[Federal Register Volume 74, Number 177 (Tuesday, September 15, 2009)]
[Proposed Rules]
[Pages 47124-47126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22065]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / 
Proposed Rules  

[[Page 47124]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Doc. No. AMS-FV-09-0035; FV09-987-1 PR]


Domestic Dates Produced or Packed in Riverside County, CA; 
Changes to Nomination Procedures and a Reporting Date

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule invites comments on revisions to the nomination 
procedures and a change to a reporting date under the California date 
marketing order (order). The order regulates the handling of domestic 
dates produced or packed in Riverside County, California, and is 
administered locally by the California Date Administrative Committee 
(CDAC or committee). This rule would change the method of polling for 
nominees to the committee and the date on which CDAC Form 6 is due. 
These changes are expected to assist in the administration of the order 
by updating and streamlining committee program operations.

DATES: Comments must be received by October 15, 2009.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number, 
and the date and page number of this issue of the Federal Register, and 
will be made available for public inspection in the Office of the 
Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing 
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 
487-5906, or e-mail: [email protected] or 
[email protected].
    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 proposal is issued under Marketing 
Agreement and Order No. 987, both as amended (7 CFR part 987), 
regulating the handling of domestic dates produced or packed in 
Riverside County, 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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect.
    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 proposal invites comments on revisions to the nomination 
procedures and a reporting date under the California date marketing 
order. This rule would permit the committee to conduct nominations for 
member and alternate member positions on the committee through the mail 
or equivalent electronic means (including, but not limited to fax, or 
other technology, as available) rather than limit balloting to in-
person polling on a specific date or absentee balloting.
    This rule would also change the date on which CDAC Form 6 is due to 
the committee. Currently, the form is due by the 10th day of each 
month, but this rule would relax the reporting requirement by changing 
the due date to the 16th day of each month or such other date as the 
committee may prescribe. These changes were recommended unanimously by 
the committee at a meeting on October 30, 2008. A meeting of the 
Marketing Order Policy Review Subcommittee was held on October 21, 
2008. At that meeting, the subcommittee discussed various proposals for 
improving committee operations, including these two proposed changes.
    Section 987.24 of the order specifies that nominations shall be 
made no later than June 15 of every other year, and establishes 
procedures for nominations for membership on the committee by requiring 
the committee to establish a polling day for receiving committee 
nominations, and procedures for requesting and returning absentee 
ballots. This section also provides authority for the committee, with 
the approval of the Secretary, to recommend rules and regulations on 
the manner in which nominees may be obtained.
    Section 987.124 of the order's rules and regulations further 
specifies the date, time, and procedure for polling, as well as for 
obtaining and casting absentee ballots.
    At its meeting on October 30, 2008, the committee recommended that 
nominations be permitted through the mail or by other electronic means 
equivalent to the mail. When the order

[[Page 47125]]

was promulgated, there were a number of absentee date garden owners, 
and the advent of the polling day permitted the owners to travel to the 
area to vote on nominees to the committee.
    Section 987.62 of the date order provides authority for the 
committee to require reports of dates shipped from handlers. In Sec.  
987.162 of the order's rules and regulations, CDAC Form 6 is specified 
as the handler acquisition and disposition report, and is currently due 
by the 10th day of each month.
    There also is a California State marketing program, administered by 
the California Date Commission (commission). Under that program, the 
due date for the same type of information is the 16th of each month. 
Changing the due date of the CDAC Form 6 would simplify reporting by 
handlers as well as coordinate the operations of the committee and 
commission, since the committee staff is also the commission staff.

Deliberations on the Proposed Changes

    In its deliberations on mail balloting, the committee commented 
that the current system is outmoded and cumbersome. Authorizing the 
committee to conduct nominations via mail or equivalent electronic 
means could result in greater industry participation in the nomination 
process, with the possible result being greater committee outreach and 
diversity of committee representation.
    In their deliberations regarding the due date for CDAC Form 6, the 
committee discussed the confusion created by the State and Federal 
programs' differing due dates. Handlers report to the committee on the 
10th day of the month and to the commission on the 16th day of the 
month. By making both reports due the same day, handlers could report 
more conveniently, and committee and commission operations would be 
coordinated and streamlined.

Initial 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 action on small entities. 
Accordingly, AMS has prepared this initial 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 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 85 producers of dates in the production 
area and 9 handlers subject to regulation under the marketing order. 
The Small Business Administration (13 CFR 121.201) defines small 
agricultural producers as those having annual receipts of less than 
$750,000, and small agricultural service firms are defined as those 
having annual receipts of less than $7,000,000.
    According to the National Agricultural Statistics Service (NASS), 
data for the most-recently completed crop year, 2008, indicates that 
about 3.34 tons, or 6,680 pounds, of dates were produced per acre. The 
2008 grower price published by NASS was $1,470 per ton, or $.735 per 
pound. Thus, the value of date production in 2008 averaged about $4,909 
per acre (6,680 pounds per acre times $.735 per pound). At that average 
price, a producer would have to have over 152 acres to receive an 
annual income from dates of $750,000 ($750,000 divided by $4,909 per 
acre equals 152.7 acres). According to committee staff, the majority of 
California date producers farm less than 152 acres. Thus, it can be 
concluded that the majority of date producers could be considered small 
entities. According to data from the committee, the majority of 
handlers of California dates may also be considered small entities.
    This proposal would authorize the committee to conduct nominations 
via mail or equivalent electronic means, and would revise the due date 
for CDAC Form 6 from the 10th day each month to the 16th day of each 
month or such other date as the committee may prescribe.
    The committee unanimously recommended these changes at their 
meeting on October 30, 2008. At the meeting, the committee discussed 
the impact of these changes on handlers and producers in terms of cost. 
Handlers and producers would be positively impacted by mail balloting, 
as they would not have to set aside time to drive to the committee 
offices to vote for committee members and alternate members, nor would 
they have to plan ahead to request absentee ballots.
    Handlers would also be positively impacted by the change in the due 
date of the CDAC Form 6, since changing the due date of the committee 
form brings the requirement into line with the due date of the 
commission form, which seeks identical information. Handlers will 
simply be able to file the forms on the same day. Committee and 
commission operations would, thus, be streamlined.
    The benefits for this rule are not expected to be 
disproportionately greater or less for small handlers or producers than 
for larger entities.
    The committee discussed alternatives to these changes, including 
not conducting mail balloting or changing the due date of the CDAC Form 
6. However, mail balloting would provide the industry with increased 
flexibility, outreach, and convenience by offering an opportunity for 
polling on more than just one day. A change of the due date for the 
CDAC Form 6 would also increase the reporting handlers' convenience. 
Both changes would improve the administration of the program and keep 
informational data filing uniform between the committee and the 
commission. For those reasons, the changes are advantageous to all 
entities, as well as to the committee staff. As a result, the committee 
members unanimously agreed that these changes should be recommended and 
should be in effect for the 2009-10 crop year, beginning on October 1, 
2009.
    A meeting of the Marketing Order Policy Review Subcommittee was 
held on October 21, 2008. At that meeting, the subcommittee discussed 
various proposals for improving committee operations, including these 
two proposed changes.
    This proposed rule would provide more flexibility on committee 
polling procedures and change the due date for CDAC Form 6 under the 
date marketing order. Accordingly, this action would not impose any 
additional reporting or recordkeeping requirements on either small or 
large date handlers.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection requirements contained in this 
rule have been previously approved by the Office of Management and 
Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty 
Crops. 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.
    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.
    In addition, the committee's meeting was widely publicized 
throughout the date industry, and all interested persons were invited 
to attend the meeting and

[[Page 47126]]

encouraged to participate in committee deliberations on all issues. 
Like all committee meetings, the October 30, 2008, meeting was a public 
meeting and all entities, both large and small, were encouraged to 
express their views on this issue. Finally, interested persons are 
invited to submit comments on this proposed rule, including the 
regulatory and informational impacts of this action on small 
businesses.
    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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Jay Guerber at the previously mentioned address in the FOR FURTHER 
INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate because: 
(1) This rule should be in place at the beginning of the crop year, 
October 1, 2009; (2) this rule was unanimously recommended at a public 
meeting; and (3) this rule is a relaxation of nomination procedures and 
reporting requirements. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 987

    Dates, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 987 is 
proposed to be amended as follows:

PART 987--DOMESTIC DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY, 
CALIFORNIA

    1. The authority citation for 7 CFR part 987 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.


Sec.  987.124  [Amended]

    2. In Sec.  987.124, paragraph (a) is revised to read as follows:


Sec.  987.124  Nomination and polling.

    (a) Date producers and producer-handlers shall be provided an 
opportunity to nominate and vote for individuals to serve on the 
committee. For this purpose, the committee shall, no later than June 15 
of each even-numbered year, provide date producers and producer-
handlers nomination and balloting material by mail or equivalent 
electronic means, upon which producers and producer-handlers may 
nominate candidates and cast their votes for members and alternate 
members of the committee in accordance with the requirements in 
paragraphs (b) and (c) of this section, respectively. All ballots are 
subject to verification. Balloting material should be provided to 
voters at least 2 weeks before the due date and should contain, at 
least, the following information:
    (1) The names of incumbents who are willing to continue to serve on 
the committee;
    (2) The names of other persons willing and eligible to serve;
    (3) Instructions on how voters may add write-in candidates;
    (4) The date on which the ballot is due to the committee or its 
agent; and
    (5) How and where to return ballots.
* * * * *
    3. Section 987.162 is revised to read as follows:


Sec.  987.162  Handler acquisition and disposition.

    (a) Handlers shall file CDAC Form No. 6 with the committee by the 
16th of each month or such other date as the committee may prescribe, 
reporting at least the following for the preceding month:
    (1) Their acquisitions of field run dates;
    (2) Their shipments of marketable dates in each outlet category;
    (3) Their shipments of free dates and disposition of restricted 
dates, whenever applicable; and
    (4) Their purchases from other handlers of DAC, export, product, 
graded, and field run dates.
    (b) In addition, this report shall include the names and addresses 
of any producers not previously identified pursuant to Sec.  987.38, 
the quantity of dates acquired from each producer, the location of such 
producer's date garden, the acreage of that garden, and the estimated 
current season's production from that garden.

    Dated: September 9, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-22065 Filed 9-14-09; 8:45 am]
BILLING CODE 3410-02-P