation that

uses organic farming practices to produce organic

commodities.

Organic farming practice – A system of plant or

animal production practices used to produce the

commodity that is reviewed by a certifying agent in

accordance with 7 CFR part 205.

Organic system plan – A written plan, in

accordance with the National Organic Program

published in 7 CFR part 205, which describes the

organic farming practices and is reviewed annually,

or at other times specified on the certificate, by a

certifying agent.

Organic standards – Standards in accordance

with the Organic Foods Production Act of 1990 (7

U.S.C. 6501 et seq.) and 7 CFR part 205.

Originating entity – An entity that actually physically produces the commodity.

Pass-through entity – An entity that reports to

the IRS but does not pay taxes on portions of the

revenue, instead passing it to each individual owner

who then pays income tax on their portion of the

revenue from the business.

App.95a

Perennial commodity – A commodity produced

on a plant, bush, tree, or vine that has a lifespan of

more than one year, as identified in the actuarial

documents.

Person – An individual, partnership, association,

corporation, estate, trust, or other legal entity, and

wherever applicable, a State or a political subdivision

or agency of a State. “Person” does not include the

United States Government or any agency thereof.

Policy – The agreement between you and us to

insure all insurable revenue on the farm operation,

and consisting of the application accepted by us, these

Basic Provisions, the Special Provisions, any other

applicable endorsements or options, the actuarial

documents and the applicable regulations published

in 7 CFR chapter IV. All farm revenue will be insured

under one policy.

Post-production operations – Any operations not

included in the definition of market readiness

operations, performed after producing and harvesting

an insured commodity to prepare it for sale. These

include, but are not limited to, any activity occurring

on-farm or off-farm to prepare the commodity for sale

or any activity that increases the value of the crop,

such as canning, freezing, and processing activities

that alter the physical nature of insurable commodities

such as slicing apples, putting commodities into gift

baskets, jams, jellies, wine, or cider, or costs for cold

and controlled atmosphere storage.

Premium billing date – The earliest date upon

which you will be billed for insurance. The premium

billing date is contained in the actuarial documents.

App.96a

Produced – An insured commodity will be considered produced when it has matured to the extent that

it is generally saleable at established markets,

regardless of whether or not it is actually harvested

by the end of the insurance period.

Production capacity – Physical land or

structures used for the production of commodities on

your farm operation.

Prohibited substance – Any biological, chemical,

or other agent that is prohibited from use by Federal

statute or is not included in the organic standards for

use on any certified organic, transitional or buffer

zone acreage. Lists of such substances are contained

at 7 CFR part 205.

Qualifying revenue threshold – The minimum

amount of revenue a commodity must be expected to

generate to qualify as a commodity for the purpose of

your commodity count, as determined in accordance

with section 19(b).

Replanted commodity – An annual commodity

replanted on the same acreage as the first insured

commodity for harvest in the same insurance period.

Replanting – Performing the cultural practices

necessary to prepare the land and then replacing the

seed or plants of the damaged or destroyed commodity

on the same acreage.

Revenue trend factor – A factor that is used to

measure the year to year growth in revenue of your

farm operation.

RMA’s Web site – A web site hosted by RMA and

located at http://www.rma.usda.gov/ or a successor

web site.

App.97a

Sales closing date – The date contained in the

actuarial documents by which an application must be

filed and the last date by which you may change your

coverage for an insurance year.

Schedule F – A tax form commonly used to file

Federal taxes for a farm.

Short tax year – A period of less than twelve

consecutive months for which a tax entity may be required to file a tax return due to changing from a

calendar year to fiscal year or vice versa or from

changing the dates of a fiscal year.

Special Provisions – The part of the policy that

contains specific provisions of insurance that may

vary by geographic area or as specified in the policy.

Substantial beneficial interest – An interest held

by any person of at least 10 percent in you (e.g., there

are two partnerships that each have a 50 percent

interest in you and each partnership is made up of

two individuals, each with a 50 percent share in the

partnership. In this case, each individual would be

considered to have a 25 percent interest in you, and

both the partnerships and the individuals would

have a substantial beneficial interest in you. The

spouses of the individuals would not be considered to

have a substantial beneficial interest unless the

spouse was one of the individuals that made up the

partnership. However, if each partnership is made

up of six individuals with equal interests, then each

would only have an 8.33 percent interest in you and

although the partnership would still have a substantial

beneficial interest in you, the individuals would not).

The spouse of any individual applicant or individual

insured will be presumed to have a substantial bene-

App.98a

ficial interest in the applicant or insured unless the

spouses can prove they are legally separated or

otherwise legally separate under the applicable state

dissolution of marriage laws. Any child of an individual

applicant or individual insured will not be considered

to have a substantial beneficial interest in the applicant

or insured unless the child has a separate legal interest

in such person.

Substitute Schedule F – A form used in place of

a Schedule F form if you file farm tax forms for your

farm operation that do not include a Federal Schedule

F tax form.

Summary of coverage – Our statement to you,

based upon your Farm Operation Report that provides

specific information about your policy including the

amount of insurance coverage.

Tax entity – Any person that has a tax reporting

requirement.

Tax year – The annual accounting period for the

farm operation defined by the period used for tax

purposes. The tax years are: (1) a calendar year; or

(2) a fiscal year.

Termination date – The date contained in the

actuarial documents upon which your insurance ceases

to be in effect because of nonpayment of any amount

due us under the policy, including premium.

Total expected revenue – The total amount of

expected revenue you expect to receive from all

commodities on your farm operation during the insurance period, as stated on your Farm Operation Report,

including expected revenue from commodities lost due

to a covered cause of loss.

App.99a

Transitional acreage – Acreage on which organic

farming practices are being followed but the acreage

does not yet qualify to be designated as certified

organic acreage.

Verifiable records – Contemporaneous records provided from a disinterested third party, such as records

from a warehouse, processor, packer, broker, input

vendor, etc., or by measurement of farm-stored commodities. Except for commodities sold through direct

marketing, if you process or pack your insured commodities, you must provide final settlement sheets showing

disposition of the insured commodities and marketing

records reconcilable with revenue reported for tax

purposes for your farm operation.

Vertically integrated operation – A person that

has a substantial beneficial interest in multiple entities

that may buy and sell commodities from each other

or move commodities from one entity to the other to

conduct post-production operations on the commodities.

Void – When the policy is considered not to have

existed for an insurance year.

Whole-farm historic average revenue and expenses

– The historic, average allowable revenue and allowable expenses generated from the farm operation,

adjusted according to this policy, and stated on the

Whole-Farm History Report.

Whole-farm history period – The five consecutive

tax years prior to the tax year immediately before

the insurance year.

Whole-Farm History Report – The report that

documents your farm operation’s allowable revenue and

allowable expenses for each tax year used to deter-

App.100a

mine your whole-farm historic average revenue and

expenses and other information necessary to determine your whole-farm historic average revenue and

expenses.

2.

Application.

(a) For your initial year of insurance, you must

provide the completed, signed, application to your

agent not later than the sales closing date.

(b) If voidance, cancellation or termination of

insurance coverage occurs for any reason, including

but not limited to indebtedness, suspension, debarment,

disqualification, cancellation by you or us or your

policy is voided due to a conviction of the controlled

substance provisions of the Food Security Act of 1985

or Title 21, a new application must be filed for the crop.

(1) Insurance coverage will not be provided if

you are ineligible under the contract or

under any Federal statute or regulation.

(2) Since applications for crop insurance cannot

be accepted after the sales closing date, if

you make any premium payment, or you

otherwise become eligible, after the sales

closing date, you cannot apply for insurance

until the next insurance year. For example,

for the 2012 insurance year, if crop A, with

a termination date of October 31, 2012, and

crop B, with a termination date of March

15, 2013, are insured and you do not pay

the premium for crop A by the termination

date, you are ineligible for crop insurance as

of October 31, 2012, and crop A’s policy is

terminated as of that date. Crop B’s policy

App.101a

does not terminate until March 15, 2013,

and an indemnity for the 2012 insurance

year may still be owed. You will not be

eligible to apply for crop insurance for any

crop until after the amounts owed are paid

in full or you file a petition to discharge the

debt in bankruptcy.

(c) To change your coverage in a subsequent

year, you must provide a policy change form reflecting

the changes by the sales closing date or the policy

terms from the previous year will remain in effect.

(d) You must include the following information

on your application for insurance or your application

will not be accepted and no coverage will be provided:

(1) The coverage level;

(2) Your social security number (SSN) if you

are an individual. If you are an individual

applicant operating as a business, you must

provide an employer identification number

(EIN) and you must also provide your SSN;

(3) Your EIN if you are a person other than an

individual; and

(4) The following for all persons who have a

substantial beneficial interest in you:

(i)

The SSN for individuals; or

(ii) The EIN for persons other than individuals and the SSNs for all individuals that comprise the person with the

EIN if such individuals also have a

substantial beneficial interest in you;

App.102a

(iii) Any child of yours will not be considered

to have an interest in you, unless the

child has a separate legal interest in

you.

(5) Whether your farm taxes, in accordance with

this policy, are filed as a:

(i)

Calendar year;

(ii) Early fiscal year; or

(iii) Late fiscal year.

(6) Any other material information required on

the application for this policy.

(7) The county listed on the application should

be the county where the majority of the

total expected revenue is earned.

(e) With respect to SSNs or EINs required on

your application:

(1) Your application will not be accepted and no

insurance will be provided for the year of

application if the application does not contain

your SSN or EIN. If your application contains

an incorrect SSN or EIN for you, your application will be considered not to have been

accepted, no insurance will be provided for

the year of application and for any subsequent

insurance years, as applicable, and such

policies will be void if:

(i)

The number is not corrected by you; or

(ii) You correct the SSN or EIN but:

(A) You cannot prove that any error

was inadvertent (Simply stating

App.103a

the error was inadvertent is not

sufficient to prove the error was

inadvertent); or

(B) It is determined that the incorrect

number would have allowed you to

obtain disproportionate benefits

under the crop insurance program,

you are determined to be ineligible

for insurance or you could avoid an

obligation or requirement under

any State or Federal law; and

(2) With respect to persons with a substantial

beneficial interest in you:

(i)

If the SSNs or EINs of such persons are

included on your application and the

SSNs or EINs are correct, but the

persons with a substantial beneficial

interest in you are ineligible for insurance, the insurance coverage for all

revenue included on your application

will be reduced proportionately by the

percentage interest in you of persons

with a substantial beneficial interest in

you (presumed to be 50 percent for

spouses of individuals);

(ii) Your policy will be void if the SSN or

EIN of any person with a substantial

beneficial interest in you is incorrect or

is not included on your application and:

(A) The number is not corrected or

provided by you, as applicable;

App.104a

(B) You cannot prove that any error or

omission was inadvertent (Simply

stating the error or omission was

inadvertent is not sufficient to prove

the error or omission was inadvertent);

(C) Even after the correct SSN or EIN

is provided by you, it is determined

that the incorrect or omitted SSN

or EIN would have allowed you to

obtain disproportionate benefits

under the crop insurance program,

the person with a substantial

beneficial interest in you is determined to be ineligible for insurance, or you or the person with a

substantial beneficial interest in you

could avoid an obligation or requirement under any State or Federal

law; or

(D) Except as provided in sections

2(e)(2)(ii)(B) and (C), your policies

will not be voided if you subsequently provide the correct SSN or

EIN for persons with a substantial

beneficial interest in you and the

persons are eligible for insurance;

(f) Your approved revenue will be reduced

proportionately by the percentage interest in you of

persons with a substantial beneficial interest in you

if such persons are ineligible for insurance as long as:

(1) The SSN’s or EIN’s of such persons are

included on your application; and,

App.105a

(2) The SSN’s or EIN’s are correct.

(g) Notwithstanding any of the provisions in this

section, you may be subject to civil, criminal or

administrative sanctions if you certify to an incorrect

SSN or EIN or any other information under this

policy.

(h) If any of the information regarding persons

with a substantial beneficial interest in you, changes:

(1) After the sales closing date from the previous insurance year, you must revise your

application by the sales closing date for the

current insurance year to reflect the correct

information; or

(2) Less than 30 days before the sales closing

date for the current insurance year, you must

revise your application by the sales closing

date for the next insurance year; and

(3) You fail to provide the required revisions,

the provisions in section (f) will apply;

(i) If you are, or a person with a substantial

beneficial interest in you is, not eligible to obtain a

SSN or EIN, whichever is required, you must request

an assigned number for the purposes of this policy

from us:

(1) A number will be provided only if you can

demonstrate you are, or a person with a

substantial beneficial interest in you is,

eligible to receive Federal benefits;

(2) If a number cannot be provided for you in

accordance with (1) your application will

not be accepted; or

App.106a

(3) If a number cannot be provided for any

person with a substantial beneficial interest

in you in accordance with (1), the amount of

insurance for all commodities on the application will be reduced proportionately by

the percentage interest of such person in

you.

(j) You must provide information to us regarding

insurance you obtained from any other insurance

provider or from any FSA office on commodities

insured by this policy. The information provided

must include the date such insurance was obtained.

(k) If your farm operation is vertically integrated,

or you own or have interest in related tax entities,

you must clearly identify and explain the relationship

between such entities at the time you file your application.

(l) Your application will not be accepted, and no

coverage will be provided, if you are ineligible under

the contract or under any Federal statute or regulation.

3.

Qualifying Person Criteria and Insurance

Eligibility.

(a) To be considered a qualifying person, you must:

(1) Be eligible to receive federal benefits;

(2) Be a U.S. citizen or resident;

(3) File either a Schedule F tax form or other

farm tax forms that can be converted to a

Substitute Schedule F;

(4) The Schedule F, or Substitute Schedule F,

must cover 100 percent of your farm operation. (A tax entity which reports a fractional

App.107a

share of farming activity conducted by a

partnership, corporation or any other “joint

venture” does not qualify for WFRP coverage

on the fractional share of farming activity);

(5) Be engaged in the business of farming and

derive revenue from the production of

commodities; and

(6) Derive not more than 50 percent of expected

revenue from commodities purchased for

resale.

(b) To be eligible for insurance under this policy

you must be a qualifying person that has filed a

United States Federal income tax return, including

farm tax forms, for each of the five years of your

whole-farm history period for the same tax entity

and farm operation as the insured person for the

insurance year unless one of the following applies:

(1) Your tax entity (taxpayer identification

number) changed (e.g., you and your spouse

form a partnership and file a U.S. Partnership

Return of Income and you previously filed a

U.S. Individual Income Tax Return that

included your spouse’s interest in the farm

operation); or

(2) You stop farming as an individual and farm

as a tax entity other than an individual;

(3) You form a successor farming operation that

is a different tax entity but is basically the

same operation;

(4) You purchase, inherit, or lease another

person’s farm operation and your use of

App.108a

their records is approved in accordance with

section 16(g);

(5) You are a qualifying person that is not required to file a United States Federal

income tax return because you are not subject to income tax (e.g., a tribal entity) and:

(i)

You must have filed reports with a

third party entity supported by verifiable

records that we agree are sufficient to

develop a Substitute Schedule F for each

year in your whole-farm history period;

and

(ii) The reports used to develop your Substitute Schedule F will be considered

your farm tax forms under this policy;

(6) You did not file farm tax forms or report

farm revenue for a tax year due to circumstances beyond your control (e.g., illness that

prevented you from farming for the year)

provided:

(i)

You only have one year in your wholefarm history period in which you did

not file farm tax forms; and

(ii) You have filed farm tax forms in the

first year of your whole-farm history

period, unless you are a carryover

insured; and

(iii) You must have earned farm revenue

during your lag year; or

(7) You qualify as a beginning farmer or rancher,

or you are a carryover insured who qualified

App.109a

as a beginning farmer or rancher in the previous insurance year, and you have fewer

than five years of farm tax forms in your

whole farm history period provided:

(i)

You provide your farm tax forms for

each year in your whole-farm history

period in which you reported farm

revenue; and

(ii) You have at least three years of farm

tax forms in your whole-farm history

period and must have earned farm

revenue during your lag year.

(c) Your farm operation will be ineligible for

insurance under this policy and no coverage will be

provided if:

(1) Your insured revenue will be greater than

$8.5 million on the sales closing date, based

on your Intended Farm Operation Report;

(2) Your farm operation includes animals and

animal products and;

(i)

Your expected revenue from animals and

animal products intended commodities

is greater than $1 million on the sales

closing date; or

(ii) We are notified by FCIC that the

underwriting capacity for this plan of

insurance has been exceeded (see section

46(j));

(3) Your expected revenue from nursery and

greenhouse intended commodities is greater

than $1 million on the sales closing date;

App.110a

(4) Your commodity count, as determined using

your Intended Farm Operation Report, equals

one and;

(i)

Potatoes are the only commodity with

expected revenue that equals or exceeds

your qualifying revenue threshold. (This

limitation is a legislated requirement

under section 508(a)(3)(C) of the Act);

(ii) Revenue protection is available under

another policy offered under the authority of the Act for the commodity with

expected revenue that equals or exceeds

your qualifying revenue threshold;

(5) You elected CAT coverage for another policy

offered under the authority of the Act that

could provide coverage to any insurable

commodity during the insurance period,

whether acreage was planted or not; or

(6) Your farm operation includes any revenue

from controlled substances.

(d) You will not be considered a qualifying person

for this insurance year if the tax year corresponding

to the insurance period will be a short tax year, if

you have short tax years in your whole-farm history

period, or if your lag year is a short tax year. If you

have any short tax years in your history:

(1) You may resubmit your whole-farm history

based on the calendar or fiscal year used for

the insurance year;

(2) The whole-farm history must accurately

reflect the income from the calendar or fiscal

year; and

App.111a

(3) We may, at our discretion and based on your

resubmitted records, allow you to obtain

insurance.

(e) Originating pass-through entities may insure

the allowable revenue from commodities produced by

the farm operation under WFRP. Owners of a passthrough entity that are not the originating entity

may not insure pass-through revenue or loss under

WFRP.

(f) Disregarded entities are not considered qualifying persons. Allowable revenue from disregarded

entities may be insured by an entity that files farm

tax forms that includes such revenue.

4.

Life of Policy, Termination, and Cancellation.

(a) After we have accepted your application, you

may not cancel this policy for the initial insurance

year.

(b) This is a continuous policy and will remain in

effect for each succeeding insurance year following

the acceptance of the original application until canceled

by you in accordance with the terms of the policy or

by us. In accordance with section 5, FCIC may

change the coverage provided from year to year.

(c) Either you or we may cancel this policy after

the initial insurance year by providing written notice

to the other on or before the cancellation date.

(d) We may cancel your policy if no premium is

earned for 3 or more consecutive years.

(e) If any amount due, including premium or

administrative fees, or overpaid indemnities, is not

paid or an acceptable arrangement for payment is

App.112a

not made on or before the termination date for the

insurance year on which an amount is due, you will

be determined to be ineligible to participate in any

crop insurance program authorized under the Act in

accordance with 7 CFR part 400, subpart U.

(1) For a policy with unpaid administrative fees

or premium, the policy will terminate effective

on the first day of the insurance year immediately subsequent to the insurance year for

which such amount was due (insurance will

be considered not to have attached in the

subsequent year and no premium will be

owed or indemnity paid);

(2) For a policy with other amounts due, the

policy will terminate effective on the termination date immediately after the account

becomes delinquent;

(3) Ineligibility will be effective as of the date

that this policy was terminated and for all

other insurance policies with coincidental

termination dates;

(4) All other crop insurance policies that are

reinsured by FCIC under the authority of

the Act will also terminate as of the next

termination date contained in the policy;

(5) If you are ineligible, you may not obtain any

insurance under the Act until payment is

made in full, you execute an agreement to

repay the debt or you have your debts discharged in bankruptcy;

(6) If you execute an agreement to pay the debt

and fail to make any scheduled payment, all

App.113a

policies will be terminated effective on the

termination date for the insurance year in

which you failed to make the scheduled payment and no indemnity payment or replant

payment, if applicable, will be due for that

crop or insurance year. You will no longer

be eligible to obtain crop insurance by

execution of an agreement to pay the debt.

You will be ineligible for crop insurance until

the debt is paid in full or you have your

debts discharged in bankruptcy;

(7) Once the policy is terminated, the policy

cannot be reinstated for the current insurance

year unless the termination was in error;

(8) After you again become eligible for insurance,

if you want to obtain insurance coverage,

you must reapply on or before the applicable

sales closing date (Since applications for

insurance cannot be accepted after the sales

closing date, if you become eligible after the

sales closing date, you cannot apply for

insurance until the next insurance year);

and

(9) If we deduct the amount due us from an

indemnity, the date of payment for the purpose of this section will be the date you sign

the properly executed claim for indemnity.

For example, if policy A, with a

termination date of January 31, 2015,

and policy B, with a termination date of

March 15, 2015, are issued and you do

not pay the premium for policy A by the

termination date, you are ineligible for

App.114a

insurance as of January 31, 2015, and

policy A is terminated on that date.

Policy B is terminated as of March 15,

2015. If you enter an agreement to

repay the debt on December 31, 2015,

you can apply for insurance for policy A

by the January 31, 2016, sales closing

date and policy B by the March 15,

2016, sales closing date. If you fail to

make a scheduled payment on April 1,

2016, your policy will terminate as of

January 31, 2016, for crop A, and March

15, 2016, for crop B, and no indemnity

payment will be due for that insurance

year for either crop. You will not be

eligible to apply for crop insurance for

any crop until after the debt is paid in

full or you have your debts discharged

in bankruptcy and you make application in accordance with section 4(e).

(f) Any amount due to us for any policy authorized

under the Act will be offset from any indemnity due

you for this or any policy insured with us under the

authority of the Act.

(1) Even if your claim has not yet been paid,

you must still pay the premium and administrative fee on or before the termination

date for you to remain eligible for insurance.

(2) If we offset any amount due us from an

indemnity payment owed to you, the date of

payment for the purpose of determining

whether you have a delinquent debt will be

App.115a

the date that you submit the claim for

indemnity in accordance with section 25.

(g) A delinquent debt for any policy will make

you ineligible to obtain crop insurance authorized

under the Act for any subsequent insurance year and

result in termination of all policies in accordance

with section 4(g)(2).

(1) With respect to ineligibility:

(i)

Ineligibility for crop insurance will be

effective on:

(A) The date that a policy was terminated in accordance with section

4(g)(2) for the insurance year for

which you failed to pay premium,

an administrative fee, or any related

interest owed, as applicable;

(B) The payment due date contained

in any notification of indebtedness

for overpaid indemnity, or replanting

payment, if you fail to pay the

amount owed, including any related

interest owed, as applicable, by such

due date;

(C) The termination date for the insurance year prior to the insurance year

in which a scheduled payment is

due under a written payment

agreement if you fail to pay the

amount owed by any payment date

in any agreement to pay the debt;

or

App.116a

(D) The termination date the policy

was or would have been terminated

under sections 4(g)(2)(i)(A), (B) or

(C) if your bankruptcy petition is

dismissed before discharge.

(ii) If you are ineligible and a policy has

been terminated in accordance with

section 4(g)(2), you will not receive any

indemnity, or replanting payment, if

applicable, and such ineligibility and

termination of the policy may affect

your eligibility for benefits under other

USDA programs. Any indemnity, or

replanting payment that may be owed for

the policy before it has been terminated

will remain owed to you, but may be

offset in accordance with section 14(j)

unless your policy was terminated in

accordance with sections 4(g)(2)(i)(A),

(B), (D) or (E).

(2) With respect to termination:

(i)

Termination will be effective on:

(A) For a policy with unpaid administrative fees or premiums, the termination date immediately subsequent to the premium billing date

for the insurance year (For policies

for which the sales closing date is

prior to the termination date, such

policies will terminate for the

current insurance year even if

insurance attached prior to the

termination date. Such termination

App.117a

will be considered effective as of the

sales closing date and no insurance

will be considered to have attached

for the insurance year and no

indemnity, or replant payment will

be owed);

(B) For a policy with other amounts

due, the termination date immediately following the date you have a

delinquent debt (For policies for

which the sales closing date is

prior to the termination date, such

policies will terminate for the

current insurance year even if

insurance attached prior to the

termination date. Such termination

will be considered effective as of the

sales closing date and no insurance

will be considered to have attached

for the insurance year and no

indemnity, or replant payment will

be owed);

(C) For all other policies that are issued

by us under the authority of the

Act, the termination date that

coincides with the termination date

for the policy with the delinquent

debt or, if there is no coincidental

termination date, the termination

date immediately following the

date you become ineligible;

(D) For execution of a written payment

agreement and failure to make any

scheduled payment, the termination

App.118a

date for the insurance year prior to

the insurance year in which you

failed to make the scheduled payment (for this purpose only, the

insurance year will start the day

after the termination date and end

on the next termination date, e.g.,

if the termination date is March 15

and you fail to make a payment on

March 15, 2015 your policy will

terminate on March 30,2015, for

the 2016 insurance year); or

(E) For dismissal of a bankruptcy

petition before discharge, the termination date the policy was or would

have been terminated under

sections 4(g)(2)(i)(A), (B) or (C).

(ii) For all policies terminated under sections

4(g)(2)(i)(A), (B), (D) or (E), any indemnities, or replanting payments paid subsequent to the termination date must

be repaid.

(iii) Once the policy is terminated, it cannot

be reinstated for the current insurance

year unless:

(A) The termination was in error;

(B) The Administrator of the Risk Management Agency, at their sole discretion, determines in accordance

with 7 CFR part 400, subpart U

and FCIC issued procedures that

the following are met:

App.119a

(1) You provide documentation that

your failure to pay your debt is

due to an unforeseen or

unavoidable event or an extraordinary weather event that created

an impossible situation for you

to make timely payment;

(2) You remit full payment of the

delinquent debt owed to us or

FCIC with your request submitted in accordance with section

4(g)(2)(iii)(B)(3);

(3) You submit a written request

for reinstatement of your policy

to us no later than 60 days after

the termination date or the

missed payment date of a previously executed written payment agreement, or the due date

specified in the notice to you of

the amount due, if applicable;

(4) If authorization for reinstatement is granted, your policies

will be reinstated effective at

the beginning of the insurance

year for which you were determined ineligible, and you will be

entitled to all applicable benefits

under such policies, provided

you meet all eligibility requirements and comply with the terms

of the policy; and

App.120a

(5) There is no evidence of fraud or

misrepresentation.

(C) We determine, in accordance with

7 CFR part 400, subpart U and

FCIC issued procedures, that the

following are met:

(1) You can demonstrate:

(i) You acted in good faith when

you made timely payment and

you omitted the most recent

month’s interest or the amount

of the payment was clearly

transposed from the amount

that was otherwise due; or

(ii) You acted in good faith when

you made the payment and

the payment was delayed and

postmarked by no more than

7 calendar days after the

termination date or the missed

payment date of a previously

executed written payment

agreement, or the due date

specified in the notice to you

of the amount due, if applicable.

(2) You remit full payment of the

delinquent debt owed to us; and

(3) You submit a written request for reinstatement of your policy to your

agent no later than 30 days after the

termination date or the missed payment date of a previously executed

App.121a

written payment agreement, or the

due date specified in the notice to

you of the amount due, if applicable;

and

(4) There is no evidence of fraud or misrepresentation.

(iv) A determination made in section 4(g)(2)

(iii)(B) exhausts all administrative

remedies for purposes of termination.

(h) Any person may sign any document relative

to crop insurance coverage on behalf of any other

person cov

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Petition for Writ of Certiorari — M&T Farms, Petitioner v. Federal Crop Insurance Corporation, et al. | Frix