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Rules and Regulations Federal Register

70571 

Vol. 75, No. 222 

Thursday, November 18, 2010 

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: Jeffrey.Smutny@

ams.usda.gov or Kurt.Kimmel@ams.

usda.gov. 

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: 

Antoinette.Carter@ams.usda.gov. 

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 


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70572 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 

Committee’s expenses. Handlers may 

also dispose of cull dates of their own 

production within their own livestockfeeding operation; otherwise, such cull 

dates must be shipped or delivered to 

the Committee for sale to non-human 

food product outlets. Pursuant to 

§ 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] × 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 


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

■ 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 

■ 1. The authority citation for 7 CFR 

part 987 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 987.339 is revised to read 

as follows: 

§ 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1221 

[Doc. No. AMS–LS–10–0003] 

Sorghum Promotion and Research 

Program: Procedures for the Conduct 

of Referenda 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Commodity Promotion, 

Research, and Information Act of 1996 

(Act) authorizes a program of 

promotion, research, and information to 

be developed through the promulgation 

of the Sorghum Promotion, Research, 

and Information Order (Order). The Act 

requires that the Secretary of 

Agriculture (Secretary) conduct a 

referendum among persons subject to 

assessments who, during a 

representative period established by the 

Secretary, have engaged in the 

production or importation of sorghum. 

This final rule establishes procedures 

the Department of Agriculture (USDA) 

will use in conducting the required 

referendum as well as future referenda. 

Eligible persons will be provided the 

opportunity to vote during a specified 

period announced by USDA. For the 

program to continue, it must be 

approved, with an affirmative vote, by at 

least a majority of those persons voting 

who were engaged in the production or 

importation of sorghum during the 

representative period. 

DATES: Effective Date: December 20, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth R. Payne, Chief, Marketing 

Programs Branch on 202/720–1115, fax 

202/720–1125, or by e-mail at Kenneth.

Payne@ams.usda.gov or Rick Pinkston, 

USDA, FSA, DAFO, on 202/690–8034, 

fax 202/720–5900, or by e-mail on 

rick.pinkston@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

This final rule has been determined 

not significant for purposes of Executive 

Order 12866 and therefore has not been 

reviewed by the Office of Management 

and Budget (OMB). 

Executive Order 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. Section 524 of 

the Act provides that the Act shall not 

affect or preempt any other Federal or 

State law authorizing promotion or 

research relating to an agricultural 

commodity. 

Under section 519 of the Act, a person 

subject to the Order may file a petition 

with the Secretary stating that the 

Order, any provision of the Order, or 

any obligation imposed in connection 

with the Order is not established in 

accordance with the law, and may 

request a modification of the Order or 

an exemption from the Order. Any 

petition filed challenging the Order, any 

provision of the Order, or any obligation 

imposed in connection with the Order, 

shall be filed within 2 years after the 

effective date of the Order, provision, or 

obligation subject to challenge in the 

petition. The petitioner will have the 

opportunity for a hearing on the 

petition. Thereafter, the Secretary will 

issue a ruling on the petition. The Act 

provides that the district court of the 

United States for any district in which 

the petitioner resides or conducts 

business shall have the jurisdiction to 


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