[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Rules and Regulations]
[Pages 70571-70573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29107]



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  Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / 
Rules and Regulations  

[[Page 70571]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Doc. No. AMS-FV-10-0059; FV10-987-2 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rule increases the assessment rate established for the 
California Date Administrative Committee (Committee) for the 2010-11 
and subsequent crop years from $0.75 to $1.00 per hundredweight of 
dates handled. The Committee locally administers the marketing order 
that 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 19, 2010.

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 Antoinette Carter, 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, Riverside 
County, 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, 2010, and will 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 2010-11 and subsequent crop years from $0.75 to $1.00 
per hundredweight of dates.
    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 2009-10 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 24, 2010, and unanimously recommended 
2010-11 expenditures of $245,000 and an assessment rate of $1.00 per 
hundredweight of California dates. In comparison, last year's budgeted 
expenditures were $200,000. The modified assessment rate of $1.00 is 
$0.25 higher than the rate currently in effect. The Committee 
recommended a higher assessment rate to offset the 2010-11 budgeted 
increases in salaries, operating expenses, and promotion programs, and 
to build their operating reserve. The higher assessment rate should be 
sufficient to cover the 2010-11 budgeted expenses and meet their 
financial goals.
    Section 987.72(c) authorizes the Committee to establish and 
maintain an operating reserve not to exceed 50 percent of an average 
year's expenses. Funds from the reserve are available for the 
Committee's use during the crop year to cover budgeted expenses as 
necessary or for other purposes deemed appropriate by USDA. The 
Committee expects to carry a $40,000 reserve into the 2010-11 crop 
year. They expect to add $16,500 to the reserve during the year, for a 
desired carryout of approximately $56,000, which is well below the 
limit specified in the order.
    Income from the sale of cull dates is deposited in a surplus 
account for subsequent use by the Committee to cover the surplus pool 
share of the

[[Page 70572]]

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 2010-11 crop 
year, the Committee estimated that $1,500 from the surplus account will 
be needed to temporarily defray expenses incurred in disposing of 
surplus dates.
    The major expenditures recommended by the Committee for the 2010-11 
crop year include $85,000 for general and administrative programs, 
$127,875 for promotional programs, $17,900 for nutritional research, 
and $14,225 for marketing and media consulting. The budgeted amount for 
promotional programs includes a $29,000 contingency fund that will 
allow the Committee to take advantage of unexpected marketing 
opportunities that may present themselves during the year.
    By comparison, expenditures recommended by the Committee for the 
2009-10 crop year included $60,000 for general and administrative 
programs, $97,000 for promotional programs, $15,000 for nutritional 
research, and $28,000 for marketing and media consulting.
    The assessment rate of $1.00 per hundredweight of assessable dates 
was derived by applying the following formula where:

A = 2009-10 estimated reserve on 09/30/10 ($40,000);
B = 2010-11 estimated reserve on 09/30/11 ($56,500);
C = 2010-11 expenses ($245,000);
D = Cull Surplus Fund ($1,500);
F = 2010-11 expected shipments (26,000,000 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 2010-11 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, 2009-10, indicates that 
about 3.8 tons, or 7,600 pounds, of dates were produced per acre. The 
2009-10 producer price published by NASS was $1,450 per ton, or $0.725 
per pound. Thus, the value of date production in 2009-10 averaged about 
$5,510 per acre (7,600 pounds per acre times $0.725 per pound). At that 
average price, a producer would have to farm more than 136 acres to 
receive an annual income from dates of $750,000 ($750,000 divided by 
$5,510 per acre equals 136.1 acres). According to the Committee's 
staff, the majority of California date producers farm fewer than 136 
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 California date handlers may also be 
considered small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2010-11 and subsequent 
crop years from $0.75 to $1.00 per hundredweight of dates handled. The 
Committee unanimously recommended 2010-11 expenditures of $245,000 and 
an assessment rate of $1.00 per hundredweight of dates. The assessment 
rate of $1.00 is $0.25 higher than the 2009-10 rate currently in 
effect. The quantity of assessable dates for the 2010-11 crop year is 
estimated at 26,000,000 pounds. Thus, the $1.00 rate should provide 
approximately $260,000 in assessment income and will be adequate to 
meet the budgeted expenses.
    The major expenditures recommended by the Committee for the 2010-11 
crop year include $85,000 for general and administrative programs, 
$127,875 for promotional programs, $17,900 for nutritional research, 
and $14,225 for marketing and media consulting. The Committee also 
hopes to add $16,500 to its operating reserve. Prior to arriving at 
this budget, the Committee considered information from various sources, 
such as the Committee's Marketing Subcommittee. Alternative expenditure 
levels were discussed, but the Committee ultimately decided that the 
recommended levels were reasonable to properly administer the order. 
The assessment rate of $1.00 per hundredweight of dates was then 
derived, based upon the Committee's estimates of the available 
operating reserve, projected crop size, and anticipated expenses.
    As previously noted, NASS reported that the average producer price 
for 2009-10 crop dates was $1,450 per ton, or $72.50 per hundredweight. 
No official NASS estimate is available yet for 2010-11. However, the 
average grower price for the three year period between 2007-08 and 
2009-10 was $1,756.67 per ton, or $87.83 per hundredweight.
    Assuming that the average producer price for 2010-11 will range 
between $72.50 and $87.83 per hundredweight, the estimated assessment 
revenue, stated as a percentage of producer revenue, will range between 
1.38 and 1.14 percent ($1.00 per hundredweight divided by either $72.50 
or $87.83 per hundredweight). Thus, assessment revenue should be less 
than 1.5 percent of estimated producer revenue for 2010-11.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal

[[Page 70573]]

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 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 24, 2010, meeting was a public meeting 
and all entities, both large and small, were able 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 September 15, 2010 (75 FR 56019). Copies of the proposed 
rule were also mailed or sent via facsimile to all California date 
handlers. Finally, the proposal was made available through the Internet 
by USDA and the Office of Federal Register. A 30-day comment period 
ending October 15, 2010, 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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter 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 handlers have 
already received 2010 dates from growers, the crop year began on 
October 1, 2010, and the assessment rate applies to all dates received 
during the 2010-11 and subsequent seasons. 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--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, 2010, an assessment rate of $1.00 per 
hundredweight is established for California dates.

    Dated: November 10, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-29107 Filed 11-17-10; 8:45 am]
BILLING CODE 3410-02-P