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###### Department of Agriculture

###### Agricultural Marketing Service

          - 7 CFR Part 925
          - [Doc. No. AMS-FV-11-0090; FV 12-925-1 FR]

# 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 2012 and subsequent fiscal periods from $0.0125 to $0.0150 per 18-pound lug of grapes handled. The Committee locally administers the marketing order, which 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 began January 1 and ends December 31. The assessment rate will remain in effect indefinitely unless modified, suspended or terminated.

# DATES:

*Effective Date:*                         January 10, 2013.                    

# FOR FURTHER INFORMATION CONTACT:

                        Kathie M. Notoro, Marketing Specialist, or Kurt J. Kimmel, 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                         *Kurt.Kimmel@ams.usda.gov.*

                        Small businesses may request information on complying with this regulation by contacting Laurel May, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:                         *Laurel.May@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.                          ( print page 1716)    

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, 2012, and 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 2012 and subsequent fiscal periods from $0.0125 to $0.0150 per 18-pound lug of grapes.

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 2011 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 upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on November 3, 2011, and unanimously recommended 2012 expenditures of $95,500 and an assessment rate of $0.0150 per 18-pound lug of grapes handled. In comparison, last year's budgeted expenditures were $89,616. The assessment rate of $0.0150 per 18-pound lug of grapes handled recommended by the Committee is $0.0025 higher than the $0.0125 rate currently in effect. The higher assessment rate is necessary to cover the Committee's budgeted expenses which include an increase in research and general office expenses. While the Committee's crop estimate of 5.8 million, 18-pound lugs is higher than the 5.4 million, 18-pound lugs handled last year, the higher assessment will generate $87,000 of revenue. This revenue plus the operating reserve should be sufficient to cover the increase in anticipated expenses.

The major expenditures recommended by the Committee for the 2012 fiscal period include $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses. The $15,500 research project is a for a new vine study proposed by the University of California Riverside. In comparison, major expenditures for the 2011 fiscal period included $10,000 for research, $15,616 for general office expenses, and $64,000 management and compliance expenses.

The assessment rate recommended by the Committee was derived by the following formula: Anticipated 2012 expenses ($95,500) plus the desired 2012 ending reserve ($70,000), minus the anticipated 2012 beginning reserve ($78,500), divided by the estimated 2012 shipments (5.8 million, 18-pound lugs) equals $0.0150 per lug.

Income generated through the $0.0150 assessment ($87,000) plus anticipated carry-in reserve funds ($78,500) should be sufficient to meet anticipated expenses ($95,500). Reserve funds by the end of 2012 are projected at $70,000 or about one fiscal period's expenses. Section 925.41 of the order permits the Committee to maintain about one fiscal period's expenses in reserve.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon 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 2012 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 business 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 small entities acting on their own behalf.

There are approximately 13 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 13 handlers subject to regulation have annual grape sales of less than $7 million. Based on data from the National Agricultural Statistics Service (NASS) and the Committee, the crop value for the 2011 season was about $46,574,000. Dividing this figure by the number of producers (41) yields an average annual producer revenue estimate of about $1,135,951. However, according to the Committee, at least 10 of 41 producers would be considered small businesses under the Small Business Administration threshold of $750,000. Based on the foregoing, it may be concluded that a majority of grape handlers and at least ten of the producers could be classified as small entities.

                    This rule increases the assessment rate established for the Committee and                           ( print page 1717)                        collected from handlers for the 2012 and subsequent fiscal periods from $0.0125 to $0.0150 per 18-pound lug of grapes. The Committee unanimously recommended 2012 expenditures of $95,500 and an assessment rate of $0.0150 per 18-pound lug of grapes handled. The assessment rate of $0.0150 is $0.0025 higher than the 2011 rate currently in effect. The higher assessment rate is necessary to cover the Committee's budgeted expenses, including increases in research and general office expenses. While the Committee's crop estimate of 5.8 million, 18-pound lugs is higher than the 5.4 million, 18-pound lugs handled last year, the higher rate will generate $87,000 of revenue. This revenue plus the operating reserve should be sufficient to cover the increase in anticipated expenses. Reserve funds by the end of 2012 are projected at $70,000 or about one fiscal period's expenses.                

The major expenditures recommended by the Committee for the 2012 fiscal period include $15,500 for research, $17,500 for general office expenses, and $62,500 for management and compliance expenses. The $15,500 research project is a for a new vine study proposed by the University of California Riverside. In comparison, major expenditures for the 2011 fiscal period included $10,000 for research, $15,616 for general office expenses, and $64,000 management and compliance expenses.

The assessment rate recommended by the Committee was derived by the following formula: Anticipated 2012 expenses ($95,500) plus the desired 2012 ending reserve ($70,000), minus the anticipated 2012 beginning reserve ($78,500), divided by the estimated 2012 shipments (5.8 million, 18-pound lugs) equals $0.0150 per lug.

The Committee reviewed and unanimously recommended 2012 expenditures of $95,500, which included increases in research and general office expenses. Prior to arriving at this budget, the Committee considered alternative expenditures and assessment rates, to include not increasing the $0.0125 assessment rate currently in effect. Based on a crop estimate of 5.8 million 18-pound lugs, the Committee ultimately determined that increasing the assessment rate to $0.0150 combined with funds generated from the reserve should adequately cover increased expenses and provide an adequate 2012 ending reserve.

A review of historical crop and price information, as well as preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2012 season could average about $7.93 per 18-pound lug of grapes handled for California grapes. To calculate the percentage of producer revenue represented by the assessment rate for 2011, the assessment rate of $0.0125 per 18-pound lug is divided by the estimated average producer price of $7.93 per 18-pound lug. NASS data for 2012 is not yet available. However, applying these same calculations above using the July 2011 producer price would result in an estimated assessment revenue as a percentage of total producer revenue of 0.189 percent for the 2012 season ($0.0150 divided by $7.93 per 18-pound lug). Thus, the assessment revenue should be well below the 1 percent of estimated producer revenue in 2012.

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 will 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 November 3, 2011, 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. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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.

                    A proposed rule concerning this action was published in the                     **Federal Register**                     on July 2, 2012 (77 FR 39184).                

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 30-day comment period ending August 1, 2012, 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 Laurel May 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, 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 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 2012 fiscal period began on January 1, 2012, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable grapes handled during the fiscal period; (2) the Committee needs to have sufficient funds to meet 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. Also, a 30-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:

Authority:7 U.S.C. 601-674.
      ( print page 1718)    
2. Section 925.215 is revised to read as follows: 

§ 925.215 

On or after January 1, 2012, an assessment rate of $0.0150 per 18-pound lug is established for grapes grown in a designated area of southeastern California.

Dated: January 3, 2013.

Rex A. Barnes,

Acting Administrator, Agricultural Marketing Service.

[FR Doc. 2013-00190 Filed 1-8-13; 8:45 am]

BILLING CODE 3410-02-P