[Federal Register Volume 69, Number 157 (Monday, August 16, 2004)]
[Rules and Regulations]
[Pages 50283-50286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18609]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV04-925-1 FIR]


Grapes Grown in a Designated Area of Southeastern California; 
Establishment of Reporting Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture is adopting, as a final rule, 
without change, an interim final rule which established end-of-season 
reporting requirements authorized under the California grape marketing 
order (order). The order regulates the handling of grapes grown in a 
designated area of Southeastern California and is administered locally 
by the California Desert Grape Administrative Committee (Committee). 
Requiring handlers to file end-of-season grape shipment reports with 
the Committee enables the Committee to obtain accurate shipment data 
for assessment billing and for the next season's marketing decisions 
without incurring the expense of auditing every handler. Handler costs 
will continue to be reduced because the submission of end-of-season 
grape shipment reports is expected to be less costly and less time 
consuming than yearly handler audits.

DATES: Effective Date: September 15, 2004.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, 
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 
720-2491, Fax: (202) 720-8938, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 925 (7 CFR part 925), regulating the handling of grapes grown in 
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.''
    USDA is issuing this rule in conformance with Executive Order 
12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    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. A 
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 continues in effect end-of-season reporting requirements 
authorized under the California grape order. Requiring handlers to file 
end-of-season grape shipment reports with the Committee enables the 
Committee to obtain accurate shipment data for assessment billing and 
for the next season's marketing decisions without incurring the expense 
of auditing every handler each year. Handler costs will continue to be 
reduced because the preparation and submission of end-of-season grape 
shipment reports is expected to be less costly and less time consuming 
than yearly handler audits. This action is in the best interest of 
producers and handlers.
    Section 925.41 of the grape order provides authority to assess each 
person who first handles grapes a pro rata share of the expenses which 
are reasonable and likely to be incurred by the Committee during a 
fiscal period.
    Section 925.215 of the order's rules and regulations establishes an 
assessment rate of $0.015 per 18-pound lug for grapes grown in a 
designated area of southeastern California.
    Section 925.60(b) of the grape order provides authority for 
establishing reporting requirements. Under the marketing order, the 
Committee may, with the approval of the Secretary, establish reporting 
requirements to collect necessary information or data. The Committee 
needs data on grape shipments to provide an accurate basis for handler 
assessments and for the next season's marketing decisions.
    Prior to publication of the interim final rule (69 FR 21689, April 
22, 2004), the Committee obtained data on grape shipments during 
handler audits at the end of the season. These handler audits were time 
consuming and expensive for both the Committee staff and grape 
handlers. Detailed information follows on these burdens in the Final 
Regulatory Flexibility Analysis section of this document.
    Therefore, at its January 15, 2004, meeting and as clarified at its 
February 5, 2004, meeting, the Committee unanimously recommended and 
USDA subsequently approved establishment of Sec.  925.160 under the 
order's rules and regulations. Section 925.160 reads as follows: 
``Section 925.160 Reports. When requested by the California Desert 
Grape Administrative Committee, each shipper who ships grapes, shall 
furnish an end-of-season grape shipment report

[[Page 50284]]

(CDGAC-3) to the Committee no later than 10 days after the last day of 
shipment for the season or such later time as the Committee deems 
appropriate. Such reports shall show the reporting period (the date of 
the handler's first shipment and the date of the handler's last 
shipment), the name and other identification of the shipper and grower, 
the invoice number, shipping date, varietal name, shipment destination 
(city and state or country), and the number of lugs shipped (pounds).''
    The end-of-season grape shipment reporting requirements recommended 
by the Committee and subsequently approved by the USDA are similar to 
those required by the California Table Grape Commission (Commission) 
under a State of California program under which grape research and 
promotion activities are implemented. Because the Commission is 
prohibited from sharing confidential handler information, the Committee 
recommended that an end-of-season grape shipment report be developed 
for Committee use. Grape shipment data already compiled by handlers for 
the Commission will be attached to the Committee form to meet the new 
reporting requirements. Thus, handlers will not be duplicating their 
efforts and both agencies will receive necessary shipment data for 
respective program purposes.
    The Committee estimates that this action will continue to impact 20 
handlers of grapes and further estimates that, on average, each handler 
will expend approximately 30 minutes per year to prepare and submit 
this report and accompanying information to the Committee. The 
Committee believes that this action will continue to reduce handler 
costs, because the execution and submission of the end-of-season grape 
shipment report to the Committee is expected to be less costly and time 
consuming than yearly audits. The Committee vote was unanimous with 
nine in favor, zero opposed, and zero abstained. This revision does not 
impact the grape import regulation.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action 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. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 20 handlers of California grapes who are 
subject to regulation under the order and about 50 producers of grapes 
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 $5,000,000 and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000. Eight of the 20 handlers subject to regulation have annual 
grape sales of at least $5,000,000. In addition, 10 of the 50 producers 
have annual sales of at least $750,000. Therefore, a majority of 
handlers and producers may be classified as small entities.
    This rule continues in effect end-of-season reporting requirements 
authorized under the California grape order. Requiring handlers to file 
end-of-season grape shipment reports with the Committee enables the 
Committee to obtain accurate shipment data for assessment billing and 
for the next season's marketing decisions without incurring the expense 
of auditing every handler each season. Handler costs will continue to 
be reduced because the preparation and submission of end-of-season 
grape shipment reports is expected to be less costly and less time 
consuming than yearly handler audits. This action is in the best 
interest of producers and handlers.
    Section 925.41 of the grape order provides authority to assess each 
person who first handles grapes a pro rata share of the expenses which 
are reasonable and likely to be incurred by the Committee during a 
fiscal period.
    Section 925.60(b) of the grape order provides authority for 
establishing reporting requirements. Under the marketing order, the 
Committee may, with the approval of the Secretary, establish reporting 
requirements to collect necessary information or data. The Committee 
needs data on grape shipments to provide an accurate basis for handler 
assessments and for the next season's marketing decisions.
    Prior to issuance of the interim final rule, the Committee obtained 
data on grape shipments during handler audits at the end of the season. 
These handler audits are time consuming and expensive for both the 
Committee staff and grape handlers.
    Therefore, at its January 15, 2004, meeting and as further 
clarified at the Committee's February 5, 2004, meeting, the Committee 
unanimously recommended and USDA subsequently approved establishing 
Sec.  925.160 under the order's rules and regulations. Section 925.160 
reads as follows: ``Section 925.160 Reports. When requested by the 
California Desert Grape Administrative Committee, each shipper who 
ships grapes, shall furnish an end-of-season grape shipment report 
(CDGAC-3) to the Committee no later than 10 days after the last day of 
shipment for the season or such later time as the Committee deems 
appropriate. Such reports shall show the reporting period (the date of 
the handler's first shipment and the date of the handler's last 
shipment), the name and other identification of the shipper and grower, 
the invoice number, shipping date, varietal name, shipment destination 
(city and state), and the number of lugs shipped (pounds).''
    The end-of-season reporting requirements recommended by the 
Committee and subsequently approved by the USDA are similar to those 
now required by the California Table Grape Commission (Commission). The 
Commission administers a State of California research and promotion 
program for grapes produced in California. Because the Commission is 
prohibited from sharing confidential handler information, the Committee 
recommended that an end-of-season grape shipment report be developed 
for Committee use. Shipment data currently compiled by handlers for the 
Commission will be able to be attached to the newly developed Committee 
form to meet the Committee's shipment information needs. Thus, handlers 
will not be duplicating their efforts and both agencies will receive 
necessary shipment data for program activities. The Committee estimates 
that 20 grape handlers will be affected by this action with a total 
annual industry burden of approximately 10 hours (20 handlers x 30 
minutes = 10 hours).
    The Committee believes that handler costs will continue to be 
reduced because the preparation and submission of the end-of-season 
grape shipment report to the Committee is expected to be less costly 
and time consuming than yearly audits. Prior to issuance of the interim 
final rule, the 20 grape handlers regulated under the order paid 
approximately $5,283 and expended approximately 126 man-hours annually 
for the yearly audits. Approximately \1/3\ of the handler audits will 
continue to be conducted by the Committee for order compliance purposes 
each year. Therefore, the Committee continues to estimate that an 
annual savings of $3,698 and 88 man-hours for handlers

[[Page 50285]]

will be realized through the use of the end-of-season shipment reports.
    Additionally, this rule is expected to continue to affect the 
reduction in the number of hours of Committee staff time and 
administrative costs incurred by the Committee in conducting handler 
audits. Prior to issuance of the interim final rule, the Committee, in 
conducting audits of all industry handlers, annually spent about $3,600 
and about 300 man-hours. If only one-third of the handlers are audited 
each year, the Committee expects to save about $2,400 and about 200 
hours of Committee time. Thus, actual Committee costs using the new 
shipment form should be about $1,200 and 100 man-hours.
    The Committee discussed alternatives to this change, including 
requiring handlers to submit the end-of-season grape shipment report 5 
days after the end of the season. The Committee rejected the 5-day 
requirement, as they believe handlers need at least 10 days to complete 
end-of-season handler activities. Additionally, the Committee 
considered not establishing an end-of-season grape shipment report, but 
concluded, as previously mentioned, that adding an end-of-season grape 
shipment reporting requirement will significantly reduce handler costs, 
as submission of this report will be less costly and less time 
consuming than yearly handler audits. The Committee vote was unanimous 
with nine in favor, zero opposed, and zero abstained. This rule is in 
the interest of handlers and producers. These revisions do not impact 
the grape import regulation.
    Further, the Committee's meetings were widely publicized throughout 
the grape industry and all interested persons were invited to attend 
the meetings and participate in the Committee's deliberations. Like all 
Committee meetings, the January 15, 2004, and February 5, 2004, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on these issues.
    An interim final rule concerning this action was published in the 
Federal Register on April 22, 2004. Copies of the rule were mailed, e-
mailed or faxed by the Committee staff to all Committee members and 
grape handlers. In addition, the rule was made available through the 
Internet by the Office of the Federal Register and USDA. That rule 
provided for a 60-day comment period which ended June 21, 2004. No 
comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    As previously mentioned, this rule continues to impose some 
additional reporting and recordkeeping on both small and large grape 
handlers. This action continues to require one new Committee form. The 
information collection requirements are discussed below. 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. In addition, USDA has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), this notice announces that AMS has requested and obtained 
emergency approval from the Office of Management and Budget (OMB) for a 
new information collection request for Marketing Order No. 925, 
regulating the handling of grapes grown in a designated area of 
Southeastern California. This emergency approval was assigned OMB No. 
0581-0220. The emergency request was necessary because insufficient 
time was available to follow normal clearance channels. Upon final 
approval by OMB, this collection will be merged with the forms 
currently approved for use under OMB No. 0581-0189 ``Generic OMB Fruit 
Crops.''
    Title: Grapes Grown in a Designated Area of Southeastern 
California; Marketing Order No. 925.
    OMB Number: 0581-0220.
    Type of Request: New collection.
    Abstract: These information collection requirements are essential 
to carry out the intent of the Act, to provide the respondents the type 
of service they request, and to administer the California Desert Grape 
marketing order program, which has been operating since 1980.
    On January 15, 2004, the Committee unanimously recommended and the 
USDA subsequently approved the establishment of Sec.  925.160 under the 
order's rules and regulations, as further clarified by the Committee at 
its February 5, 2004, meeting. Section 925.160 requires handlers to 
furnish an end-of-season grape shipment report (CDGAC-3) to the 
Committee staff no later than 10 days after the last day of shipment 
for the season, or such later time, as the Committee deems appropriate. 
Any handler who ships grapes during the season will be required to 
report total shipments, and related information, to the Committee. The 
information requirements created by this action will be reported using 
one new Committee form, and by attaching shipment information required 
under the State of California research and promotion program to that 
form. The new reporting requirement assists the Committee in obtaining 
accurate shipment data for assessment billing and for the next season's 
marketing decisions.
    The information collected will be used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable 
Programs' regional and headquarters' staff, and authorized Committee 
employees. Authorized Committee employees are the primary users of the 
information and AMS is the secondary user.
    The request for approval of the new information collection under 
the order is as follows:
    End of Season Shipment Report, CDGAC Form No. 3
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 30 minutes per response.
    Respondents: Persons who ship California grapes from a designated 
area of Southeastern California.
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 10 hours.
    No comments were submitted on this information collection. As 
mentioned before, because there was insufficient time for a normal 
clearance procedure and prompt implementation was needed, AMS has 
obtained emergency approval from OMB for the use of this form for the 
2004 regulation period, which began April 2004. Upon final approval by 
OMB, this collection will be merged with the forms currently approved 
for use under OMB No. 0581-0189 ``Generic OMB Fruit Crops.''
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (69 FR 21689, April 22, 2004) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 925

    Grapes, Marketing agreements and orders, Reporting and 
recordkeeping requirements.

[[Page 50286]]

PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN 
CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 925 which was 
published at 69 FR 21689 on April 22, 2004, is adopted as a final rule 
without change.

    Dated: August 10, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-18609 Filed 8-13-04; 8:45 am]
BILLING CODE 3410-02-P