On June 3-5, 2019, the Federal Crop Insurance Corporation Board of Directors (Board) met in Washington, DC. The agenda showed a very full meeting with numerous user fee requests, concept proposals and submissions (https://www.rma.usda.gov/-/media/RMAweb/FCIC/2019/2019-June/0604agenda.ashx?la=en). Of the 15 action items on the agenda, it appeared that the Board acted on 12 of them (https://www.rma.usda.gov/en/Federal-Crop-Insurance-Corporation/Board-Meetings/2019-06-04). The Board also issued a Sense of the Board that stated that it will consider research and development for full and complete 508(h) submissions received by the October 2019 submission window for the 2020 crop year implementation. The Board also stated that it may also consider a hemp crop insurance product submission at the July 2020 submission window.
ANALYSIS – Senses of the Board are not rare. The Board uses these Senses of the Board to send messages to submitters. Recent ones have included issues regarding whether expansions of products to new commodities or new areas are new submissions or maintenance (https://legacy.rma.usda.gov/fcic/2018/815board1.pdf, https://legacy.rma.usda.gov/fcic/2018/524board2.pdf), reminding submitters that notification when 90 percent of the estimated costs in the cost budget provided in the concept proposal, submission, or maintenance request have been expended apply regardless of when the concept or submission was provided to the Board (https://legacy.rma.usda.gov/fcic/2018/815board2.pdf), RMA’s publication of notice of intent to conduct research and development for a particular commodity (https://legacy.rma.usda.gov/fcic/2018/524board3.pdf), imposing or lifting moratoriums on the consideration of expansions of new plans of insurance to new commodities until the new plan of insurance has been proven sound (https://legacy.rma.usda.gov/fcic/2017/921chairmanstatement.pdf), etc.
While the Sense of the Board is a valuable tool, this is the first time in my recollection it has been used to impose a deadline on future submissions. This Sense of the Board contains two windows to provide submissions, October 2019 and July 2020 and presumably applies to every submitter. It does not specify what happens if a completed submission is provided in the January 2020 window. It does not specify what happens if no submission is provided by the stated windows. It is unclear whether this Sense of the Board is targeted at a specific submitter since concepts and submissions are confidential until approved by the Board so there is no way to know if hemp came up at the meeting. Without a statement of purpose, this Sense of the Board is perplexing.
Under section 508(h) of the Act, the Board must consider all submissions and approve them as long as the criteria for approval have been met. Concepts and submissions can be provided in any of the fours windows, January, April, July and October. There is nothing in section 508(h) of the Federal Crop Insurance Act that suggests that the Board may dictate what window it receives concept or submissions. The Act, regulations and procedures only refer to impositions of deadlines with respect to a concept that has been approved for advanced funding. The resolution generally has a deadline by which the submission must be provided but that is unique to the submitter and a particular concept because the submitter may have to repay advance payments if no submission has been provided.(https://legacy.rma.usda.gov/fcic/2018/815conceptproposal144.pdf).
The Board certainly has the authority to encourage certain submissions and suggest an urgency about the need for the development. However, there appears to be no authority to impose arbitrary deadlines, especially when skipping a window. Further, even if a submission were approved today, if three years from now a submitter wanted to bring a hemp concept or submission before the Board, it would have to consider it. There are too many crops and livestock that are covered by multiple plans of insurance.
All statements made are opinions of the author and are not intended to provide legal opinions or legal advice.