(a) Before any disqualification or civil fine is imposed, FCIC will provide the affected participants and other persons with notice and an opportunity for a hearing on the record in accordance with 7 CFR part 1, subpart H.
(1) Proceedings will be initiated when the Manager of FCIC files a complaint with the Hearing Clerk, United States Department of Agriculture.
(2) Disqualifications become effective:
(i) On the date specified in the order issued by the Administrative Law Judge or Judicial Officer, as applicable, or if no date is specified in the order, the date that the order was issued.
(ii) With respect to a settlement agreement with FCIC, the date contained in the settlement agreement or, if no date is specified, the date that such agreement is executed by FCIC.
(3) Disqualification and civil fines may only be imposed if a preponderance of the evidence shows that the participant or other person has met the standards contained in § 400.454(b). FCIC has the burden of proving that the standards in § 400.454(b) have been met.
(4) Disqualification and civil fines may be imposed regardless of whether FCIC or the approved insurance provider has suffered any monetary losses. However, if there is no monetary loss, disqualification will only be imposed if the violation is material in accordance with § 400.454(c).
(b) Disqualification and civil fines may be imposed on any participant or person who willfully and intentionally:
(1) Provides any false or inaccurate information to FCIC or to any approved insurance provider with respect to a policy or plan of insurance authorized under the Act either through action or omission to act when there is knowledge that false or inaccurate information is or will be provided; or
(2) Fails to comply with a requirement of FCIC.
(c) When imposing any disqualification or civil fine:
(1) The gravity of the violation must be considered when determining:
(i) Whether to disqualify a participant or other person;
(ii) The amount of time that a participant or other person should be disqualified;
(iii) Whether to impose a civil fine; and
(iv) The amount of a civil fine that should be imposed.
(2) The gravity of the violation includes consideration of whether the violation was material and if it was material:
(i) The number or frequency of incidents or duration of the violation;
(ii) Whether there is a pattern or prior history of violation;
(iii) Whether and to what extent the person planned, initiated, or carried out the violation;
(iv) Whether the person has accepted responsibility for the violation and recognizes the seriousness of the misconduct that led to the cause for disqualification or civil fine;
(v) Whether the person has paid all civil and administrative liabilities for the violation;
(vi) Whether the person has cooperated fully with FCIC (In determining the extent of cooperation, FCIC may consider when the cooperation began and whether the person disclosed all pertinent information known to that person at the time);
(vii) Whether the violation was pervasive within the organization;
(viii) The kind of positions held by the persons involved in the violation;
(ix) Whether the organization took prompt, appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence;
(x) Whether the principals of the organization tolerated the offense;
(xi) Whether the person brought the violation to the attention of FCIC in a timely manner;
(xii) Whether the organization had effective standards of conduct and internal control systems in place at the time the violation occurred;
(xiii) Whether the organization has taken appropriate disciplinary action against the persons responsible for the violation;
(xiv) Whether the organization had adequate time to eliminate the violation that led to the cause for disqualification or civil fine;
(xv) Other factors that are appropriate to the circumstances of a particular case.
(3) The maximum term of disqualification and civil fines will be imposed against:
(i) Participants and other persons, except insurance providers who:
(A) Commit multiple violations in the same crop year or over several crop years; or
(B) Commit a single violation but such violation results in an overpayment of more than $100,000;
(ii) Approved insurance providers who:
(A) Commit a single violation resulting in an overpayment in excess of $100,000; and
(B) Commit multiple acts of violations resulting in an overpayment in excess of $500,000; and
(iii) Any participant or person who commits such other action or omission of so serious a nature that imposition of the maximum is appropriate.
(d) With respect to the imputing of conduct:
(1) The conduct of any officer, director, shareholder, partner, employee, or other individual associated with an organization, in violation of § 400.454(b) may be imputed to that organization when such conduct occurred in connection with the individual's performance of duties for or on behalf of that organization, or with the organization's knowledge, approval or acquiescence. The organization's acceptance of the benefits derived from the violation is evidence of knowledge, approval or acquiescence.
(2) The conduct of any organization in violation of § 400.454(b) may be imputed to an individual, or from one individual to another individual, if the individual to whom the improper conduct is imputed either participated in, knows, or had reason to know of such conduct.
(3) The conduct of one organization in violation of § 400.454(b) may be imputed to another organization when such conduct occurred in connection with a partnership, joint venture, joint application, association or similar arrangement, or when the organization to whom the improper conduct is imputed has the power to direct, manage, control or influence the activities of the organization responsible for the improper conduct. Acceptance of the benefits derived from the conduct is evidence of knowledge, approval or acquiescence.
(4) If such conduct is imputed, the person to whom the conduct is imputed to may be subject to the same disqualification and civil fines as the person from whom the conduct is imputed. The factors contained in § 400.454(c)(2) will be taken into consideration with respect to the person to whom the conduct is being imputed.
(e) With respect to disqualifications:
(1) If a person is disqualified and that person is a:
(i) Producer, the producer will be precluded from receiving any monetary or non-monetary benefit provided under all of the following authorities, or their successors:
(A) The Act;
(B) The Farm Security and Rural Investment Act of 2002 (7 U.S.C. 7333et seq.) or any successor statute;
(C) The Agricultural Act of 1949 (7 U.S.C. 1421et seq.) or any successor statute;
(D) The Commodity Credit Corporation Charter Act (15 U.S.C. 714et seq.) or any successor statute;
(E) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281et seq.) or any successor statute;
(F) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801et seq.) or any successor statute;
(G) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921, et seq.) or any successor statute; and
(H) Any federal law that provides assistance to the producer of an agricultural commodity affected by a crop loss or decline in the prices of agricultural commodities.
(ii) Participant or other person, other than a producer, such participant or person will be precluded from participating in any way in the Federal crop insurance program and receiving any monetary or non-monetary benefit under the Act.
(2) With respect to the term of disqualification:
(i) The minimum term will be not less than one year from the effective date determined in § 400.454(a)(2) ;
(ii) The maximum term will be not more than five years from the effective date determined in § 400.454(a)(2); and
(iii) Disqualification is to be imposed only in one-year increments, up to the maximum five years.
(3) Once a disqualification becomes final, the name, address, and other identifying information of the participant or other person shall be entered into the Ineligible Tracking System (ITS) maintained by FCIC in accordance with 7 CFR part 400, subpart U, and this information along with a list of the programs that the person is disqualified from shall be promptly reported to the General Services Administration for listing in the Excluded Parties List System (EPLS) in accordance with 7 CFR part 3017, subpart E.
(i) It is a participant's responsibility to periodically review the ITS and EPLS to determine those participants and other persons who have been disqualified.
(ii) No participant may conduct business with a disqualified participant or other person if such business directly relates to the Federal crop insurance program, or if, through the business relationship, the disqualified participant or other person will derive any monetary or non-monetary benefit from a program administered under the Act.
(iii) If a participant or other person does business with a disqualified participant or other person, such participant may be subject to disqualification under this section.
(iv) Continuing to make payments to a disqualified person to fulfill pre-existing contractual or statutory obligations after the business relationship is terminated will not be considered as doing business with a disqualified person unless such payment is used as a means to circumvent the disqualification process.
(f) With respect to civil fines:
(1) A civil fine may be imposed for each violation.
(2) The amount of such civil fine shall not exceed the greater of:
(i) The amount of monetary gain, or value of the benefit, obtained as a result of the false or inaccurate information provided, or the amount obtained as a result of noncompliance with a requirement of FCIC; or
(3) Civil fines are debts owed to FCIC.
(i) A civil fine that is either imposed under with this subpart, or agreed to through an executed settlement agreement with FCIC, must be paid by the specified due date. If the due date is not specified in the order issued by the Administrative Law Judge or Judicial Officer, as applicable, or the settlement agreement, it shall be 30 days after the date the order was issued or the settlement agreement signed by FCIC.
(ii) Any civil fine imposed under this section is in addition to any debt that may be owed to FCIC or to any approved insurance provider, such an overpaid indemnity, underpaid premium, or other amounts owed.
(iii) FCIC, in its sole discretion, may reduce or otherwise settle any civil fine imposed under this section whenever it considers it appropriate or in the best interest of the USDA.
(4) The ineligibility procedures established in 7 CFR part 400, subpart U are not applicable to ineligibility determinations made under this section for nonpayment of civil fines.
(5) If a civil fine has been imposed and the person has not made timely payment for the total amount due, the person is ineligible to participate in the Federal crop insurance program until the amount due is paid in full.
(g) With respect to any person that has been disqualified or is otherwise ineligible due to non-payment of civil fines in accordance with § 400.454(f) :
(1) With respect to producers:
(i) All existing insurance policies will automatically terminate as of the next termination date that occurs during the period of disqualification and while the civil fine remains unpaid;
(ii) No new policies can be purchased, and no current policies can be renewed, between the date that the producer is disqualified and the date that the disqualification ends; and
(iii) New application for insurance cannot be made for any agricultural commodity until the next sales closing date after the period of disqualification has ended and the civil fine is paid in full.
(2) With respect to all other persons:
(i) Such person may not be involved in any function related to the Federal crop insurance program during the disqualification or ineligibility period (including the sale, service, adjustment, data transmission or storage, reinsurance, etc. of any crop insurance policy) or receive any monetary or non-monetary benefit from a program administered under the Act.
(ii) If the person is an agent or insurance agency, the producers may cancel their policies sold and serviced by the disqualified agent and rewrite the policy with another agent. If the producer does not cancel and rewrite the policy with another agent, the approved insurance provider must assign the policies to a different agent or agency to service during the period of disqualification or ineligibility. Policies that have been assigned to another agent or agency by the insurance provider will revert back to the disqualified agent or agency after the period of disqualification has ended provided all civil fines are paid in full and the producer does not cancel and rewrite the policy with a different agent or agency;
(iii) If the person is an approved insurance provider, the approved insurance provider shall not sell, or authorize to be sold, any new policies or may not renew, or authorize the renewal of, existing policies, as determined by FCIC, during the period of disqualification or ineligibility. Nothing in this provision affects the approved insurance provider's responsibilities with respect to the service of existing policies.
(h) Imposition of disqualification or a civil fine under this section is in addition to any other administrative or legal remedies available under this section or other applicable law including, but not limited to, debarment and suspension.
[73 FR 76888, Dec. 18, 2008]
Title 7 published on 2012-01-01
no entries appear in the Federal Register after this date.
This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.