(a) To be considered eligible to receive payments with respect to a particular farming operation, a person or legal entity must be actively engaged in farming with respect to the operation.
(b) Actively engaged in farming means, except as otherwise provided in this part, that the person or legal entity:
(1) Independently and separately makes a significant contribution to a farming operation of:
(i) Capital, equipment, or land, or a combination of capital, equipment, or land and
(ii) Active personal labor or active personal management, or a combination of active personal labor and active personal management;
(2) Has a share of the profits or losses from the farming operation commensurate with the person's or legal entity's contributions to the operation; and
(3) Makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the person's or legal entity's claimed share of the farming operation.
(c) All of the following factors will be taken into consideration in determining if the person or legal entity is independently and separately contributing a significant amount of capital, equipment, or land, or a combination of capital, equipment, or land, to the farming operation:
(1) A separate and distinct interest in the land, crop, and livestock involved in the farming operation;
(2) The demonstration of separate and total responsibility for the interest in the land, crop, and livestock in the farming operation; and
(3) All funds and business accounts of the farming operation are separate from that of any other person and legal entity.
(d) In determining if the person or legal entity is independently and separately contributing a significant amount of active personal labor or active personal management, all of the following factors will be taken into consideration:
(1) The types of crops and livestock produced by the farming operation;
(2) The normal and customary farming practices of the area;
(3) The total amount of labor and management necessary for the farming operation in the area; and
(4) Whether the person or legal entity receives compensation for the labor and management activities.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
(a) A person will be considered to be actively engaged in farming with respect to a farming operation if:
(1) The person independently and separately makes a significant contribution to a farming operation of:
(i) Capital, equipment, or land, or a combination of capital, equipment, or land and
(ii) Active personal labor or active personal management, or a combination of active personal labor and active personal management;
(2) Has a share of the profits or losses from the farming operation commensurate with the person's or legal entity's contributions to the operation; and
(3) Makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the person's or legal entity's claimed share of the farming operation.
(b) If one spouse, or an estate of a deceased spouse, is determined to be actively engaged in farming as specified in paragraph (a) of this section, the other spouse is considered to have made a significant contribution, as specified in paragraph (a)(1)(ii) of this section, only to the same farming operation.
(c) If a farming operation is conducted by a person, and the capital, land, or equipment is contributed by the person, the capital, land, or equipment:
(1) To meet the requirements of paragraph (a)(1)(i) of this section, must be contributed directly by the person and must not be acquired as a result of a loan made to, guaranteed, co-signed, or secured by any other person, joint operation, or legal entity that has an interest in the farming operation; and
(2) To meet the requirements of paragraphs (a)(2) and (a)(3) of this section, and if acquired as a loan made to, guaranteed, co-signed, or secured by the persons, joint operations, or legal entities, the loan must:
(i) Bear the prevailing interest rate and
(ii) Have a repayment schedule considered reasonable and customary for the area.
[73 FR 79273, Dec. 29, 2008, as amended at 75 FR 900, Jan. 7, 2010; 85 FR 52039, Aug. 24, 2020]
(a) A member of a joint operation will be considered to be actively engaged in farming with respect to a farming operation if the member:
(1) Makes a significant contribution of:
(i) Capital, equipment, or land or a combination of capital, equipment, or land and
(ii) Active personal labor or active personal management, or a combination of active personal labor and active personal management, and that are:
(A) Performed on a regular basis,
(B) Identifiable and documentable, and
(C) Separate and distinct from the contributions of any other member of the farming operation;
(2) Has a share of the profits or losses from the farming operation commensurate with the member's contributions to the operation; and
(3) Makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the member's claimed share of the farming operation.
(b) For a farming operation conducted by a joint operation in which the capital, land, or equipment is contributed by the joint operation, the capital, land, or equipment:
(1) To meet the requirements of paragraph (a)(1)(i) of this section, and if contributed directly by the joint operation, must not be acquired as a loan made to, guaranteed, co-signed, or secured by any person, legal entity, or other joint operation that has an interest in the farming operation; and
(2) To meet the requirements of paragraphs (a)(2) and (3) of this section, and if acquired as a result of a loan made to, guaranteed, co-signed, or secured by the persons, legal entities, or joint operations with an interest in the operation, the loan must:
(i) Bear the prevailing interest rate and
(ii) Have a repayment schedule considered reasonable and customary for the area.
(c) If a joint operation separately makes a significant contribution of capital, equipment, or land, or a combination of capital, equipment, or land, and the joint operation meets the provisions of § 1400.201(b)(2) and (3), the members of the joint operation who make a significant contribution of active personal labor, active personal management, or a combination of active personal labor and active personal management to the farming operation as specified in paragraph (a)(1)(ii) of this section will be considered to be actively engaged in farming with respect to the farming operation.
[73 FR 79273, Dec. 29, 2008, as amended at 75 FR 900, Jan. 7, 2010; 85 FR 52039, Aug. 24, 2020]
(a) A limited partnership, limited liability partnership, limited liability company, corporation, or other similar legal entity will be considered to be actively engaged in farming with respect to a farming operation if:
(1) The legal entity independently and separately makes a significant contribution to the farming operation of capital, equipment, or land, or a combination of capital, equipment, or land;
(2) Each partner, stockholder, or member with an ownership interest or their spouse with an ownership interest makes a contribution, whether compensated or not compensated, of active personal labor, active personal management, or a combination of active personal labor and active personal management to the farming operation; that are:
(i) Performed on a regular basis;
(ii) Identifiable and documentable; and
(iii) Separate and distinct from the contributions of any other partner, stockholder or member of the farming operation;
(3) The collective contribution of the partners, stockholders and members is significant and commensurate;
(4) The legal entity has a share of the profits or losses from the farming operation commensurate with the legal entity's contributions to the operation; and
(5) The legal entity makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the legal entity's claimed share of the farming operation.
(b) If any partner, stockholder, or member fails to meet the requirements in paragraph (a)(2) of this section, any program payment and benefit subject to this subpart provided to the legal entity will be reduced by an amount commensurate with the ownership share held by that partner, stockholder, or member in the legal entity.
(c) An exception to paragraph (b) of this section will apply if:
(1) At least 50 percent of the stock is held by partners, stockholders, or members that are actively providing labor or management and
(2) The partners, stockholders, or members are collectively receiving, directly or indirectly, total payments equal to or less than one payment limitation.
(d) For a farming operation conducted by a legal entity in which the capital, land, or equipment is contributed by the legal entity, the capital, land, or equipment:
(1) To meet the requirements of paragraph (a)(1) of this section, must be contributed directly by the legal entity and must not be acquired as a loan made to, guaranteed, co-signed, or secured by any person, legal entity, or joint operation that has an interest in the farming operation, as defined in this part; and
(2) To meet the requirements of paragraphs (a)(4) and (a)(5) of this section, and if acquired as a result of a loan made to, guaranteed, co-signed, or secured by the persons, legal entities, or joint operations as defined, the loan must:
(i) Bear the prevailing interest rate and
(ii) Have a repayment schedule considered reasonable and customary for the area.
[73 FR 79273, Dec. 29, 2008, as amended at 75 FR 900, Jan. 7, 2010; 85 FR 52039, Aug. 24, 2020]
A trust will be considered to be actively engaged in farming with respect to a farming operation if:
(a) The trust independently and separately makes a significant contribution to the farming operation of capital, equipment, or land, or a combination of capital, equipment, or land;
(b) The income beneficiaries collectively make a significant contribution of active personal labor or active personal management, or a combination of active personal labor and active personal management to the farming operation. The combined interest of all the income beneficiaries providing active personal labor or active personal management, or a combination of active personal labor and active personal management, must be at least 50 percent;
(c) The trust has a share of the profits or losses from the farming operation commensurate with the legal entity's contributions to the operation;
(d) The trust makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the legal entity's claimed share of the farming operation;
(e) For a farming operation conducted by a trust in which the capital, land, or equipment is contributed by the trust, the capital, land, or equipment:
(1) To meet the requirements of paragraph (a) of this section, must be contributed directly by the trust and must not be acquired as a loan made to, guaranteed, co-signed, or secured by any person, legal entity, or joint operation that has an interest in the farming operation, as defined in this part; and
(2) To meet the requirements of paragraphs (c) and (d) of this section and if land, capital or equipment is acquired as a result of a loan made to, guaranteed, co-signed, or secured by the persons, legal entities, or joint operations as defined, the loan must:
(i) Bear the prevailing interest rate; and
(ii) Have a repayment schedule considered reasonable and customary for the area.
(f) The trust has provided a tax identification number of the trust unless the trust is a revocable trust and the grantor is the sole income beneficiary; and
(g) The trust has provided a copy of the trust agreement to the county committee unless the trust is a revocable trust.
[73 FR 79273, Dec. 29, 2008, as amended at 75 FR 900, Jan. 7, 2010; 85 FR 52039, Aug. 24, 2020]
(a) For 2 program years after the program year in which a person dies, the person's estate will be considered to be actively engaged in farming if:
(1) The estate, as a legal entity, makes a significant contribution of either:
(i) Capital, equipment, or land or
(ii) A combination of capital, equipment, or land; and
(2) The personal representative or heirs of the estate collectively make a significant contribution of either:
(i) Active personal labor or active personal management or
(ii) The combination of active personal labor and active personal management; and
(3) The estate has a share of the profits or losses from the farming operation commensurate with the legal entity's contributions to the operation;
(4) The estate makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the legal entity's claimed share of the farming operation; and
(5) The representative of the estate has provided a tax identification number for the estate and a copy of a court order, will, or other legal document that identifies the heir(s) and tax identification number(s) of the heir(s).
(b) For a farming operation conducted by an estate in which the capital, land, or equipment is contributed by the estate, the capital, land, or equipment:
(1) To meet the requirements of paragraph (a) of this section, must be contributed directly by the estate and must not be acquired as a loan made to, guaranteed, co-signed, or secured by any person, legal entity, or joint operation that has an interest in the farming operation, as defined in this part; and
(2) To meet the requirements of paragraphs (c)(3)and (a)(4) of this section, and if land, capital or equipment is acquired as a result of a loan made to, guaranteed, co-signed, or secured by the persons, legal entities, or joint operations as defined, the loan must:
(i) Bear the prevailing interest rate; and
(ii) Have a repayment schedule considered reasonable and customary for the area.
(c) After the period set forth in paragraph (a) of this section, the deceased person's estate will not be considered to be actively engaged in farming unless, on a case by case basis, the Deputy Administrator determines, for the purpose of obtaining program payments, that the estate has not been settled.
[73 FR 79273, Dec. 29, 2008, as amended at 75 FR 900, Jan. 7, 2010; 85 FR 52039, Aug. 24, 2020]
(a) A person or legal entity that is a landowner, including landowners with an undivided interest in land, making a significant contribution of owned land to the farming operation, will be considered to be actively engaged in farming with respect to the owned land, if the landowner:
(1) Receives rent or income for the use of the land based on the land's production or the operation's operating results;
(2) Has a share of the profits or losses from the farming operation commensurate with the landowner's contributions to the operation; and
(3) Makes contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the landowner's claimed share of the farming operation.
(b) A landowner also includes a member of a joint operation if the joint operation holds title to land in the name of the joint operation and if the joint operation or its members submit adequate documentation to determine that, upon dissolution of the joint operation, the title to the land owned by the joint operation will revert to the member of the joint operation.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
(a) Notwithstanding the provisions of §§ 1400.201 through 1400.206, with respect to a farming operation conducted by persons, a majority of whom are family members, an adult family member who makes a significant contribution of active personal labor, active personal management, or a combination of active personal labor and active personal management will be considered to be actively engaged in farming if the adult family member meets the provisions in paragraph (b) of this section.
(b) An adult family member who elects to be considered actively engaged in farming under this section must:
(1) Have a share of the profits or losses from the farming operation commensurate with the person's contributions to the operation and
(2) Make contributions to the farming operation that are at risk for a loss, with the level of risk being commensurate with the person's claimed share of the farming operation.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
(a) Notwithstanding the provisions of §§ 1400.201 through 1400.206 of this part, with respect to a person who is a sharecropper, the person will be considered to be actively engaged in farming if the sharecropper meets the provisions of paragraph (b) of this section.
(b) A sharecropper who elects to be considered actively engaged in farming under this section must:
(1) Make a significant contribution of active personal labor to the farming operation;
(2) Have a share of the profits or losses from the farming operation commensurate with the person's contribution to the operation; and
(3) Make a contribution to the farming operation that is at risk for a loss, with the level of risk being commensurate with the person's claimed share of the farming operation.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
If the person dies or is incapacitated before a determination is made that the person is “actively engaged in farming,” the representative of the deceased person's estate or the incapacitated person, or other person if necessary, must provide the determining authority information to verify that the person did make a conscious effort to and would have been determined to be actively engaged in farming if not for the person's death or incapacitation. If the person dies or is incapacitated after being determined to be “actively engaged in farming,” the determining authority will allow the determination to be in effect for that program year or fiscal year, as applicable. However, the following year the person or the person's estate must meet all necessary requirements in order to be determined to be “actively engaged in farming” for that year.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
Any person or legal entity that does not satisfy all of the applicable provisions of §§ 1400.201 through 1400.210 and a landowner who rents land to a farming operation for cash or a crop share guaranteed as to the amount of the commodity will not be considered to be actively engaged in farming with respect to the farming operation.
The existence of a hybrid seed contract for a person or legal entity will not be taken into account when making an actively engaged in farming determination with respect to the person or legal entity. However, the person or legal entity must satisfy all other applicable provisions of this part.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
If a person is called to active duty in the military before a determination is made that the person is actively engaged in farming, the person may be considered to be actively engaged in farming if the determining authority determines that the person did make a conscious effort to, and would have been determined to be, actively engaged in farming if the person would not have been called to active duty. If the person is called to active duty after being determined to be actively engaged in farming, the determination will remain in effect for the program year.
[73 FR 79273, Dec. 29, 2008, as amended at 85 FR 52039, Aug. 24, 2020]
(a) Any tenant that is actively engaged in farming in accordance with the provisions of this subpart and conducts a farming operation in which the tenant rents the land for cash, for a crop share guaranteed as to the amount of the commodity, or by any arrangement in which the tenant does not compensate the landlord by cash or a crop share, and receives benefits, with respect to the land under a program specified in § 1400.1(a)(1) and (2) will not be eligible to receive any payment with respect to the cash-rented land unless the tenant independently makes a significant contribution to the farming operation of:
(1) Active personal labor; or
(2) Significant contributions of both active personal management and equipment.
(b) If the equipment is leased by the tenant from:
(1) The landlord, then the lease must reflect the fair market value of the equipment leased with a payment schedule considered reasonable and customary for the area; or
(2) The same person or legal entity that is providing hired labor to the farming operation, then the contracts for the lease of the equipment and for the hired labor must be two separate contracts.
(c) If the equipment is leased by the tenant from the landlord, or from the same person or legal entity that is providing hired labor to the farming operation, then the tenant must exercise complete control over the leased equipment during the entire current crop year. Complete control is defined as exclusive access and use by the tenant.
(d) If the cash rent tenant is a joint operation, then each member or their spouse must make a significant contribution of active personal labor or active personal management as specified in § 1400.203(a)(1)(ii) to be considered eligible for the member's share of the program payments received by the joint operation on the cash rented land.
(e) If the cash rent tenant is a legal entity, then a significant contribution of active personal labor or active personal management must be made to the legal entity as specified in § 1400.204(a)(2) for the legal entity to be considered eligible for the program payments on the cash rented land.
[85 FR 52040, Aug. 24, 2020]