[Federal Register Volume 74, Number 225 (Tuesday, November 24, 2009)]
[Rules and Regulations]
[Pages 61265-61267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28153]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule revises the nomination procedures and changes 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 
changes the method of polling for nominees to the Committee and the 
date on which CDAC Form 6 is due. These changes will assist in the 
administration of the order by updating and streamlining Committee 
program operations.

DATES: Effective Date: November 25, 2009.

FOR FURTHER INFORMATION CONTACT: Jeff Smutny, 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 final rule 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 final rule 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 rule revises the nomination procedures and changes a reporting 
date under the order. This rule changes the method of polling for 
nominees to the Committee and the date on which CDAC Form 6 is due for 
the California Date Administration Committee. These changes will assist 
in the administration of the order by updating and streamlining 
Committee program operations. This final rule permits 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 final rule also changes 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

[[Page 61266]]

final rule relaxes 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 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 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 will 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 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 can report 
more conveniently, and Committee and commission operations will be 
coordinated and streamlined.

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 revised 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 $1,580 per ton). At that average price, a producer would have to 
have over 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 133 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 final rule authorizes the Committee to conduct nominations via 
mail or equivalent electronic means, and revises 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 will be positively impacted by mail balloting, 
as they will not have to set aside time to drive to the Committee 
offices to vote for Committee members and alternate members, nor will 
they have to plan ahead to request absentee ballots.
    Handlers will 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 will, thus, be streamlined.
    The benefits for this final 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 provides the industry with increased 
flexibility, outreach, and convenience by offering an opportunity for 
polling on more than just one day. Changing the due date for the CDAC 
Form 6 will also increase the reporting handlers' convenience. Both 
changes 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

[[Page 61267]]

operations, including these two changes.
    This final rule provides more flexibility on Committee polling 
procedures and changes the due date for CDAC Form 6 under the date 
marketing order. Accordingly, this action will 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. As noted in the 
initial regulatory flexibility analysis, 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 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 able to express views on this issue.
    A proposed rule concerning this action was published in the Federal 
Register on September 15, 2009 (74 FR 47124). The proposed regulatory 
text that was published in the Federal Register contained incorrect 
references that have been corrected in this final rule. Copies of the 
rule were mailed or sent via facsimile to all Committee members and 
date handlers. Finally, the rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 30-day 
comment period ending October 15, 2009, was provided to allow 
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 matters 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because handlers are already shipping 
dates for the 2009-2010 crop. Therefore, this rule should be 
implemented as soon as possible. Further, handlers are aware of this 
rule, which was recommended at a public meeting. Also, 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. 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)(1) and (b)(2) 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.
* * * * *

0
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: November 17, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-28153 Filed 11-23-09; 8:45 am]
BILLING CODE 3410-02-P