### 39548 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations

that is specifically prohibited by law or required by Executive order to be kept
secret in the interest of national defense or foreign affairs, unless such information is disclosed to Congress, the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.

(c) Other protected activity means any of the following:

(1) The exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing;

(2) Testifying for or otherwise lawfully assisting any individual in the exercise of any right granted by any law, rule, or regulation;

(3) Cooperating with or disclosing information to Congress, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(4) Refusing to obey an order that would require the individual to violate
a law.

* * * * *

(f) Reasonable belief. An employee or applicant may be said to have a
reasonable belief when a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude
that the actions of the Government evidence the violation, mismanagement, waste, abuse, or danger in question.

■ 17. Section 1209.6 is amended by revising paragraphs (a)(4) and (a)(5)(ii)
to read as follows:

**§ 1209.6 Content of appeal; right to hearing.** 

(a) * * * (4) A description of each disclosure evidencing whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and

(5) * * * (ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure or other protected activity, as described in § 1209.4(b) of this part.

* * * * *

■ 18. Section 1209.7 is revised to read
as follows:

**§ 1209.7 Burden and degree of proof.**

(a) Subject to the exception stated in paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that the disclosure or other protected activity was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant.

(b) However, even where the appellant meets the burden stated in paragraph (a) of this section, the Board
will not order corrective action if the agency shows by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure or other protected activity.

■ 19. Section 1209.9 is amended by revising paragraph (a)(6)(ii) to read as
follows:

**§ 1209.9 Content of stay request and**

**response.**

(a) * * * (6) * * * (ii) The action complained of was based on whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and

* * * * *

■ 20. Section 1209.13 is revised to read
as follows:

**§ 1209.13 Referral of findings to the Special Counsel.** 

When the Board determines in a proceeding under this part that there is
reason to believe that a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to investigate and take appropriate action
under 5 U.S.C. 1215.

William D. Spencer, Clerk of the Board.

[FR Doc. 2013–15633 Filed 7–1–13; 8:45 am]

**BILLING CODE 7400–01–P**

**DEPARTMENT OF AGRICULTURE**

**Food and Nutrition Service**

**7 CFR Part 253**

**[FNS–2009–0006]**

**RIN 0584–AD95**

**Food Distribution Program on Indian**
**Reservations: Amendments Related to the Food, Conservation, and Energy**  **Act of 2008; Approval of Information Collection Request** 

**AGENCY :**  Food and Nutrition Service,

USDA.

**ACTION :**  Final rule; Notice of Approval of Information Collection Request (ICR). **SUMMARY :**  The final rule entitled Food Distribution Program on Indian
Reservations: Amendments Related to the Food, Conservation, and Energy Act of 2008 was published on April 6, 2011. The Office of Management and Budget (OMB) cleared the associated information collection requirements (ICR) on December 20, 2011. This document announces approval of the

ICR.

**DATES :**  The ICR associated with the final rule published in the Federal Register on April 6, 2011, at 76 FR 18861, was approved by OMB on December 20, 2011, under OMB Control Number

0584–0293.

**FOR FURTHER INFORMATION CONTACT :**  Dana Rasmussen, Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302, by phone at (703) 305– 2662, or via email at Dana.Rasmussen@fns.usda.gov.

Dated: June 25, 2013. Jeffrey J. Tribiano, Acting Administrator, Food and Nutrition

Service.

[FR Doc. 2013–15634 Filed 7–1–13; 8:45 am]

**BILLING CODE 3410–30–P**

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 925**

**[Doc. No. AMS–FV–13–0005; FV13–925–1 FR]** 

**Grapes Grown in Designated Area of Southeastern California; Increased** 

**Assessment Rate**

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Final rule.

**SUMMARY :**  This rule increases the
assessment rate established for the California Desert Grape Administrative Committee (Committee) for the 2013 and subsequent fiscal periods from $0.0150 to $0.0165 per 18-pound lug of grapes handled. The Committee locally administers the marketing order that regulates the handling of grapes grown in a designated area of southeastern California. Assessments upon grape handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins January 1 and ends December 31. The
assessment rate will remain in effect indefinitely unless modified, suspended
or terminated.

**DATES :**  Effective July 3, 2013.


### 39549 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations

**FOR FURTHER INFORMATION CONTACT :**  Kathie M. Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (559) 487– 5901, Fax: (559) 487–5906, or Email: Kathie.Notoro@ams.usda.gov or Martin.Engeler@ams.usda.gov. Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, or Email: Jeffrey.Smutny@ams.usda.gov.

**SUPPLEMENTARY INFORMATION :**  This rule is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the
‘‘order.’’ The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’

The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order

12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, grape handlers in a designated
area of southeastern California are subject to assessments. Funds to
administer the order are derived from
such assessments. It is intended that the
assessment rate as issued herein is applicable to all assessable grapes beginning on January 1, 2013, and will continue until amended, suspended, or
terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with
the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA’s ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule increases the assessment
rate established for the Committee for the 2013 and subsequent fiscal periods from $0.0150 to $0.0165 per 18-pound lug of grapes handled.

The grape order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The
members of the Committee are producers and handlers of grapes grown in a designated area of southeastern California. They are familiar with the
Committee’s needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment
rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2012 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment
rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the
Committee or other information
available to USDA.

The Committee met on March 4, 2013, and unanimously recommended 2013 expenditures of $100,000 and an assessment rate of $0.0165 per 18-pound lug of grapes handled. In comparison, last year’s budgeted expenditures were $95,500. The recommended assessment rate is $0.0015 higher than the $0.0150 rate currently in effect. The Committee also estimated shipments for the 2013 season to be 5,800,000 lugs. The higher assessment rate, applied to estimated shipments of 5,800,000 lugs, is expected to generate $95,700 in revenue, which is slightly less than the budgeted expenses. However, combining this revenue with $4,300 from financial operating reserves will provide
sufficient revenue to cover the Committee’s budgeted expenses.

The major expenditures recommended by the Committee for the 2013 fiscal period include $15,500 for research, $17,000 for general office expenses, and $67,500 for management and compliance expenses. In comparison, major expenditures for the 2012 fiscal period included $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses.

The assessment rate recommended by the Committee was derived by evaluating several factors, including estimated shipments for the 2013 season, budgeted expenses, and the
level of available financial reserves. The
Committee determined that it could utilize $4,300 from its financial reserves
and still maintain the reserves at an acceptable level. The remaining $95,700 necessary to meet budgeted expenses will need to be raised through assessments. Thus, dividing the $95,700 in necessary assessment revenue by 2013 estimated shipments of 5,800,000 lugs results in an assessment rate of
$0.0165.

Reserve funds by the end of 2013 are projected at $53,972, which is well
within the amount authorized under the
order. Section 925.41 of the order permits the Committee to maintain approximately one fiscal period’s expenses in reserve.

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the
Committee or other available
information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and
consider recommendations for
modification of the assessment rate. The dates and times of Committee meetings
are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings.
USDA will evaluate the Committee
recommendations and other available
information to determine whether
modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee’s 2013 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in
order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially


### 39550 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations

small entities acting on their own
behalf.

There are approximately 14 handlers of southeastern California grapes who are subject to regulation under the order and about 41 grape producers in the production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. Nine of the 14 handlers subject to regulation have annual grape sales of less than $7,000,000, according
to Committee and USDA data. In addition, it is estimated that ten of the 41 producers have annual receipts of less than $750,000. Based on the foregoing, it may be concluded that a majority of grape handlers regulated under the order, and about ten of the producers could be classified as small
entities under the Small Business
Administration definitions.

This rule increases the assessment
rate established for the Committee and
collected from handlers for the 2013 and subsequent fiscal periods. The Committee unanimously recommended an assessment rate of $0.0165 per 18- pound lug of grapes handled, and 2013 expenditures of $100,000. The assessment rate of $0.0165 is $0.0015 higher than the 2012 rate currently in effect. The quantity of assessable grapes
for the 2013 season is estimated at 5,800,000 18-pound lugs. Thus, the $0.0165 rate should generate $95,700 in income. Combined with $4,300 from financial reserves, this should provide adequate revenue to meet the 2013 fiscal period expenses. In addition, reserve funds at the end of the year are projected to be $53,972, which is well
within the order’s limitation of approximately one fiscal period’s

expenses.

The major expenditures recommended by the Committee for the 2013 fiscal period include $15,500 for research, $17,000 for general office expenses, and $67,500 for management and compliance expenses. In comparison, major expenditures for the 2012 fiscal period included $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses.

Prior to arriving at this budget, the
Committee considered alternative expenditures and assessment rates, including not increasing the $0.0150 assessment rate currently in effect. Based on a crop estimate of 5,800,000 18-pound lugs, the Committee ultimately determined that revenue generated from an assessment rate of $0.0165, combined with funds from the financial reserve, should adequately cover increased expenses while providing an adequate 2013 ending
financial reserve.

A review of historical crop and price information, as well as preliminary information pertaining to the 2013 season indicates that the producer price for southeastern California grapes for the 2013 season could average about $8.00 per 18-pound lug. Utilizing this
estimate and the assessment rate of $0.0165, estimated assessment revenue as a percentage of total estimated producer revenue should be 0.20 percent for the 2013 season ($0.0165 divided by $8.00 per 18-pound lug). Thus, the assessment revenue should be well below 1 percent of estimated producer revenue in 2013.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal
and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs should be offset by the benefits derived by the operation of the order. In addition, the Committee’s meeting was widely publicized throughout the grape production area and all interested persons were invited to attend and participate in Committee deliberations
on all issues. Like all Committee meetings, the March 4, 2013, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order’s information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0189. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule imposes no additional reporting or recordkeeping requirements on either small or large California grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, 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. USDA has not identified any relevant Federal rules that duplicate, overlap, or
conflict with this action.

A proposed rule concerning this action was published in the Federal Register on May 14, 2013 (78 FR 28147). Copies of the proposed rule were also mailed or sent via facsimile to all grape handlers. Finally, the proposal was made available through the internet by
USDA and the Office of the Federal Register. A 15-day comment period ending May 29, 2013, was provided for interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may
be viewed at: www.ams.usda.gov/ MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously-mentioned address in
the **FOR FURTHER INFORMATION CONTACT**
section.

After consideration of all relevant material presented, including the
information and recommendation submitted by the Committee and other available information provided, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2013 fiscal period began on January 1, 2013, and the marketing order requires that the assessment rate for each fiscal period apply to all assessable grapes handled during such fiscal period; (2) the
Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is
similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 925

Grapes, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 925 is amended as
follows:

**PART 925—GRAPES GROWN IN A**
**DESIGNATED AREA OF**
**SOUTHEASTERN CALIFORNIA**

■ 1. The authority citation for 7 CFR part 925 continues to read as follows:


### 39551 Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations

Authority: 7 U.S.C. 601–674.

■ 2. Section 925.215 is revised to read
as follows:

**§ 925.215 Assessment rate.**

On and after January 1, 2013, an assessment rate of $0.0165 per 18-pound lug is established for grapes grown in a designated area of southeastern
California.

Dated: June 25, 2013.

Rex A. Barnes, Associate Administrator, Agricultural Marketing Service.

[FR Doc. 2013–15621 Filed 7–1–13; 8:45 am]

**BILLING CODE P**

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 1205**

**[Doc. AMS–CN–12–0065]**

**Cotton Board Rules and Regulations: Adjusting Supplemental Assessment**  **on Imports (2013 Amendment)**

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Direct Final Rule.

**SUMMARY :**  The Agricultural Marketing Service (AMS) is amending the Cotton Board Rules and Regulations, decreasing the value assigned to imported cotton for the purposes of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. This amendment is required each year to assure that assessments collected on imported
cotton and the cotton content of imported products will be the same as those paid on domestically produced cotton. In addition, AMS is changing two Harmonized Tariff Schedule (HTS) statistical reporting numbers that were
amended since the last assessment adjustment in 2012.

**DATES :**  This direct final rule is effective September 3, 2013, without further action or notice, unless significant adverse comment is received by August 1, 2013. If significant adverse comment is received, AMS will publish a timely
withdrawal of the amendment in the Federal Register

. **ADDRESSES :**  Written comments may be submitted to the addresses specified
below. All comments will be made available to the public. Please do not include personally identifiable information (such as name, address, or other contact information) or
confidential business information that you do not want publically disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. Comments may be submitted anonymously.

Comments, identified by AMS–CN– 12–0065, may be submitted electronically through the Federal eRulemaking Portal at http:// www.regulations.gov. Please follow the instructions for submitting comments. In addition, comments may be submitted by mail or hand delivery to Cotton Research and Promotion Staff, Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia, 22406.
Comments should be submitted in triplicate. All comments received will be made available for public inspection at Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia, 22406. A copy of this notice may be found at: www.regulations.gov

. **FOR FURTHER INFORMATION CONTACT :**  Shethir M. Riva, Chief, Research and Promotion Staff, Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia, 22406, telephone (540) 361– 2726, facsimile (540) 361–1199, or email

at Shethir.Riva@ams.usda.gov

. **SUPPLEMENTARY INFORMATION :** 
A. Background

Amendments to the Cotton Research and Promotion Act (7 U.S.C. 2101–2118) (Act) were enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101–624, 104 stat. 3909, November 28, 1990). These amendments contained two provisions that authorize changes in the funding procedures for the Cotton Research and Promotion Program. These provisions provide for: (1) the assessment of imported cotton and cotton products; and (2) termination of refunds to cotton producers. (Prior the 1990 amendments to the Act, producers could request assessment refunds.)

As amended, the Cotton Research and Promotion Order (7 CFR part 1205) (Order) was approved by producers and importers voting in a referendum held July 17–26, 1991, and the amended Order was published in the Federal Register on December 10, 1991, (56 FR 64470). A proposed rule implementing the amended Order was published in
the Federal Register on December 17, 1991, (56 FR 65450). Implementing rules were published on July 1 and 2, 1992, (57 FR 29181) and (57 FR 29431), respectively.

This direct final rule would amend the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR part 1205.510(b)(2)) that is used
to determine the Cotton Research and Promotion assessment on imported cotton and cotton products. The total
value of assessment levied on cotton imports is the sum of two parts. The first part of the assessment is based on the weight of cotton imported—levied at a rate of $1 per bale of cotton, which is equivalent to 500 pounds, or $1 per 226.8 kilograms of cotton. The second part of the import assessment (referred to as the supplemental assessment) is based on the value of imported cotton lint or the cotton contained in importedcotton products—levied at a rate of fivetenths of one percent of the value of domestically produced cotton.

Section 1205.510(b)(2) of the Cotton
Research and Promotion Rules and Regulations provides for assigning the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of imported cotton. This is so that the assessment on domestically produced cotton and the assessment on imported
cotton and the cotton content of imported products is the same. The source for the average price statistic is Agricultural Prices, a publication of the National Agricultural Statistics Service (NASS) of the Department of Agriculture. Use of the weighted average price figure in the calculation of supplemental assessments on imported
cotton and the cotton content of imported products will yield an
assessment that is the same as assessments paid on domestically produced cotton.

The current value of imported cotton as published in 2012 in the Federal Register (77 FR 51867) for the purpose of calculating assessments on imported cotton is $0.014109 per kilogram. Using the Average Weighted Priced received by U.S. farmers for Upland cotton for the calendar year 2012, this direct final
rule would amend the new value of imported cotton to $0.012876 per kilogram to reflect the price paid by U.S. farmers for Upland cotton during 2012.

An example of the complete assessment formula and how the figures
are obtained is as follows:

One bale is equal to 500 pounds. One kilogram equals 2.2046 pounds. One pound equals 0.453597 kilograms.

One Dollar per Bale Assessment Converted to Kilograms

A 500-pound bale equals 226.8 kg. (500 × 0.453597).

$1 per bale assessment equals $0.002000 per pound or $0.2000 cents