Final Agency Determination: FAD-137

FAD-137

Subject: Request dated February 8, 2011, requesting a Final Agency Determination for the 2010 crop year regarding the interpretation of the section 1 definition of "agricultural experts" of the Common Crop Insurance Policy Basic Provisions (Basic Provisions), published at 7 C.F.R. 457.8. This request is pursuant to 7 C.F.R. part 400, subpart X.

Background

Section 1 definition of "agricultural experts" of the Basic Provisions states, as here pertinent:

1. Definitions.

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Agricultural experts - Persons who are employed by the Cooperative State Research, Education and Extension Service or the agricultural departments of universities, or other persons approved by FCIC, whose research or occupation is related to the specific crop or practice for which such expertise is sought.

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The requestor states the Basic Provisions, various other policy terms, MGR-05-010, FAD-123 and other authorities require approved insurance providers (AIP), under specified circumstances, to defer to agricultural experts' opinions and recommendations to assist in making various determinations, including (without limitation) those as to good farming practices (see also MGR-05-010); what constitutes a cover crop; what are conventional, generally recognized, and sustainable practices; whether a crop is planted under conditions generally recognized for the area; and what method of pre-planting soil treatment is necessary to maintain the insurability of fresh market tomatoes or fresh market peppers.

The requester is especially concerned that a misimpression has developed about who it is that FCIC has authorized to determine things such as which methods of pre-planting soil treatment are proper under the Fresh Market Pepper and Fresh Market Tomato (Dollar Plan) policies. For example, there may be situations where an arbitrator considered and deferred to the opinions of a chemical salesman who was not an "agricultural expert" under the policy, even though the chemical salesman's opinions and recommendations were counter to those of extension personnel who met the policy's agricultural expert definition and were also counter to published extension recommendations. The requestor recommends that FCIC generally clarify that it is inappropriate for an AIP or an arbitrator to defer to the opinions and recommendations of people who are not within the definition of "agricultural experts."

Interpretation Submitted

The requestor interprets the Basic Provisions definition of "agricultural experts" to establish those people who meet the definition are the only people whose opinions and recommendations an AIP may rely on or defer to when the policy terms, bulletins, FADs, or other authorities refer the AIP to an agricultural expert. People who do not otherwise independently fit within that definition (for example, agricultural product salesmen or consultants who are not extension employees, are not employed by the agricultural department of a university, and have not been approved by the Federal Crop Insurance Corporation (FCIC)) are not authorities to whom AIPs and arbitrators may defer for opinions and recommendations when the policy terms require deference to agricultural experts.

The requestor further understands this interpretation will apply to the circumstances of FAD-123.

Final Agency Determination

FCIC agrees with the requestor. When the policy terms, FADs, or other authorities refer to agricultural experts, these agricultural experts are limited to those people who meet the definition as provided in section 1 of the Basic Provisions. These people are limited to persons: 1) employed by the Cooperative State Research, Education and Extension Service; 2) employed by the agricultural departments of universities; or persons approved by FCIC. Pursuant to Manager's Bulletin MGR-05-010, the list of persons approved by FCIC include: 1) persons certified by the American Society of Agronomy (ASA) as Certified Crop Advisers and Certified Professional Agronomists; 2) persons certified by the National Alliance of Independent Crop Consultants (NAICC) as Certified Professional Crop Consultants; and 3) persons certified by the American Society for Horticultural Sciences as Certified Professional Horticulturists. Additional persons may be designated by FCIC as agricultural experts. Such persons will be listed on RMA's website at www.rma.usda.gov. Opinions by persons who do not meet these qualifications are not to be considered in making decisions under the policy or in reviewing the decisions that have been made under the policy.

In accordance with 7 C.F.R. 400.765 (c), this Final Agency Determination is binding on all participants in the Federal crop insurance program for the 2010 crop year. Any appeal of this decision must be in accordance with 7 C.F.R. 400.768(g).

Date of Issue: April 29, 2011