[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Rules and Regulations]
[Pages 56697-56699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26369]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Doc. No. AMS-FV-09-0045; FV09-987-2 FR]


Domestic Dates Produced or Packed in Riverside County, CA; 
Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate established for the 
California Date Administrative Committee (Committee) for the 2009-10 
and subsequent crop years from $0.60 to $0.75 per hundredweight of 
dates handled. The Committee locally administers the marketing order 
which regulates the handling of dates grown or packed in Riverside 
County, California. Assessments upon date handlers are used by the 
Committee to fund reasonable and necessary expenses of the program. The 
crop year begins October 1 and ends September 30. The assessment rate 
will remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective Date: November 4, 2009.

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 rule is issued under Marketing Order 
No. 987, as amended (7 CFR part 987), regulating the handling of dates 
grown 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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, California 
date handlers are subject to assessments. Funds to administer the order 
are derived from such assessments. It is intended that the assessment 
rate as issued herein will be applicable to all assessable dates 
beginning October 1, 2009, 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 2009-10 and subsequent crop years from $0.60 to $0.75 
per hundredweight of dates handled.
    The California date marketing 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 
California dates. 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 2008-09 and subsequent crop years, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from crop year to crop year 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 June 9, 2009, and unanimously recommended 
2009-10 expenditures of $200,000 and an assessment rate of $0.75 per 
hundredweight of California dates. In comparison, last year's budgeted 
expenditures were $176,384. The assessment rate of $0.75 is $0.15 
higher than the rate currently in effect. The Committee recommended a 
higher assessment rate to cover increased expenses including increased 
marketing and promotion efforts, and nutritional research. Income 
generated through the higher assessment rate combined with reserve 
funds should be sufficient to cover anticipated 2009-10 expenses.
    Section 987.72(c) states that the reserve may not exceed 50 percent 
of

[[Page 56698]]

the average of expenses incurred during the most recent five preceding 
crop years. With higher anticipated expenses, the reserve at the end of 
the 2009-10 crop year is not projected to exceed this limit.
    Income from sales of cull dates are deposited in a surplus account 
for subsequent use by the Committee to cover the surplus pool share of 
the Committee's expenses. Handlers may also dispose of cull dates of 
their own production within their own livestock-feeding operation; 
otherwise, such cull dates must be shipped or delivered to the 
Committee for sale to non-human food product outlets. Pursuant to Sec.  
987.72(b), the Committee is authorized to temporarily use funds derived 
from assessments to defray expenses incurred in disposing of surplus 
dates. All such expenses are required to be deducted from proceeds 
obtained by the Committee from the disposal of surplus dates. For the 
2009-10 crop year, the Committee estimated that $1,500 from the surplus 
account would be needed to temporarily defray expenses incurred in 
disposing of surplus dates.
    The major expenditures recommended by the Committee for the 2009-10 
crop year include $60,000 for general and administrative programs, 
$97,000 for promotional programs, and $28,000 for marketing and media 
consulting. The Committee also budgeted $15,000 to conduct nutritional 
research. They also plan a series of events to commemorate the tenth 
anniversary of their annual date Chef's competition.
    By comparison, expenditures recommended by the Committee for the 
2008-09 crop year included $66,384 for general and administrative 
programs, $82,000 for promotional programs, $28,000 for marketing and 
media consulting.
    The assessment rate of $0.75 per hundredweight of assessable dates 
was derived by applying the following formula

Where:

A = 2008-09 estimated reserve on 09/30/09 ($65,566);
B = 2009-10 estimated reserve on 09/30/10 ($39,566);
C = 2009-10 expenses ($200,000);
D = Cull Surplus Fund ($1,500);
F = 2009-10 expected shipments (23,000,000 pounds).

[(C - A + B - D)/F] x 100.

    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 
crop year 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 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 2009-10 budget and those for subsequent crop years 
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 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 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 3.57 tons of dates were produced per acre. The 2008 grower price 
published by NASS was $1,580 per ton. Thus, the value of date 
production in 2008 averaged about $5,640 per acre (3.57 tons per acre 
times $1580 per ton). At that average price, a producer would have to 
harvest 133 acres to receive an annual income from dates of $750,000 
($750,000 divided by $5,640 per acre equals 133 acres).
    According to committee staff, the majority of California date 
producers farm fewer 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 rule increases the assessment rate established for the 
Committee and collected from handlers for the 2009-10 and subsequent 
crop years from $0.60 to $0.75 per hundredweight of dates handled. The 
Committee unanimously recommended 2009-10 expenditures of $200,000 and 
an assessment rate of $0.75 per hundredweight of dates. The assessment 
rate of $0.75 is $0.15 higher than the 2008-09 rate currently in 
effect. The quantity of assessable dates for the 2009-10 crop year is 
estimated at 11,500 tons or 230,000 hundredweight of dates. Thus, the 
$0.75 rate should provide $172,500 in assessment income and, with 
reserve funds of $65,566 and the $1,500 contribution from the surplus 
program, will be adequate to meet the 2009-10 crop year expenses.
    The major expenditures recommended by the Committee for the 2009-10 
crop year include $60,000 for general and administrative programs, 
$97,000 for promotional programs, and $28,000 for marketing and media 
consulting. The Committee also budgeted $15,000 to conduct nutritional 
research. They also plan a series of events to commemorate the tenth 
anniversary of their annual date Chef's competition.
    The Committee reviewed and unanimously recommended 2009-10 crop 
year expenditures of $200,000. Prior to arriving at this budget, the 
Committee considered information from various sources, such as the 
Committee's Marketing Subcommittee. Alternative expenditure levels were 
an option available to the Committee, but the Committee ultimately 
decided that the recommended levels were reasonable to properly 
administer the order. The assessment rate of $0.75 per hundredweight of 
dates was then derived, based upon the Committee's estimates of the 
incoming reserve, income, and anticipated expenses.
    As previously noted, according to the NASS data, the average grower 
price for 2008 crop dates was $1,580 per ton, or $79 per hundredweight. 
The average grower price for the period of 2004-08 was $1,750 per ton, 
or $87.50 per hundredweight. No official NASS estimate is available yet 
for 2009.
    A review of historical information and preliminary information 
pertaining to

[[Page 56699]]

the upcoming crop year indicates that the grower price for the 2009 
date crop could range between $65.50 and $114.50 per ton. Therefore, 
the estimated assessment revenue for the 2009 crop year as a percentage 
of total grower revenue could range between 0.7 percent and 1.1 
percent.
    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 
are offset by the benefits derived from the operation of the marketing 
order. In addition, the Committee's meeting was widely publicized 
throughout the California date industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 9, 
2009, meeting was a public meeting and all entities, both large and 
small, were encouraged to express views on this issue.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large California date 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 August 28, 2009 (74 FR 44304). Copies of the proposed rule 
were also provided to all date 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 September 28, 2009, 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: 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.
    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 the crop year 
began on October 1, 2009; handlers are already receiving 2009-10 dates 
from growers; and the assessment rate applies to all dates received 
during the 2009-10 and subsequent seasons. Further, handlers are aware 
of this rule, which was recommended at a public meeting. Finally, a 30-
day comment period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 987

    Dates, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 987 is amended as 
follows:

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

0
1. The authority citation for 7 CFR part 987 continues to read as 
follows:

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


0
2. Section 987.339 is revised to read as follows:


Sec.  987.339  Assessment rate.

    On and after October 1, 2009, an assessment rate of $0.75 per 
hundredweight is established for California dates.

    Dated: October 27, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-26369 Filed 11-2-09; 8:45 am]
BILLING CODE 3410-02-P