Final Agency Determination: FAD-138
Subject: By request dated February 8, 2011, the Risk Management Agency was asked for an interpretation for the 2010 crop year regarding Section 9(b)(3) of the Fresh Market Pepper Crop Provisions, published at 7 C.F.R. Section 457.148. This request is pursuant to 7 C.F.R. part 400 subpart X.
Section 9(b)(3) of the Fresh Market Pepper Crop Provisions states:
9. Insurable Acreage.
(b) (b) In addition to the provisions of section 9 (Insurable Acreage) of the Basic Provisions (457.8):
(3) We will not insure any acreage on which peppers (except for replanted peppers in accordance with sections 9(b)(1) and (2)), tomatoes, eggplants, or tobacco have been grown and the soil was not fumigated or otherwise properly treated before planting peppers.
Section 1 definition of "agricultural experts" in the Common Crop Insurance Policy Basic Provisions (Basic Provisions) states:
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.
The requester interprets section 9(b)(3) of the Fresh Market Pepper Crop Provisions, like the almost-identical language in section 9(b)(3) of the Fresh Market Tomato (Dollar Plan) Crop Provisions, to permit the insurance of pepper acreage on which non-replanted peppers or tomatoes, eggplants, or tobacco have previously been grown, so long as the producer has done EITHER of the following before planting the peppers intended to be insured:
(1) The producer has fumigated the soil with a broad-spectrum fumigant chemical (such as those containing methyl bromide or chloropicrin) using proper fumigation equipment and techniques; OR
(2) The producer has not fumigated the soil, but has otherwise properly treated the soil in compliance with and pursuant to the recommendations of agricultural experts who meet the definition of "agricultural expert" in section 1 of the Basic Provisions and who are familiar with the local soils and agronomic conditions.
The requester's interpretation is consistent with RMA's interpretation of the tomatoes policy in FAD-123. RMA did not specifically reference the definition of "agricultural expert" in FAD-123, but the requester asks that RMA do so in its response to this FAD request to clarify that it is only proper to rely on the recommendations of those who meet that definition.
Final Agency Determination
The Federal Crop Insurance Corporation (FCIC) agrees with the requester's interpretation of section 9(b)(3) for initially planted peppers (non-replanted). The producer can either fumigate the soil with a broad-spectrum fumigant chemical using proper fumigation equipment and techniques or otherwise treat the soil in accordance with the recommendation of an agricultural expert. FCIC also agrees when the policy terms, FADs, or other documents such as procedures refer to "agricultural experts," these persons are limited to persons who meet the definition as provided in section 1 of the Basic Provisions.
Although the requester references in their FAD letter the Fresh Market Pepper Crop Provisions with a policy number of "98-010" for the 2010 crop year, the correct policy number is "99-083" for the 2010 crop year.
In accordance with the 7 C.F.R 400.765(c), this constitutes the final agency determination and is binding on all participants in the Federal crop insurance program for the 2010 crop year.
Date of Issue: April 29, 2011