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contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

32049 

Vol. 74, No. 128 

Tuesday, July 7, 2009 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 246 

RIN 0584–AD73 

[FNS–2007–0009] 

Special Supplemental Nutrition 

Program for Women, Infants and 

Children (WIC): Implementation of 

Nondiscretionary WIC Certification and 

General Administrative Provisions 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: This is an affirmation by the 

Department of a final rule, without 

change, of an interim rule that amended 

the regulations for the Special 

Supplemental Nutrition Program for 

Women, Infants and Children (WIC) by 

implementing most of the 

nondiscretionary provisions of the Child 

Nutrition and WIC Reauthorization Act 

of 2004 that address participant 

certification and general program 

administration in the WIC Program. The 

rule implements the exclusions from 

income eligibility determinations set 

forth in the National Defense 

Authorization Act for Fiscal Year (FY) 

2006 and in the National Flood 

Insurance Act of 1968, as amended, and 

clarifies an inconsistency related to fair 

hearings and notices of adverse actions 

that was inadvertently omitted in the 

publication of the Final WIC 

Miscellaneous Rule. Finally, this 

rulemaking includes technical 

amendments to correct the address and 

telephone numbers to which complaints 

alleging discrimination in the WIC 

Program should be directed, and to 

correct the address of the Western 

Regional Office of the Food and 

Nutrition Service (FNS). The interim 

rule was necessary to implement the 

non-discretionary provisions of this law. 

DATES: Effective on July 7, 2009, the 

Department is adopting as a final rule 

the interim rule published at 73 FR 

11305 on March 3, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Debra R. Whitford, Chief, Policy and 

Program Development Branch, 

Supplemental Food Programs Division, 

Food and Nutrition Service, USDA, 

3101 Park Center Drive, Room 528, 

Alexandria, VA 22302, (703) 305–2746, 

or Debbie.Whitford@fns.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On, March 3, 2008, the Department 

published an interim rule implementing 

most of the nondiscretionary provisions 

of the Child Nutrition and WIC 

Reauthorization Act of 2004, in addition 

to provisions from the National Defense 

and Authorization Act of 2004 and the 

National Flood Insurance Act of 1968. 

The revisions address participant 

certification and general program 

administration in the WIC Program. 

While most of the provisions in the 

interim rule were implemented exactly 

as written in the law, the Department 

believed the provision related to Statepaid EBT costs might be somewhat 

confusing to State agencies. Comments 

were invited on that provision in an 

effort to explain its implementation 

more fully. 

The comment period ended on June 2, 

2008. Only one comment letter was 

submitted during the comment period. 

The regulatory provisions addressed in 

that letter pertained only to the 

nondiscretionary provisions set forth in 

the interim rule. Because the 

nondiscretionary provisions have been 

implemented as set forth in the law, 

they are retained as written in this final 

rule. 

For reasons given in the interim rule, 

the Department is adopting the interim 

rule as a final rule without change. 

This action also affirms information 

contained in the interim rule concerning 

Executive Order 12866, the Regulatory 

Flexibility Act, Executive Order 12988, 

and the Paperwork Reduction Act. 

Further, for this action, the Office of 

Management and Budget has waived its 

review under Executive Order 12866. 

List of Subjects in 7 CFR Part 246 

Food assistance programs, Food 

donations, Grant programs—Social 

programs, Indians, Infants and children, 

Maternal and child health, 

Nondiscrimination, Nutrition education, 

Public assistance programs, WIC, 

Women. 

PART 246—SPECIAL SUPPLEMENTAL 

NUTRITION PROGRAM FOR WOMEN, 

INFANTS AND CHILDREN 

■ Accordingly, the Department is 

adopting as a final rule, without change, 

the interim rule that amended 7 CFR 

part 246 and was published at 73 FR 

11305 on March 3, 2008. 

Dated: June 29, 2009. 

Julia Paradis, 

Administrator, Food and Nutrition Service. 

[FR Doc. E9–15968 Filed 7–6–09; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Federal Crop Insurance Corporation 

7 CFR Part 457 

RIN 0563–AC09 

Common Crop Insurance Regulations; 

Grape Crop Insurance Provisions and 

Table Grape Crop Insurance 

Provisions 

AGENCY: Federal Crop Insurance 

Corporation, USDA. 

ACTION: Final rule. 

SUMMARY: The Federal Crop Insurance 

Corporation (FCIC) finalizes 

amendments to the Common Crop 

Insurance Regulations, Grape Crop 

Insurance Provisions and Table Grape 

Crop Insurance Provisions. The 

intended effect of this action is to 

provide policy changes and clarify 

existing policy provisions to better meet 

the needs of insured producers, and to 

reduce vulnerability to fraud, waste, or 

abuse. 

DATES: Effective Date: This rule is 

effective August 6, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Lopez, Risk Management 

Specialist, Product Management, 

Product Administration and Standards 

Division, Risk Management Agency, 

United States Department of 

Agriculture, Beacon Facility, Stop 0812, 

32050 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 

Room 421, P.O. Box 419205, Kansas 

City, MO 64141–6205, telephone (816) 

926–7730. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

non-significant for the purpose of 

Executive Order 12866 and, therefore, it 

has not been reviewed by OMB. 

Paperwork Reduction Act of 1995 

Pursuant to the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. chapter 35), the collections of 

information in this rule have been 

approved by OMB under control 

number 0563–0053 through March 31, 

2012. 

E-Government Act Compliance 

FCIC is committed to complying with 

the E-Government Act of 2002, to 

promote the use of the Internet and 

other information technologies to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. 

Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) establishes 

requirements for Federal agencies to 

assess the effects of their regulatory 

actions on State, local, and Tribal 

governments and the private sector. 

This rule contains no Federal mandates 

(under the regulatory provisions of title 

II of the UMRA) for State, local, and 

Tribal governments or the private sector. 

Therefore, this rule is not subject to the 

requirements of sections 202 and 205 of 

UMRA. 

Executive Order 13132 

It has been determined under section 

1(a) of Executive Order 13132, 

Federalism, that this rule does not have 

sufficient implications to warrant 

consultation with the States. The 

provisions contained in this rule will 

not have a substantial direct effect on 

States, or on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government. 

Regulatory Flexibility Act 

FCIC certifies that this regulation will 

not have a significant economic impact 

on a substantial number of small 

entities. Program requirements for the 

Federal crop insurance program are the 

same for all producers regardless of the 

size of their farming operation. For 

instance, all producers are required to 

submit an application and acreage 

report to establish their insurance 

guarantees and compute premium 

amounts, and all producers are required 

to submit a notice of loss and 

production information to determine the 

amount of an indemnity payment in the 

event of an insured cause of crop loss. 

Whether a producer has 10 acres or 

1,000 acres, there is no difference in the 

kind of information collected. To ensure 

crop insurance is available to small 

entities, the Federal Crop Insurance Act 

authorizes FCIC to waive collection of 

administrative fees from limited 

resource farmers. FCIC believes this 

waiver helps to ensure that small 

entities are given the same opportunities 

as large entities to manage their risks 

through the use of crop insurance. A 

Regulatory Flexibility Analysis has not 

been prepared since this regulation does 

not have an impact on small entities, 

and therefore, this regulation is exempt 

from the provisions of the Regulatory 

Flexibility Act (5 U.S.C. 605). 

Federal Assistance Program 

This program is listed in the Catalog 

of Federal Domestic Assistance under 

No. 10.450. 

Executive Order 12372 

This program is not subject to the 

provisions of Executive Order 12372, 

which require intergovernmental 

consultation with State and local 

officials. See the Notice related to 7 CFR 

part 3015, subpart V, published at 48 FR 

29115, June 24, 1983. 

Executive Order 12988 

This rule has been reviewed in 

accordance with Executive Order 12988 

on civil justice reform. The provisions 

of this rule will not have a retroactive 

effect. The provisions of this rule will 

preempt State and local laws to the 

extent such State and local laws are 

inconsistent herewith. With respect to 

any direct action taken by FCIC or to 

require the insurance provider to take 

specific action under the terms of the 

crop insurance policy, the 

administrative appeal provisions 

published at 7 CFR part 11 must be 

exhausted before any action against 

FCIC for judicial review may be brought. 

Environmental Evaluation 

This action is not expected to have a 

significant economic impact on the 

quality of the human environment, 

health, or safety. Therefore, neither an 

Environmental Assessment nor an 

Environmental Impact Statement is 

needed. 

Background 

On February 29, 2008, FCIC published 

a notice of proposed rulemaking in the 

Federal Register at 73 FR 11054–11060 

to revise 7 CFR 457.138 Grape crop 

insurance provisions and 7 CFR 457.149 

Table grape crop insurance provisions. 

Following publication of the proposed 

rule, the public was afforded 60 days to 

submit written comments and opinions. 

A total of 29 comments were received 

from 8 commenters. The commenters 

were reinsured companies, trade 

associations and an insurance service 

organization. The comments received 

and FCIC’s responses are as follows: 

Grape Crop Provisions 

Some of the comments received 

pertained to both the Grape Crop 

Provisions and Table Grape Crop 

Provisions. In those cases, the responses 

will be provided under the Grape Crop 

Provisions with a note indicating when 

the Table Grape Crop Provisions are also 

impacted. 

Comment: A few commenters 

expressed concern regarding insurable 

grape and table grape varieties in 

Arizona and California and the possible 

impact of changing the term ‘‘varietal 

group’’ to ‘‘type’’ throughout the policy. 

In California, there is a type for ‘‘Other 

Varieties’’. This type is for all varieties 

not listed individually in the Special 

Provisions. The provisions allow the 

insured the option to insure one or more 

varieties under this type. The varieties 

insured under this type qualify for a 

separate basic unit. All varieties under 

this type must have the same coverage 

level and price election percentage, but 

would qualify for one single 

administrative fee as type, ‘‘Other 

Varieties’’, are not recognized as a 

separate crop in regards to 

administrative fees. The commenters 

further stated that in light of the 

increasing number of varieties being 

insured under this type, a separate 

administrative fee should be charged for 

‘‘Other Varieties’’. In addition, changing 

‘‘variety’’ to ‘‘type’’ could impact 

varieties currently being insured under 

this type. Any change in terminology 

needs to take into consideration the 

impacts involved in insuring different 

varieties under type 095 in California. 

Response: Provisions that allow 

insurance to be selected by variety have 

been retained for Arizona and 

California. Producers will still be able to 

select insurance coverage levels by 

variety except for those varieties that 

fall under type 095 (other varieties). All 

varieties listed under type 095 must 

have the same price election and 

coverage level percentage. For example, 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 32051 

if a producer selects to insure three 

varieties under type 095, and selected 

80 percent of the maximum price 

election and 75 percent of the coverage 

level for the first variety under type 095, 

the remaining two varieties under type 

095 must have the same price election 

and coverage level percentage as the 

first. RMA reviewed the California 2007 

crop year to determine the number of 

policies that included multiple varieties 

under type 095 and found 

approximately 53 grape policies with 

multiple varieties under type 095. This 

is only 1 percent of the total grape 

policies (4,439). Because such a small 

percentage of policies are impacted and 

there is only an average of 15 acres of 

each variety under type 095 in each 

policy, RMA determined it is not cost 

effective to make all the computer 

system changes necessary to charge a 

separate administrative fee for each 

grape variety that falls under type 095. 

In addition, a definition of ‘‘variety’’ has 

been included in both the Crop 

Provisions to clarify the term. 

Comment: A few commenters stated 

that in states other than Arizona and 

California, it is common for different 

varieties/types of grapes to be grouped 

into different varietal groups, which are 

now being eliminated and being referred 

to as different types. Since there are 

many different new varieties/types that 

are always being developed, the 

commenter would like to recommend 

that the Special Provisions be clear and 

specific in defining the different types 

so that it is easy to determine the proper 

category for these new varieties. 

Response: The Special Provisions will 

be clear and specific in defining the 

types. The Special Provisions will 

clearly indicate that for California and 

Arizona a ‘‘type’’ will consist of a 

variety, with the exception of type 095 

(other varieties). For all other states, a 

‘‘type’’ will consist of one or more 

varieties identified as a type on the 

Special Provisions, (i.e., type 083 may 

include the Merlot variety and all other 

varieties not specifically named on the 

Special Provisions). 

Comment: A few commenters 

questioned whether the replacement of 

‘‘varietal group’’ with ‘‘type’’ was one of 

terminology or whether there other 

differences as well. There are no 

references to what a ‘‘type’’ will consist 

of within a given state or region. The 

new term ‘‘type’’ is used to identify the 

varieties grouped together in the 

actuarial documents for all states except 

Arizona and California for rating and 

optional unit purposes. The commenters 

ask if it is similar to the current varietal 

group in these states/regions. The 

terminology for Arizona and California 

throughout the Crop Provisions is 

‘‘variety’’ or ‘‘grape variety’’, however, 

section 1(g) if the Proposed Rule 

Background on page 11055 states that 

‘‘* * * (each variety in California 

constitutes a type) * * *’’ and the 2008 

actuarial documents for California use 

the term ‘‘type’’. The commenters ask if 

it would be possible to use the term 

‘‘type’’ for all states rather than having 

to distinguish between ‘‘variety’’ 

(Arizona and California) and ‘‘type’’ (all 

other states) throughout. This also 

would help avoid confusion with the 

use ‘‘variety’’ instead of ‘‘type’’ along 

with ‘‘practice’’ in the actuarial 

documents. If Arizona and California 

continue to use ‘‘variety’’ instead of 

‘‘type’’, presumably the terminology in 

the actuarial documents for Arizona and 

California will be changed from ‘‘types’’ 

to ‘‘varieties’’, while terminology in 

other states will be changed from 

‘‘varietal group’’ to ‘‘type’’. 

Response: The actuarial document 

will still use the term ‘‘type’’. Type is 

defined in the Crop Provisions as, ‘‘A 

category of grapes (one or more 

varieties) identified as a type in the 

Special Provisions’’. In California and 

Arizona each variety is a separate type 

except for type 095 as explained above. 

In these two states the term ‘‘variety’’ 

must still be used to allow producers to 

select the varieties they wish to insure 

within type 095. For all other states 

covered under the Grape Crop 

Provisions, the term ‘‘type’’ is simply a 

replacement for the term ‘‘varietal 

group’’. The Table Grape Crop 

Provisions will now also include the 

term ‘‘type’’. 

Comment: A few commenters asked 

that FCIC consider including a 

definition of ‘‘variety’’ to clarify the 

difference between ‘‘types’’ and 

‘‘varieties’’. Otherwise, the reference to 

‘‘each variety’’ in section 2(a)(1) [for 

Arizona and California] could lead to 

confusion as to whether or not it is the 

same as ‘‘type’’ as defined. 

Response: FCIC has included in both 

Grape Crop Provisions and Table Grape 

Crop Provisions a definition of 

‘‘variety.’’ 

Comment: A few comments were 

received regarding unit division. In the 

states of Arizona and California, basic 

units are divided into additional basic 

units by each variety insured. The 

commenters state that since section 7 

states the insured crop will be any 

insurable variety that the producer 

elects to insure in these states, section 

2(a)(1) may not be necessary. If each 

variety is insured as a separate crop, it 

is already a separate basic unit even 

before establishing any basic units for 

different share arrangements. However, 

it may be helpful to include some 

reference in section 2 to the different 

basic unit qualifications in Arizona and 

California. The following is suggested 

language, ‘‘Basic units are established 

for each variety that you choose to 

insure, and also defined in section 1 of 

the Basic Provisions.’’ 

Response: Unit structure and 

insurability are two different things and 

should be treated separately. Therefore, 

while section 2(a)(1) may not be strictly 

necessary, it is provided to clarify that 

while each variety is treated as a 

separate crop to allow producers to elect 

which variety they want to insure, all 

insured varieties are still covered under 

one grape policy with separate basic 

units provided. No change has been 

made. 

Comment: A few commenters stated 

there is no mention of acreage insured 

under organic farming practices in 

provisions dealing with unit division. 

Clarification is needed to determine 

whether optional units are allowed for 

organic practices. 

Response: In Arizona and California, 

optional units may be established if 

each optional unit is located on noncontiguous land. In addition, optional 

units may be provided for acreage 

grown and insured under an organic 

farming practice. In all other states, 

optional units may be established in 

accordance with section 34 of the Basic 

Provisions, which includes optional 

units for organic acreage, and as 

provided for in the Grape Crop 

Provisions. Both the Grape Crop 

Provisions and the Table Grape Crop 

Provisions have been clarified 

accordingly. 

Comment: A few comments were 

received regarding the phrase in section 

2(b)(2) ‘‘* * * when separate types are 

specified in the Special Provisions’’. 

The commenters ask if ‘‘separate type’’ 

is different from a ‘‘type’’ and does it 

need to be defined in section 1. 

Response: ‘‘Separate type’’ does not to 

be defined. In this case, ‘‘separate’’ is 

given its common meaning, which 

means that optional units can be 

established by each different (or 

individual) type listed in the Special 

Provisions. 

Comment: A few comments were 

received regarding clarification of 

sections 3(a) and (b). In Arizona and 

California, addition of the phrase 

‘‘* * * you elect to insure’’ in 3(a) 

would clarify that each variety is 

considered a separate crop, and it may 

not be necessary to mention ‘‘in the 

county’’, though it is for 3(b), which is 

further clarified as having the same 

level and price percentage for all grapes 

in the county, regardless of variety. 

32052 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 

Response: The phrase ‘‘you elect to 

insure’’ should be added in section 3(a). 

The language regarding ‘‘in the county’’ 

should be consistent in both 3(a) and (b) 

and therefore, will be added to section 

3. These same changes have also been 

made in the Table Grape Crop 

Provisions to maintain consistency 

between the policies. 

Comment: A few commenters 

expressed concern with the removal of 

the language currently in section 3(c) 

that would allow insureds in all states 

(not just Arizona and California) to 

select different price election 

percentages by type, though this was not 

identified as a change in the Proposed 

Rule. 

Response: The proposed provision in 

section 3(b) allows insureds in all states 

to choose a different price election 

percentage for each type. This proposal 

was described in the Proposed Rule on 

page 11055. In addition, FCIC has also 

removed section 3(c) (in the current 

policy), which required the same 

percentage relationship to the maximum 

price offered for each varietal group, so 

that different price election percentage 

could be selected by type. 

Comment: A few commenters 

questioned the removal of section 3(c), 

stating it would result in a significant 

change, allowing grape insureds in all 

states (not just Arizona and California) 

to choose different price election 

percentages by type. They further stated 

this would be problematic in the other 

states since different types are not 

treated as separate crops, but are 

potentially separate optional units that 

could end up being combined if the 

optional unit requirements are not met. 

Also, new types could be added on the 

acreage report (because all grapes in the 

county must be insured), when it is after 

the sales closing date deadline to select 

a price percentage. If this is the intent, 

the language needs clarification. The 

commenters also stated they do not 

agree with the intended effect of the 

revised provision. They suggested that 

the policyholder continue to be allowed 

to choose a single price election 

percentage and coverage level on a 

county basis and all insurable types in 

the county would be insured on this 

basis. 

Response: It should not be a problem 

if there are different coverage levels and 

price election percentages for separate 

types provided the application contains 

the selected coverage levels and price 

election percentages. Further, 

clarification has been added to section 

3(b) of the Grape Crop Provisions and 

Table Grape Crop Provisions regarding 

percentage relationship to the maximum 

price election. Additionally, FCIC has 

added a new section 3(c) to both Grape 

Crop Provisions and Table Grape Crop 

Provisions (and redesignated the 

following sections) to account for cases 

where a new type is added after the 

application is received. This provision 

states that if the producer acquires a 

share in any grape acreage after the 

application is submitted, provided such 

acreage is insurable under the terms of 

the policy and the producer did not 

include the grape type on the 

application, the insurance provider will 

assign a coverage level and price 

election percentage. The assigned 

coverage level will be the lowest 

coverage level selected for any other 

grape type along with the corresponding 

price election percentage. 

Comment: A few of the commenters 

expressed concerns regarding the 

possible use of a contract price. This is 

already allowed by the Special 

Provisions in California, but would be 

new in the Crop Provisions, which 

would allow for the possibility for this 

to be extended to other states as well. 

Care must be taken to make sure that all 

necessary information is included in the 

Crop Provisions, while not overcomplicating it. 

Response: Provisions regarding the 

use of a contract price when allowed by 

Special Provisions will include 

information on how to determine the 

contract price if more than one contract 

exists, and a maximum price which the 

contract price cannot exceed. 

Comment: A few comments were 

submitted regarding the use of a price 

election based on a contract price if 

allowed by the Special Provisions. The 

commenters asked that FCIC consider 

the ramifications of contract prices 

coexisting with non-contract prices. In 

addition, the commenters asked that 

FCIC consider including a definition 

under section 1 so that other references 

to ‘‘price election’’ would include the 

possibility of a contract price basis. 

‘‘Price election’’ should be defined, and 

some type of limit should be placed on 

the price election for grapes under 

contract. The commenter asked what 

would the price election be (for a grape 

type in the county in states other than 

Arizona and California) if there is a 

contract price on some grapes types but 

not others or if there are multiple 

contract prices within a unit. It is quite 

possible that one variety is insured 

under contract while another is not. In 

such cases, there is a need to specify 

what price election is used. Clarification 

is needed to specify that the price 

election will be based on the contact 

price but the actual price election will 

be limited to the terms stated in the 

Special Provisions. Additionally, 

determination of an indemnity in 

section 12 needs to be clearly illustrated 

in such situations. 

Response: It is not necessary to 

redefine ‘‘price election’’ in section 1 

because the provision in redesignated 

section 3(d) indicates a contract price 

election may be used instead of the 

published price election. It is not 

necessary to add an example in section 

12 because the provisions already 

address situations in which multiple 

price elections are applicable. The 

provisions regarding use of a contract 

price, when allowed by Special 

Provisions, will include information 

regarding calculation of a weighted 

average price if more than one price 

election exists, and a maximum price 

which the contract price cannot exceed. 

All of the necessary information will be 

included in the Special Provisions 

statement. 

Comment: A few commenters noted 

the reference to adjusting the approved 

yield in redesignated section 3(d) is not 

relevant without adding the reason for 

which production will be reduced. The 

preamble of the Proposed Rule states 

that this was added as some contracts 

require the use of cultural practices to 

produce fewer tons of grapes. The 

commenters recommend revising the 

last sentence of 3(d) to clarify that the 

reduction to the approved yield will be 

based on redesignated 3(f): ‘‘* * * In 

the event any contract requires the use 

of a cultural practice that will reduce 

the amount of production from any 

insured acreage, your approved yield 

will be adjusted in accordance with 

section 3(f).’’ 

Response: FCIC has added the reason 

the yield will be reduced. Redesignated 

section 3(d) will also reference 

redesignated section 3(g) because these 

sections state yields will be reduced to 

reflect changes in practices or other 

circumstances. 

Comment: A few commenters stated 

that proposed section 3(f) (redesignated 

3(g)), repeats what was stated in 

proposed sections 3(e)(1) and (4) 

(redesignated 3(f)(1) and (4)), and that it 

may ease in reading if those sections 

were referenced instead of duplicating. 

Response: The provisions are 

duplicative and FCIC has revised the 

provisions in the Grapes Crop 

Provisions and Table Grape Crop 

Provisions accordingly. 

Comment: A few commenters 

suggested a revision to the last sentence 

in section 3(f) (redesignated section 

3(g)), to include: ‘‘* * * If you fail to 

notify us of any circumstance that may 

reduce your yields from previous levels, 

we will reduce your guarantee or assess 

uninsured cause of loss against your 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 32053 

claim at any time we become aware of 

the circumstance.’’ Growers have a 

responsibility to report to the insurance 

provider damage, removal of vines, etc. 

If they report it timely, the insurance 

provider can adjust the guarantee and 

premium. There should be a penalty if 

they do not report this information 

timely and it is discovered by the 

adjuster at claim time. Currently there is 

no penalty, so there is little incentive to 

report the information timely. 

Response: Assessing an uninsured 

cause of loss against the claim was not 

in the proposed rule, the public was not 

provided an opportunity to comment on 

the recommended change, and 

therefore, the recommendation cannot 

be incorporated in the final rule. No 

change has been made. 

Comment: A few commenters 

questioned the proposed language used 

in section 3(g) (redesignated section 

3(h)). The commenters were not sure if 

any other Crop Provisions use the 

phrase ‘‘the ratio of your price election 

to the maximum price election we offer’’ 

rather than the phrasing that has been 

dropped from the current Grape Crop 

Provisions section 3(c) that states ‘‘the 

same percentage relationship to the 

maximum price offered by us’’. The 

commenters also questioned the 

reference to ‘‘the maximum price 

election we offer’’ since ‘‘we’’ refers to 

the insurance provider while the price 

elections are determined and offered by 

RMA [though it can be understood that 

the insurance provider is offering the 

coverage, including the price election, 

to the insured]. In addition, the 

commenters requested clarification on 

what is meant by ‘‘* * * if a cause of 

loss * * * is evident prior to the time 

that you request the increase.’’ A cause 

of loss that occurred the previous crop 

year would be ‘‘prior to the time that 

you request the increase.’’ The 

commenter asked FCIC consider 

rewriting the provision similar to the 

following: ‘‘Your request to increase the 

coverage level or price election 

percentage will not be accepted if a 

cause of loss that could or would reduce 

the yield of the insured crop is evident 

when your request is made.’’ 

Response: FCIC has changed language 

in redesignated 3(h). The phrase ‘‘the 

ratio of your price election to the 

maximum price election we offer’’ has 

been deleted. The provision will now 

include the recommended language. 

This same change has been made in the 

Table Grape Crop Provisions. 

Comment: A few commenters 

questioned the language under section 

6. They commented that the phrase, ‘‘In 

all other states, by each grape type you 

insure,’’ sounds as though insureds in 

the other states can choose to insure 

some but not all types as in California, 

which is not the case. The commenters 

recommended ending section (b) after 

the word ‘‘type’’ or to consider whether 

this requires a distinction between 

states. Perhaps section 6 could read 

simply: ‘‘* * * you must report your 

acreage by grape type or variety, as 

applicable.’’ 

Response: Section 6(b) needs to be 

clarified so FCIC changed the provisions 

to state reporting is required ‘‘by each 

grape type’’. The Table Grape Crop 

Provisions have also been revised so the 

provisions will be consistent. 

Comment: A few comments were 

received regarding Settlement of Claim 

and the quality adjustment for mature 

marketable grapes. Due to the increasing 

amount of wine grape acreage in 

production, wineries have increased the 

sugar percent thresholds in their 

contracts. This has allowed buyers to be 

very selective in the grapes they will 

purchase. The effect of this on grape 

crop insurance is in determining market 

prices and the values for the quality 

adjustment procedure in 12(e). For 

example, if the market price of the wine 

grapes in the area is based primarily on 

sugar content that the producer’s wine 

grape production does not normally 

meet, the commenters asks how is the 

market price and value to be 

determined. In many cases, there is no 

means of determining if the damage 

caused a drop in the sugar percentage. 

If the sugar content were higher, the 

value of the grape would be greater and 

the producer may not even feel 

compelled to file a claim. In years where 

production is low, the buyers do not 

place such emphasis on the sugar 

content and this is a non-issue. This 

fluctuation in market demand causes 

many issues in determining values and 

adjusting for quality for wine grapes, 

though it may also be an issue for juice 

grapes. 

The commenters recommend that a 

standard minimum sugar percentage be 

included in the determination of the 

market price and value. Doing so sets a 

limit to the amount of quality 

adjustment that can be made when 

market prices and values are based on 

sugar content, and if market prices are 

not based on sugar content, the quality 

adjustment is not affected. Crop 

insurance should pay for damaged 

production but caution is needed when 

determining values based on 

marketability and market demand. 

Failure to add a limit can result in 

quality adjustments that are not related 

to the insured cause of damage. The 

Grape Crop Provisions must include 

language to control the potential for 

abuse. The commenters suggested 

revising the section to include the 

following: ‘‘Grapes produced for the 

production of wine or juice will only be 

eligible for quality adjustment due to an 

insured cause of loss that results in the 

grapes having a sugar level below 17 

percent. Grapes with an insurable 

damage that fail to meet or exceed 17 

percent sugar will be adjusted for 

quality based on the market value for a 

sugar content of not less than 17 percent 

for undamaged grapes.’’ 

Response: Quality adjustment is 

applicable only if the reduction in value 

is due to an insurable cause of loss, such 

as adverse weather. If low brix levels or 

other damage are due to an insurable 

cause of loss, the grapes may be eligible 

for quality adjustment provided that 

they qualify under section 12(e) of the 

Grape Provisions. According to AMS 

standards, brix level is an indication of 

maturity in some table and juice grapes, 

however, there are no such published 

standards for wine grapes. Therefore, 

FCIC does not have information 

necessary to establish standard brix 

levels for the various wine grape 

varieties and growing areas. No change 

has been made. 

Comment: A few commenters stated 

that language in the preamble regarding 

quality adjustment (page 11056) did not 

match language in the proposed Crop 

Provisions section 12(e)(2)(i). The 

preamble stated, ‘‘* * * FCIC is 

proposing that the value per ton of the 

damaged grapes will be divided by the 

value per ton for undamaged grapes. 

The value of undamaged grapes will not 

exceed the maximum price election for 

such grapes. This will ensure that the 

undamaged grapes are not over-valued.’’ 

The Crop Provisions state, ‘‘Dividing the 

value per ton of the damaged grapes by 

the value per ton for undamaged grapes 

(the value of undamaged grapes will be 

the lesser of the average market price or 

the maximum price election for such 

grapes) * * *’’ 

Response: The language in the 

preamble was not consistent with the 

policy provision. The preamble was 

incorrect and it should have referred to 

the lesser of the average market price or 

the maximum price election for such 

grapes. This ensures the grapes are not 

overinsured. 

Comment: A commenter stated that 

while in favor of the proposed changes, 

the following provisions should also be 

added: (1) Grape crop insurance should 

be available in all Texas counties 

covered by an American Viticulture 

Area; (2) crop insurance by variety 

should also be provided in Texas. 

Response: Grape insurance is 

currently available in several Texas 

32054 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 

counties, and coverage in counties 

without the grape insurance program 

can be requested by written agreement. 

If the commenter has specific counties 

where they would like grape insurance, 

the commenter may make a request to 

RMA’s Oklahoma City Regional Office. 

If there are sufficient acres and 

producers in a requested county, and 

other expansion criteria are met, the 

Regional Office can recommend 

implementation of a program for the 

requested county. Since providing 

‘insurance by variety’’ in Texas was not 

proposed and the public was not 

provided opportunity to comment on 

the recommended change, the 

recommendation cannot be incorporated 

in the final rule. Insurance by type is 

available in Texas as it is in all states 

other than California and Arizona. No 

other change has been made. 

Comment: A commenter stated that 

several vitis vinifera varieties (Riesling, 

Chardonnay, and Cabernet Franc for 

example) have a long history in New 

York and warrant having separate 

premium rates for these varieties. At 

current time, these varieties need a 

written agreement annually, which is 

cumbersome for the growers as well as 

the insurer. 

Response: The vinifera varieties in 

New York are insured by written 

agreement to take into consideration the 

location, block by block, susceptibility 

to frost, and each producers yield 

history by variety. Due to the climatic 

conditions in the region, premium rates 

are individually set by use of the written 

agreement. 

Comment: A commenter inquired 

about new plantings in New York being 

insurable at an earlier age than is 

currently available since they are such 

a long term investment. Recent 

‘‘disaster’’ payments have had 

provisions to pay partial payments on 3 

and 4 year old plantings based on a 

percentage of the county average yield 

for the particular variety. It would seem 

that some sort of plan like this could 

help relieve some of the financial 

burden of having several thousand 

dollars per acre invested in a new 

planting, with no eligibility for 

insurance for the first 6 years. 

Response: When establishing a new 

vineyard, a significant risk is production 

loss due to freeze. New vines run a 

higher risk of production loss due to 

freeze than older established vines. 

Insuring production on younger vines 

would require additional rating analysis 

to determine if it would be cost 

prohibitive to provide such coverage. In 

addition, further procedures would be 

involved to determine appropriate 

production guarantees for such young 

vines. FCIC can consider the 

recommended changes in the future and 

is willing to work with any interested 

parties to determine if insurance can be 

provided for production from younger 

vines. However, no insurance is 

currently available for damage to vines. 

Table Grape Crop Provisions 

Several comments received were the 

same as those received for the Grape 

Crop Provisions; since the provisions 

are substantially similar, those 

comments were addressed in the Grape 

Crop Provisions and noted for Table 

Grape Provisions as applicable. 

Therefore, they will not be repeated in 

the comments below. 

Comment: A few comments were 

received regarding the definition of 

‘‘Lug’’. The commenters stated that as 

written in the Proposed Rule, the added 

phrase ‘‘* * * or as otherwise specified 

in the Special Provisions’’ would allow 

the 21-lb lug to be changed only in ‘‘all 

other California districts’’ but not to 

Coachella County, California, or any 

other states (with a 20-lb lug). If it is 

intended to allow the Special Provisions 

to revise the number of pounds in a lug 

in any state/county, the definition needs 

to be rearranged, perhaps something 

like: (a) 20 pounds; (b) 21 pounds; or (c) 

as otherwise specified. 

Response: FCIC will revise the 

definition to read: Lug—(a) Twenty (20) 

pounds of table grapes in the Coachella 

Valley, California district, and all other 

states, (b) Twenty-one (21) pounds in all 

other California districts, or (c) as 

otherwise specified in the Special 

Provisions. 

Comment: A few commenters 

questioned section 3(b) stating that this 

subsection is being added to allow for 

possible expansion of the Table Grape 

program beyond Arizona and California. 

It matches the equivalent subsection of 

the proposed Grape Crop Provisions but 

also needs to include the additional 

information that was dropped in the 

Proposed Rule for Grapes so it does not 

allow insureds to choose different 

levels/price percentages for different 

types. 

Response: The proposed change was 

intended to also allow insureds in all 

states to select a coverage level and 

price election percentage by type. FCIC 

proposed the changes in coverage level 

and price election percentages to allow 

the producer greater flexibility in 

managing their production and risk. No 

change has been made. 

Comment; A few commenters noted 

that while there is general consistency 

in many of the provisions of the Grape 

Crop Provisions and Table Grape Crop 

Provisions, section 7(f) is written 

differently from the equivalent section 

7(e) of the Grape Crop Provisions. 

Among the differences: 

• The phrase ‘‘* * * unless 

otherwise provided in the Special 

Provisions,’’ is not being added for 

Table Grapes. The commenter asks 

whether this possible flexibility is not 

needed as much for Table Grapes, 

especially since some flexibility is being 

added to the definition of ‘‘lug.’’ 

• The last sentence states that the 

insurance provider ‘‘* * * may agree in 

writing to insure acreage that has not 

produced this amount’’ [dropping the 

reference in the current crop provisions 

to ‘‘inspect’’ as well as ‘‘agree’’], while 

the Grape Crop Provisions ends with 

‘‘* * * inspect and allow insurance on 

such acreage.’’ The commenter asks 

whether there is a valid reason Grapes 

still would require an inspection but 

Table Grapes would not. 

Response: FCIC has made the changes 

to be consistent with language 

contained in the Grape Crop Provisions. 

Comment: A few comments were 

received regarding the proposed 

changes in the calendar date for the end 

of insurance period. The commenters 

stated that: 

• The proposed language no longer 

includes the date when ‘‘* * * the 

grapes are normally harvested * * *’’. 

This revision broadens coverage and 

potentially increases exposure. The 

commenter recommends retaining the 

reference to the date when the grapes 

are normally harvested. 

• By comparison, note that the actual 

calendar dates are spelled out in the 

Grape Crop Provisions, instead of just 

referring to the Special Provisions for 

Table Grapes (which currently are 

insured only in Arizona and California). 

Consider if those dates could be in the 

Table Grape Crop Provisions as well. 

Response: The phrase when the 

grapes are normally harvested is not 

specific with respect to the time 

insurance ends. Therefore, this language 

was removed. However, the date that 

appears on the Special Provisions is 

clear and defines the end of insurance. 

At this time, FCIC is not considering 

including the end of insurance dates for 

table grapes to be in the Crop Provisions 

because the dates vary by variety and 

geographic area and the Special 

Provisions are generally used for 

information that varies by county. Also 

as new states enter the program; it is 

beneficial to include this date on the 

Special Provisions so regulations do not 

have to be revised to add new counties 

or types of grapes. 

Comment: A comment was received 

regarding section 9(b)(1). The 

commenter indicated the sentence, 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 32055 

‘‘* * * Acreage acquired after the 

acreage reporting date will not be 

insured’’, is not contained in the Table 

Grape Crop Provisions, as it is in the 

Grape Crop Provisions and questioned if 

this implies that acreage acquired after 

the acreage reporting date can be 

insured based upon an acceptable 

inspection. If so, the commenter 

recommend adding a statement to allow 

insurance providers the opportunity to 

inspect and insure (or deny) acreage 

added after the acreage reporting date if 

they wish to do so. This would be 

similar to what is currently allowed for 

acreage that is not reported in section 

6(f) of the Basic Provisions. 

Response: It is intended these 

provisions be the same for grapes and 

table grapes. Therefore, the provisions 

indicating insurance will not be 

provided for acreage obtained after the 

acreage reporting date have been added 

to the Table Grape Crop Provisions. 

Comment: Commenters asked why the 

phrase, ‘‘* * * and you previously gave 

notice in accordance with section 14 of 

the Basic Provisions * * *’’ in section 

11(b) is in the Grape Crop Provisions 

but not in the equivalent section of the 

Table Grape Crop Provisions. Consider 

either removing it from the Grape Crop 

Provisions or adding it for Table Grapes. 

Response: The intent of both 

provisions is to require a notice in 

addition to a notice given previously. 

The provisions should be the same. 

Therefore, the phrase indicating, ‘‘notice 

was previously given’’, has been added 

to section 11(c) of the Table Grape Crop 

Provisions. 

Comment: A few comments were 

received regarding section 12(c)(1)(iii) 

referring to ‘‘Unharvested production 

that meets, or would meet if properly 

handled, the state quality standards or 

the appropriate USDA grade standards 

(if no state standard is applicable).’’ 

‘‘USDA Grade Standard’’ has been 

added to the definitions in section 1, but 

there is no definition of the ‘‘state 

quality standards’’ that take precedence 

over the USDA standards according to 

this. Recommend one of the following 

actions: 

• Adding a definition of ‘‘state quality 

standards’’ to the Crop Provisions or 

Special Provisions; 

• Removing the reference in 

12(c)(1)(iii) to avoid the possibility of 

arbitrary determinations; or 

• Revising 12(c)(1)(iii) to read 

something like ‘‘* * * the state quality 

standards, if specified in the Special 

Provisions or the appropriate USDA 

grade standard (if no state standard is 

applicable) * * *’’ 

Response: FCIC has revised the 

provisions to clarify the state quality 

standards as specified in the Special 

Provisions will be used or the 

appropriate USDA grade standard will 

be used if no state standard is specified. 

List of Subjects in 7 CFR Part 457 

Crop insurance, Grapes, Reporting 

and recordkeeping requirements. 

Final Rule 

■ Accordingly, as set forth in the 

preamble, the Federal Crop Insurance 

Corporation amends 7 CFR part 457 

effective for the 2010 and succeeding 

crop years for the Grape Crop Insurance 

Provisions and Table Grape Crop 

Insurance Provisions. 

PART 457—COMMON CROP 

INSURANCE REGULATIONS 

■ 1. The authority citation for 7 CFR 

part 457 continues to read as follows: 

Authority: 7 U.S.C. 1506(1), 1506(o). 

■ 2. Amend § 457.138 as follows: 

■ a. In the introductory text, remove 

‘‘2000’’ and add ‘‘2010’’ in its place and 

remove the phrase ‘‘FCIC Policies’’; 

■ b. Remove the paragraph immediately 

preceding section 1; 

■ c. Amend section 1 by revising the 

definitions of ‘‘harvest’’ and ‘‘set out’’, 

adding definitions of ‘‘type’’ and 

‘‘variety’’, and removing the definition 

of ‘‘varietal group’’; 

■ d. Revise sections 2 through 8; 

■ e. Amend section 9 by revising 

paragraph (a) and the introductory text 

in paragraph (b); 

■ f. Amend section 10 by revising the 

introductory text in paragraph (a); 

■ g. Amend section 11 by revising the 

introductory text; and 

■ h. Amend section 12 by revising 

paragraphs (b)(2) and (4), and (c)(2) and 

(e)(2)(i). 

The added and revised text reads as 

follows: 

§ 457.138 Grape crop insurance 

provisions. 

* * * * * 

1. Definitions. 

* * * * * 

Harvest. Removing the mature grapes 

from the vines either by hand or 

machine. 

* * * * * 

Set out. Physically planting the grape 

plants in the vineyard. 

* * * * * 

Type. A category of grapes (one or 

more varieties) identified as a type in 

the Special Provisions. 

Variety. A kind of grape that is 

distinguished from any other by unique 

characteristics such as, but not limited 

to, size, color, skin thickness, acidity, 

flavors and aromas. In Arizona and 

California each variety is identified as a 

separate type in the Special Provisions 

except for type 095 (other varieties). 

Type 095 is used to designate varieties 

not listed as a separate type. 

2. Unit Division. 

(a) In Arizona and California only: 

(1) A basic unit as defined in section 

1 of the Basic Provisions will be divided 

into additional basic units by each 

variety that you insure; and 

(2) Provisions in the Basic Provisions 

that provide for optional units by 

section, section equivalent, or FSA farm 

serial number and by irrigated and nonirrigated practices are not applicable. 

Unless otherwise allowed by written 

agreement, optional units may only be 

established if each optional unit is 

located on non-contiguous land or 

grown and insured under an organic 

farming practice. 

(b) In all states except Arizona and 

California, in addition to, or instead of, 

establishing optional units by section, 

section equivalent, or FSA farm serial 

number and by irrigated and nonirrigated acreage and for acreage grown 

and insured under an organic farming 

practice as provided in the unit division 

provisions contained in the Basic 

Provisions, a separate optional unit may 

be established if each optional unit: 

(1) Is located on non-contiguous land; 

or 

(2) Consists of a separate type when 

separate types are specified in the 

Special Provisions. 

3. Insurance Guarantees, Coverage 

Levels, and Prices for Determining 

Indemnities. 

In addition to the requirements of 

section 3 of the Basic Provisions: 

(a) In Arizona and California, you may 

select only one coverage level and price 

election for each grape variety you elect 

to insure in the county. 

(b) In all states except Arizona and 

California, you may select only one 

coverage level and price election for 

each grape type in the county as 

specified in the Special Provisions. The 

coverage level you choose for each grape 

type is not required to have the same 

percentage relationship. The price 

election you choose for each type is not 

required to have the same percentage 

relationship to the maximum price 

election offered by us for each type. For 

example, if you choose 75 percent 

coverage level and 100 percent of the 

maximum price election for one type, 

you may choose 65 percent coverage 

level and 75 percent of the maximum 

price election for another type. If you 

elect the Catastrophic Risk Protection 

(CAT) level of insurance for any grape 

type, the CAT level of coverage will be 

32056 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 

applicable to all insured grape acreage 

in the county. 

(c) In all states except Arizona and 

California, if you acquire a share in any 

grape acreage after you submit your 

application, such acreage is insurable 

under the terms of the policy and you 

did not include the grape type on your 

application, we will assign the 

following: 

(1) A coverage level equal to the 

lowest coverage level you selected for 

any other grape type: and 

(2) A price election percentage equal 

to the type with the lowest coverage 

level you selected, if you elected 

additional coverage; or 55 percent of the 

maximum price election, if you elected 

CAT. 

(d) In addition to the definition of 

‘‘price election’’ contained in section 1 

of the Basic Provisions, a price election 

based on the price contained in your 

grape contract is allowed if provided by 

the Special Provisions. In the event any 

contract requires the use of a cultural 

practice that will reduce the amount of 

production from any insured acreage, 

your approved yield will be adjusted in 

accordance with section 3(f) and (g) to 

reflect the reduced production potential. 

(e) In Arizona and California only, if 

the Special Provisions do not provide a 

price election for a specific variety you 

wish to insure, you may apply for a 

written agreement to establish a price 

election. Your application for the 

written agreement must include: 

(1) The number of tons sold for at 

least the two most recent crop years; 

and 

(2) The price received for all 

production of the grape variety in the 

years for which production records are 

provided. 

(f) You must report by the production 

reporting date designated in section 3 of 

the Basic Provisions, by type or variety, 

if applicable: 

(1) Any damage, removal of bearing 

vines, change in practices or any other 

circumstance that may reduce the 

expected yield below the yield upon 

which the insurance guarantee is based, 

and the number of affected acres; 

(2) The number of bearing vines on 

insurable and uninsurable acreage; 

(3) The age of the vines and the 

planting pattern; and 

(4) For the first year of insurance for 

acreage interplanted with another 

perennial crop, and any time the 

planting pattern of such acreage is 

changed: 

(i) The age of the interplanted crop, 

and the grape type or variety, if 

applicable; 

(ii) The planting pattern; and 

(iii) Any other information that we 

request in order to establish your 

approved yield. 

(g) We will reduce the yield used to 

establish your production guarantee, 

based on our estimate of the effect on 

yield potential of any of the items listed 

in section 3(f)(1) through (4). If you fail 

to notify us of any circumstance that 

may reduce your yields from previous 

levels, we will reduce your production 

guarantee at any time we become aware 

of the circumstance. 

(h) Your request to increase the 

coverage level or price election 

percentage will not be accepted if a 

cause of loss that could or would reduce 

the yield of the insured crop is evident 

when your request is made. 

4. Contract Changes. 

In accordance with section 4 of the 

Basic Provisions, the contract change 

date is October 31 preceding the 

cancellation date for Arizona and 

California and August 31 preceding the 

cancellation date for all other states. 

5. Cancellation and Termination 

Dates. 

In accordance with section 2 of the 

Basic Provisions, the cancellation and 

termination dates are January 31 in 

Arizona and California, and November 

20 for all other states. 

6. Report of Acreage. 

In addition to the requirements of 

section 6 of the Basic Provisions, you 

must report your acreage: 

(a) In Arizona and California, by each 

grape variety you insure; or 

(b) In all other states, by each grape 

type. 

7. Insured Crop. 

In accordance with section 8 of the 

Basic Provisions, the crop insured will 

be any insurable variety that you elect 

to insure in Arizona and California, or 

in all other states all insurable types, in 

the county for which a premium rate is 

provided by the actuarial documents: 

(a) In which you have a share; 

(b) That are grown for wine, juice, 

raisins, or canning (if such grapes are 

put to another use (i.e. table grapes), the 

production to count will be in 

accordance with section 12(c)(2(ii)); 

(c) That are grown in a vineyard that, 

if inspected, is considered acceptable by 

us; 

(d) That, after being set out or grafted, 

have reached the number of growing 

seasons designated by the Special 

Provisions; and 

(e) That have produced an average of 

at least two tons of grapes per acre (or 

as otherwise provided in the Special 

Provisions) in at least one of the three 

crop years immediately preceding the 

insured crop year, unless we inspect 

and allow insurance on acreage that has 

not produced this amount. 

8. Insurable Acreage. 

In lieu of the provisions in section 9 

of the Basic Provisions that prohibit 

insurance attaching to a crop planted 

with another crop, grapes interplanted 

with another perennial crop are 

insurable unless we inspect the acreage 

and determine that it does not meet the 

requirements contained in your policy. 

9. Insurance Period. 

(a) In accordance with the provisions 

of section 11 of the Basic Provisions: 

(1) For the year of application, 

coverage begins on February 1 in 

Arizona and California, and November 

21 in all other states. Notwithstanding 

the previous sentence, if your 

application is received by us after 

January 12 but prior to February 1 in 

Arizona or California, or after November 

1 but prior to November 21 in all other 

states, insurance will attach on the 20th 

day after your properly completed 

application is received in our local 

office, unless we inspect the acreage 

during the 20-day period and determine 

that it does not meet insurability 

requirements. You must provide any 

information that we require for the crop 

or to determine the condition of the 

vineyard. 

(2) For each subsequent crop year that 

the policy remains continuously in 

force, coverage begins on the day 

immediately following the end of the 

insurance period for the prior crop year. 

Policy cancellation that results solely 

from transferring to a different 

insurance provider for a subsequent 

crop year will not be considered a break 

in continuous coverage. 

(3) If in accordance with the terms of 

the policy, your grape policy is 

cancelled or terminated for any crop 

year after insurance attached for that 

crop year, but on or before the 

cancellation and termination dates, 

whichever is later, insurance will not be 

considered to have attached for that 

crop year and no premium, 

administrative fee, or indemnity will be 

due for such crop year. 

(4) The calendar date for the end of 

the insurance period for each crop year 

is as follows, unless otherwise specified 

in the Special Provisions: 

(i) October 10 in Mississippi and 

Texas; 

(ii) November 10 in Arizona, 

California, Idaho, Oregon and 

Washington; and 

(iii) November 20 in all other states. 

(b) In addition to the provisions of 

section 11 of the Basic Provisions: 

* * * * * 

10. Causes of Loss. 

(a) In accordance with the provisions 

of section 12 of the Basic Provisions, 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 32057 

insurance is provided only against the 

following causes of loss that occur 

during the insurance period: 

* * * * * 

11. Duties in the Event of Damage or 

Loss. 

In addition to the requirements of 

section 14 of the Basic Provisions, the 

following will apply: 

* * * * * 

12. Settlement of Claim. 

* * * * * 

(b) * * * 

(2) Multiplying each result in section 

12(b)(1) by the respective price election 

you selected for each type or variety; 

* * * * * 

(4) Multiplying the total production to 

count of each type or variety, if 

applicable, (see section 12 (c) through 

(e)) by the respective price election you 

selected; 

* * * * * 

(c) * * * 

(2) All harvested production from the 

insurable acreage: 

(i) Grape production that is harvested 

and dried for raisins will be converted 

to a fresh weight basis by multiplying 

the number of tons of raisin production 

by 4.5. 

(ii) Grapes grown for wine, juice, 

raisins or canning and put to another 

use, will be counted as production to 

count on a tonnage basis. No quality 

adjustment other than that specifically 

provided for in your policy is available. 

* * * * * 

(e) * * * 

(2) * * * 

(i) Dividing the value per ton of the 

damaged grapes by the value per ton for 

undamaged grapes (the value of 

undamaged grapes will be the lesser of 

the average market price or the 

maximum price election for such 

grapes); and 

* * * * * 

■ 3. Amend § 457.149 as follows: 

■ a. In the introductory text, remove 

‘‘2001’’ and add ‘‘2010’’ in its place and 

remove the phrase ‘‘FCIC Policies’’; 

■ b. Remove the paragraph immediately 

preceding section 1; 

■ c. Amend section 1 by revising the 

definitions of ‘‘harvest’’, ‘‘lug’’, and ‘‘set 

out’’, adding definitions of ‘‘type’’ 

‘‘USDA grade standard’’ and ‘‘variety’’, 

and removing the definition of ‘‘cluster 

thinning and removal’’; 

■ d. Revise sections 2 through 10; 

■ e. Amend section 11 by revising the 

introductory text and paragraph (c); and 

■ f. Amend section 12 by revising 

paragraphs (b)(2) and (4) and (c)(1)(iii). 

The added and revised text reads as 

follows: 

§ 457.149 Table grape crop insurance 

provisions. 

* * * * * 

1. Definitions. 

* * * * * 

Harvest. Removing the mature grapes 

from the vines either by hand or 

machine. 

* * * * * 

Lug. 

(1) Twenty (20) pounds of table grapes 

in the Coachella Valley, California 

district, and all other States. 

(2) Twenty-one (21) pounds in all 

other California districts. 

(3) Or as otherwise specified in the 

Special Provisions. 

Set out. Physically planting the grape 

plants in the vineyard. 

* * * * * 

Type. A category of grapes (one or 

more varieties) identified as a type in 

the Special Provisions. 

USDA grade standard. (1) United 

States standard used to determine the 

minimum quality grade will be: 

(i) The United States Standards for 

Grades of Table Grapes (European or 

Vinifera Type); 

(ii) The United States Standards for 

Grades of American (Eastern Type 

Bunch Grapes; and 

(iii) The United States Standards for 

Grades of Muscadine (Vitis rotundifolia) 

Grapes. The quantity and number of 

samples required will be determined in 

accordance with procedure issued by 

FCIC or as provided on the Special 

Provisions of Insurance. 

Variety. A kind of grape that is 

distinguished from any other by unique 

characteristics such as, but not limited 

to, size, color, skin thickness, acidity, 

flavors and aromas. In Arizona and 

California each variety is identified as a 

separate type in the Special Provisions 

except for type 095 (other varieties). 

Type 095 is used to designate varieties 

not listed as a separate type. 

2. Unit Division. 

(a) In Arizona and California only: 

(1) A basic unit as defined in section 

1 of the Basic Provisions will be divided 

into additional basic units by each table 

grape variety that you insure; and 

(2) Provisions in the Basic Provisions 

that provide for optional units by 

section, section equivalent, or FSA farm 

serial number and by irrigated and nonirrigated practices are not applicable. 

Unless otherwise allowed by written 

agreement, optional units may only be 

established if each optional unit is 

located on non-contiguous land or 

grown and insured under an organic 

farming practice. 

(b) In all states except Arizona and 

California, in addition to, or instead of, 

establishing optional units by section, 

section equivalent, or FSA farm serial 

number and by irrigated and nonirrigated acreage and for acreage grown 

and insured under an organic farming 

practice as provided in the unit division 

provisions contained in the Basic 

Provisions, a separate optional unit may 

be established if each optional unit: 

(1) Is located on non-contiguous land; 

or 

(2) Consists of a separate type when 

separate types are specified in the 

Special Provisions. 

3. Insurance Guarantees, Coverage 

Levels, and Prices for Determining 

Indemnities. 

In addition to the requirements of 

section 3 of the Basic Provisions: 

(a) In Arizona and California, you may 

select only one coverage level and price 

election for each table grape variety you 

elect to insure in the county. 

(b) In all states except Arizona and 

California, you may select only one 

coverage level and price election for 

each table grape type in the county as 

specified in the Special Provisions. The 

coverage level you choose for each table 

grape type is not required to have same 

percentage relationship. The price 

election you choose for each type is not 

required to have the same percentage 

relationship to the maximum price 

election offered by us for each type. For 

example, if you choose 75 percent 

coverage level and 100 percent of the 

maximum price election for one type, 

you may choose 65 percent coverage 

level and 75 percent of the maximum 

price election for another type. If you 

elect the Catastrophic Risk Protection 

(CAT) level of insurance for any grape 

type, the CAT level of coverage will be 

applicable to all insured grape acreage 

in the county. 

(c) In all states except Arizona and 

California, if you acquire a share in any 

grape acreage after you submit your 

application, such acreage is insurable 

under the terms of the policy and you 

did not include the grape type on your 

application, we will assign the 

following: 

(1) A coverage level equal to the 

lowest coverage level you selected for 

any other grape type: and 

(2) A price election percentage equal 

to the type with the lowest coverage 

level you selected, if you elected 

additional coverage; or 55 percent of the 

maximum price election, if you elected 

CAT. 

(d) You must report by the production 

reporting date designated in section 3 of 

the Basic Provisions, by type or variety 

if applicable: 

(1) Any damage, removal of bearing 

vines, change in practices or any other 

32058 Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 

circumstance that may reduce the 

expected yield below the yield upon 

which the insurance guarantee is based, 

and the number of affected acres; 

(2) The number of bearing vines on 

insurable and uninsurable acreage; 

(3) The age of the vines and the 

planting pattern; and 

(4) For the first year of insurance for 

acreage interplanted with another 

perennial crop, and any time the 

planting pattern of such acreage is 

changed: 

(i) The age of the interplanted crop, 

and the table grape type or variety, if 

applicable; 

(ii) The planting pattern; and 

(iii) Any other information that we 

request in order to establish your 

approved yield. 

(e) We will reduce the yield used to 

establish your production guarantee, 

based on our estimate of the effect on 

yield potential of any of the items listed 

in section 3(d)(1) through (4). If you fail 

to notify us of any circumstance that 

may reduce your yields from previous 

levels, we will reduce your production 

guarantee at any time we become aware 

of the circumstance. 

(f) Your request to increase the 

coverage level or price election 

percentage will not be accepted if a 

cause of loss that could or would reduce 

the yield of the insured crop is evident 

when your request is made. 

4. Contract Changes. 

In accordance with section 4 of the 

Basic Provisions, the contract change 

date is October 31 preceding the 

cancellation date for Arizona and 

California and August 31 preceding the 

cancellation date for all other states. 

5. Cancellation and Termination 

Dates. 

In accordance with section 2 of the 

Basic Provisions, the cancellation and 

termination dates are January 31 in 

Arizona and California, and November 

20 for all other states. 

6. Report of Acreage. 

In addition to the requirements of 

section 6 of the Basic Provisions, you 

must report your acreage: 

(a) In Arizona and California, by each 

table grape variety you insure; or 

(b) In all other states, by each table 

grape type. 

7. Insured Crop. 

In accordance with section 8 of the 

Basic Provisions, the crop insured will 

be any insurable variety of table grapes 

that you elect to insure in Arizona and 

California, or in all other states all 

insurable types, in the county for which 

a premium rate is provided by the 

actuarial documents: 

(a) In which you have a share; 

(b) That are grown for harvest as table 

grapes; 

(c) That are adapted to the area; 

(d) That are grown in a vineyard that, 

if inspected, is considered acceptable by 

us; 

(e) That, after being set out or grafted, 

have reached the number of growing 

seasons designated by the Special 

Provisions; or 

(f) That have produced an average of 

at least 150 lugs of table grapes per acre 

(or as otherwise provided in the Special 

Provisions) in at least one of the three 

crop years immediately preceding the 

insured crop year, unless we inspect 

and allow insurance on acreage that has 

not produced this amount. 

8. Insurable Acreage. 

In lieu of the provisions in section 9 

of the Basic Provisions that prohibit 

insurance attaching to a crop planted 

with another crop, table grapes 

interplanted with another perennial 

crop are insurable unless we inspect the 

acreage and determine that it does not 

meet the requirements contained in 

your policy. 

9. Insurance Period. 

(a) In accordance with the provisions 

of section 11 of the Basic Provisions 

(1) For the year of application, 

coverage begins on February 1 in 

Arizona and California, and November 

21 in all other states. Notwithstanding 

the previous sentence, if your 

application is received by us after 

January 12 but prior to February 1 in 

Arizona or California, or after November 

1 but prior to November 21 in all other 

states, insurance will attach on the 20th 

day after your properly completed 

application is received in our local 

office, unless we inspect the acreage 

during the 20-day period and determine 

that it does not meet insurability 

requirements. You must provide any 

information that we require for the crop 

or to determine the condition of the 

vineyard. 

(2) For each subsequent crop year that 

the policy remains continuously in 

force, coverage begins on the day 

immediately following the end of the 

insurance period for the prior crop year. 

Policy cancellation that results solely 

from transferring to a different 

insurance provider for a subsequent 

crop year will not be considered a break 

in continuous coverage. 

(3) If in accordance with the terms of 

the policy, your table grape policy is 

cancelled or terminated for any crop 

year after insurance attached for that 

crop year, but on or before the 

cancellation and termination dates, 

whichever is later, insurance will not be 

considered to have attached for that 

crop year and no premium, 

administrative fee, or indemnity will be 

due for such crop year. 

(4) The calendar date for the end of 

insurance period for each crop year is 

the date specified in the Special 

Provisions. 

(b) In addition to the provisions of 

section 11 of the Basic Provisions: 

(1) If you acquire an insurable share 

in any insurable acreage after coverage 

begins, but on or before the acreage 

reporting date for the crop year, and 

after an inspection we consider the 

acreage acceptable; insurance will be 

considered to have attached to such 

acreage on the calendar date for the 

beginning of the insurance period. 

Acreage acquired after the acreage 

reporting date will not be insured. 

(2) If you relinquish your insurable 

share on any insurable acreage of table 

grapes on or before the acreage reporting 

date for the crop year, insurance will 

not be considered to have attached to, 

and no premium will be due or 

indemnity paid for such acreage for that 

crop year unless: 

(i) A transfer of coverage and right to 

an indemnity, or a similar form 

approved by us, is completed by all 

affected parties; 

(ii) We are notified by you or the 

transferee in writing of such transfer on 

or before the acreage reporting date; and 

(iii) The transferee is eligible for crop 

insurance. 

10. Causes of Loss. 

(a) In accordance with the provisions 

of section 12 of the Basic Provisions, 

insurance is provided only against the 

following causes of loss that occur 

during the insurance period: 

(1) Adverse weather conditions; 

(2) Fire, unless weeds and other forms 

of undergrowth have not been 

controlled or pruning debris has not 

been removed from the vineyard; 

(3) Insects, except as excluded in 

10(b)(1), but not damage due to 

insufficient or improper application of 

pest control measures; 

(4) Plant disease, but not damage due 

to insufficient or improper application 

of disease control measures; 

(5) Wildlife; 

(6) Earthquake; 

(7) Volcanic eruption; or 

(8) Failure of irrigation water supply, 

if caused by an insured peril that occurs 

during the insurance period. 

(b) In addition to the causes of loss 

excluded in section 12 of the Basic 

Provisions, we will not insure against 

damage or loss of production due to: 

(1) Phylloxera, regardless of cause; or 

(2) Inability to market the table grapes 

for any reason other than the actual 

physical damage from an insurable 

cause specified in this section. For 

example, we will not pay you an 

indemnity if you are unable to market 

Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Rules and Regulations 32059 

1The December 22, 2008, notice of proposed 

rulemaking that addressed test procedures for 

measuring the energy efficiency of small electric 

motors proposed in section III.A of the preamble a 

new ‘‘Subpart T—Small Electric Motors,’’ under 10 

CFR part 431. 73 FR 78220, 78237. Subsequent to 

that notice, DOE became aware that ‘‘Subpart T’’ 

had been used in an earlier rulemaking for 

certification, compliance, and enforcement 

requirements for consumer products and 

commercial equipment. 71 FR 42178, 42214 (July 

25, 2006). Consequently, today’s final rule reformats 

‘‘Subpart T’’ to read ‘‘Subpart X’’ and renumbers the 

‘‘431.340’’ series to read ‘‘431.440.’’ 

Notwithstanding, certain passages, comments, and 

references that follow make reference to ‘‘Subpart 

T’’ because that language was used in the NOPR. 

This is addressed further in section III.E of the 

preamble that follows. 

due to quarantine, boycott, or refusal of 

any person to accept production. 

11. Duties in the Event of Damage or 

Loss. 

In addition to the requirements of 

section 14 of the Basic Provisions, the 

following will apply: 

* * * * * 

(c) If the crop has been damaged 

during the growing season and you 

previously gave notice in accordance 

with section 14 of the Basic Provisions, 

you must also provide notice at least 15 

days prior to the beginning of harvest if 

you intend to claim an indemnity as a 

result of the damage previously 

reported. You must not destroy the 

damaged crop until the earlier of 15 

days from the date you gave notice of 

loss, or our written consent to do so. If 

you fail to meet requirements of this 

section all such production will be 

considered undamaged and included as 

production to count. 

* * * * * 

12. Settlement of Claim. 

* * * * * 

(b) * * * 

(2) Multiplying each result in section 

12(b)(1) by the respective price election 

you selected for each type or variety; 

* * * * * 

(4) Multiplying the total production to 

count of each type or variety, if 

applicable, (see section 12(c)) by the 

respective price election you selected; 

* * * * * 

(c) * * * 

(1) * * * 

(iii) Unharvested production that 

meets, or would meet if properly 

handled, the state quality standards, if 

specified in the Special Provisions, or 

the appropriate USDA grade standard (if 

no state standard is specified); and 

* * * * * 

Signed in Washington, DC, on June 24, 

2009. 

William J. Murphy, 

Acting Manager, Federal Crop Insurance 

Corporation. 

[FR Doc. E9–15498 Filed 7–6–09; 8:45 am] 

BILLING CODE 3410–08–P 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[Docket No. EERE–2008–BT–TP–0008] 

RIN 1904–AB71 

Energy Conservation Program: Test 

Procedures for Small Electric Motors 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is prescribing test procedures for 

measuring the energy efficiency of 

single-phase and polyphase small 

electric motors. The final rule 

incorporates by reference industry test 

procedures already in use when 

measuring the energy efficiency of these 

types of motors. Additionally, the final 

rule clarifies definitions applying to 

small electric motors and identifies 

issues that will be further addressed 

later in a related supplemental notice. 

DATES: This rule is effective August 6, 

2009. The incorporation by reference of 

certain publications listed in this rule 

was approved by the Director of the 

Federal Register on August 6, 2009. 

ADDRESSES: You may review copies of 

all materials related to this rulemaking 

at the U.S. Department of Energy, 

Resource Room of the Building 

Technologies Program, 950 L’Enfant 

Plaza, SW., Suite 600, Washington, DC, 

(202) 586–2945, between 9 a.m. and 4 

p.m., Monday through Friday, except 

Federal holidays. Please call Ms. Brenda 

Edwards at the above telephone number 

for additional information regarding 

visiting the Resource Room. Please note 

that the DOE’s Freedom of Information 

Reading Room no longer houses 

rulemaking materials. 

FOR FURTHER INFORMATION CONTACT: Mr. 

James Raba, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–8654. E-mail: 

Jim.Raba@ee.doe.gov. In the Office of 

the General Counsel, contact Mr. 

Michael Kido, U.S. Department of 

Energy, Office of the General Counsel, 

GC–72, 1000 Independence Avenue, 

SW., Washington, DC 20585. Telephone: 

(202) 586–9507. E-mail: 

Michael.Kido@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: Today’s 

final rule incorporates by reference, into 

subpart X of Title 10, Code of Federal 

Regulations, part 431 (10 CFR part 

431),1 the following industry standards 

from the Canadian Standards 

Association and the Institute of 

Electrical and Electronics Engineers: 

• CAN/CSA–C747–94 (Reaffirmed 

2005), (‘‘CAN/CSA–C747’’), Energy 

Efficiency Test Methods for Single- and 

Three-Phase Small Motors. 

• IEEE Std 114–2001TM (Revision of 

IEEE Std 114–1982TM), (‘‘IEEE Std 

114’’), ‘‘IEEE Standard Test Procedure 

for Single-Phase Induction Motors,’’ 

approved December 6, 2001. 

• IEEE Std 112TM–2004 (Revision of 

IEEE Std 112–1996), (‘‘IEEE Std 112’’), 

‘‘IEEE Standard Test Procedure for 

Polyphase Induction Motors and 

Generators,’’ approved February 9, 2004. 

Copies of CAN/CSA–C747 can be 

obtained from the Canadian Standards 

Association, Sales Department, 5060 

Spectrum Way, Suite 100, Mississauga, 

Ontario, L4W 5N6, Canada, 1–800–463– 

6727, or http://www.shopcsa.ca/

onlinestore/welcome.asp. 

Copies of IEEE Std 112 and 114 can 

be obtained from the Institute of 

Electrical and Electronics Engineers, 

Inc., 445 Hoes Lane, P.O. Box 1331, 

Piscataway, NJ 08855–1331, 1–800– 

678–IEEE (4333), or http://www.ieee.

org/web/publications/home/index.html. 

You can also view copies of these 

standards at the U.S. Department of 

Energy, Resource Room of the Building 

Technologies Program, 950 L’Enfant 

Plaza, SW., 6th Floor, Washington, DC 

20024, (202) 586–2945, between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays. 

Table of Contents 

I. Introduction 

A. Authority 

B. Background 

II. Summary of the Final Rule 

III. Discussion 

A. Definition of Small Electric Motor 

1. International Electrotechnical 

Commission Motors 

2. Insulation System Class 

3. Definition of Basic Model 

B. Test Procedures for the Measurement of 

Energy Efficiency 

1. Single-Phase Small Electric Motor Test 

Method 

2. Polyphase Small Electric Motor Test 

Method 

C. Alternative Efficiency Determination 

Method 

1. Statistical Basis for an Alternative 

Efficiency Determination Method 

2. Sample Size for Substantiating an 

Alternative Efficiency Determination 

Method 

3. Omission of Alternative Efficiency 

Determination Method Substantiation