Five Common Mistakes in Non-Insured Crop Disaster Claims
Non-Insured Crop Disaster claims are a particular type of crop loss claim that is designed to protect producers from crop losses resulting from natural disasters. Our agriculture attorneys at Metropolitan Law Group have seen a number of mistakes made by producers who file their own Noninsured Crop Disaster Claims with the federal government. Each of these mistakes are easily avoidable, but come up routinely in claims. Every time a claim gets denied on these grounds, the producer loses a significant amount of money. Our advise is to always consult with one of our attorneys when a disaster results in non-insured crop loss. We can help you file your claim, and get the right amount of money for the damages to your crops.
Failing to File a Timely NAP Claim
This is the first and most important mistake. The timing of noninsured crop disaster assistance program (NAP) claims are governed by a very strict set of rules. As a rule, when a crop or planting is affected by a natural disaster, producers must notify the Farm Service Agency (FSA) office where their records are maintained. The claim must be completed within 15 calendar days of the earliest of the following events:
- A natural disaster occurrence;
- The final planting date if planting is prevented by a natural disaster;
- The date that damage to the crop or loss of production becomes apparent; or
- The normal harvest date.
Hand-harvested crops (and certain perishable crops) must notify FSA within 72 hours when a loss becomes apparent. Typically, under the Administrative Decisions issued by the National Appeals Division, the loss isn’t considered “apparent” until the harvest is complete. There are some exceptions, including where a producer has only a share in a crop, that extend the 72 hour rule out to 15 days.
If notice is not issued timely to the FSA, the claim is completely denied. In a recent case involving seedless watermelons, the producer failed to notify the FSA until 17 days after the harvest was completed. As a result, the Administrative Judge upheld the Agency’s claim denial.
Failing to Produce Production Records
For each harvested crop that a producer files an application for NAP payment, the producer must provide records that show production. These records have to be reliable and verifiable according to the rules. They should be dated, show the disposition of the crop’s production, and include both the quantity and price for the crop’s production. This information helps to verify the producer’s claim that there was a loss.
Where producers often go wrong is when they mix records for different crops, or for different entities. The crop records should be clear, and supporting information like detailed weights that are verified through other documents work best. Sometimes the records from the crop buyer can be helpful, but the best practice is to keep detailed records of planting, harvesting and the sale. Pictures, spreadsheets, and production history are often relied upon by FSA and the appellate judges to overturn or uphold decisions.
Failing to Prove Good Farming Practices in Noninsured Crop Claims
It isn’t enough to simply prove a loss that occurred around the time of a disaster. To win a non-insured crop disaster claim, the producer must demonstrate that he/she followed good farming practices. Food farming practices as defined under the Non-Insured Crop Disaster Assistance Program is not whether the producer is a good farmer or whether the producer can grow the type of crop that was lost. Instead, good farming practices has a very specific meaning: “the cultural practices generally recognized as compatible with agronomic and weather conditions used for the crop to make normal progress toward maturity and produce at least the individual unit approved yield.”
This was pointed out in a recent summer squash case by Administrative Judge Amanda M. Urbanek. In that case, the court found that the producer had used less squash seed than was recommended. Using the 2017 Vegetable Handbook, the Agency denied the NAP claim on the grounds that while their vacuum planters required less seed, it wasn’t a strategy that other agricultural experts were aware of and agreed with. This decision was made despite the fact that the producer had several seasons of successful production using that method, and otherwise had good records.
Failing to Prove the Disaster Caused the Loss
Obviously, NAP is designed to provide assistance from crop losses related to disasters. If there’s no disaster, there’s no claim. Even if there’s a disaster, but no link to the loss, there’s no claim. So, the question is, how do you prove the disaster caused the loss?
There are a list of weather events and disasters that traditionally qualify as a “disaster” for claim purposes. These include:
- Damaging weather, such as a drought, freeze, hail, excessive moisture, excessive wind or hurricanes;
- Adverse natural occurrences, such as earthquakes or floods; and
- Conditions related to damaging weather or adverse natural occurrences, such as excessive heat, plant disease, volcanic smog (VOG) or insect infestation.
How these disasters impact the crop specifically determine whether or not there’s a provable link between the two. For example, where a single day resulted in 2.55″ of rain on a crop that typically required 7-10′ over the course of a month – but no other rain was recorded for 23 days, there was not a link.
Droughts are also covered, but there’s a difference between a disaster and “difficult weather conditions.” The simple absence of rain for a selected period of time isn’t alone enough to claim a drought has occurred. Inspections of the crop over time can show the loss of crops as the weather remained dry, and prompt review by an adjuster can be relied upon by the producer to show losses. The U.S. Drought monitor is also strong evidence to support a claim. But simply filing a claim because the weather was dry is not enough.
Double Cropping and Noninsured Crop Disaster Claims
Double cropping, as defined by the NAP handbook, as “a subsequent crop of a different commodity planted on the same acreage as the first crop.” This is essentially trying to get the same acreage to produce roughly double the amount of yield over the same crop year. Double cropping doesn’t, in and of itself, deny a producer the right to make a NAP claim.
There are two circumstances that have to be satisfied to permit a double cropped acre to have a NAP claim on the second crop: (1) the two crops have to be capable of being planted and carried to maturity for the intended use (indicated by the producer) on the same acreage within a crop year under normal growing conditions; and (2) the specific combination of crops is recommended by the Farm Service Agency County Committee (COC) and approved by the State Technical Committee (STC).
The second point (a recommendation by the COC and approval by the STC) are fairly straightforward. STC approvals are documented, and the COC’s recommendation is also often times published, or at least publicly accessible.
Likewise, the first point (crop co-existence) can be determined using the planting and harvesting dates. If the first crop’s harvest dates come after the last planting date for the second crop, they’re not capable of being planted on the same acreage within a normal crop year. Most of this information can be easily proven, if the producer is organized in his/her presentation to the Agency.
Our Agriculture Attorneys Can Help Your Noninsured Crop Claim
The Agriculture Attorneys with our firm have the knowledge to help you with your NAP claim. Whether its advising you on how to document and prepare your claim ahead of a potential loss, or in fighting through appeals of claim denials, we can help. The most important thing is to contact our attorneys quickly. Non-Insured Crop Disaster Assistance Program claims have very short windows for filing, and very specific standards to prove. Call us today, or fill out our online NAP claim intake form.