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[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Rules and Regulations]
[Pages 37762-37766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15428]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Doc. No. AMS-FV-10-0025; FV10-987-1 FR]

Domestic Dates Produced or Packed in Riverside County, CA; Order 
Amending Marketing Order 987

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends Marketing Agreement and Order No. 987 
(order), which regulates the handling of domestic dates produced or 
packed in Riverside County, California. The amendments approved by 
producers in referendum were proposed by the California Date 
Administrative Committee (CDAC or committee), which is responsible for 
local administration of the order. The amendments are intended to 
improve administration of and compliance with the order and reflect 
current industry practices. Two amendments proposed by the Agricultural 
Marketing Service (AMS) were not approved in referendum.

DATES: This rule is effective July 25, 2012.

FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order and 
Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: 
(559) 487-5110, Fax: (559) 487-5906, or Kathleen M. Finn, Marketing 
Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 
1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
Martin.Engeler@ams.usda.gov or Kathy.Finn@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Laurel.May@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This 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

[[Page 37763]]

amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' The 
applicable rules of practice and procedure governing the formulation of 
marketing agreements and orders (7 CFR part 900) authorize amendment of 
the order through this informal rulemaking action.
    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. 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.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) made changes to section 18c(17) of 
the Act, which in turn required the addition of supplemental rules of 
practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The 
additional supplemental rules of practice authorize the use of informal 
rulemaking (5 U.S.C. 553) to amend federal fruit, vegetable, and nut 
marketing agreements and orders if certain criteria are met.
    AMS has considered the nature and complexity of the proposed 
amendments, the potential regulatory and economic impacts on affected 
entities, and other relevant matters, and has determined that amending 
the order as proposed by the committee could appropriately be 
accomplished through informal rulemaking.
    The committee's proposed amendments were recommended following 
deliberations at public meetings on October 30, 2008; October 29, 2009; 
and February 25, 2010. The proposed amendments were first submitted to 
AMS on May 29, 2009. After further discussions with AMS, the committee 
submitted revised proposals to AMS on March 2, 2010.
    A proposed rule soliciting comments on the proposed amendments was 
issued on June 6, 2011, and published in the Federal Register on June 
14, 2011 (76 FR 34618). No comments were received. A proposed rule and 
referendum order was issued on November 3, 2011, and published in the 
Federal Register on November 9, 2011 (76 FR 69678). This document 
directed that a referendum among date producers be conducted during the 
period January 16, 2012 through February 3, 2012, to determine whether 
they favor the proposed amendments to the order. To become effective, 
the amendments had to be approved by at least two-thirds of the 
producers voting, or two-thirds of the volume of dates represented by 
voters in the referendum. The amendments recommended by the committee 
were favored by more than 92 percent of those voting in the referendum 
and by more than 99 percent of the volume represented in the 
referendum.
    The amendments included in this final rule will: (1) Authorize the 
committee to recommend regulatory exemptions for certain date varieties 
if market conditions warrant such exemption; (2) Increase the terms of 
office for committee members and alternates from two to three years; 
(3) Authorize the committee to conduct business by means of telephone 
or video conference technologies; (4) Authorize the committee to 
collect interest charges and late fees on delinquent assessment 
payments; and (5) Authorize the committee to build and maintain an 
operating monetary reserve not to exceed one year's average expenses.
    An amended marketing agreement was subsequently provided to all 
date handlers in the production area for their approval. The marketing 
agreement was approved by handlers representing more than 50 percent of 
the volume of dates handled by all handlers covered under the order.
    Two amendments concerning periodic continuance referenda and 
committee member term limits recommend by AMS were not approved by 
producers in referendum.

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 79 producers of dates in the production 
area and 8 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), 
the 2010 crop yield was approximately 7,080 pounds, or 3.54 tons, of 
dates per acre. NASS estimates that the 2010 grower price was 
approximately $0.585 per pound, or $1,170 per ton. Thus, the value of 
date production in 2010 averaged about $4,142 per acre (7,080 pounds 
per acre times $0.585 per pound). At that average price, a producer 
would have to farm over 181 acres to receive an annual income from 
dates of $750,000 ($750,000 divided by $4,142 per acre equals 181.1 
acres). According to committee staff, the majority of California date 
producers farm fewer than 181 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.
    The amendments will authorize the committee to recommend regulatory 
exemptions for dates by variety, provide for three years terms of 
office for committee members, provide for committee meetings by 
telephone and other means of communication, authorize an operating 
monetary reserve not to exceed one year's average expenses, and 
authorize the collection of interest and late payment charges on 
delinquent assessment payments.
    Conforming changes to the order's administrative rules and 
regulations will be made to facilitate implementation of the amendments 
approved by voters in the referendum. Specifically, the committee's 
nomination and polling procedures will be modified to require that 
balloting materials be provided to producers by June 15 of every third 
year.
    The amendments were unanimously recommended at public meetings held

[[Page 37764]]

on October 30, 2008; October 29, 2009; and February 25, 2010. The 
committee believes that each of their amendments will benefit producers 
and handlers of all sizes.
    The amendment granting authority to temporarily exempt certain date 
varieties from regulation will allow the committee to determine whether 
the costs of collecting assessments and reports on individual varieties 
are warranted. Handler burden related to those functions will be 
reduced for exempted varieties. Decreases in handler assessment 
obligation and reporting costs could be passed on to producers. 
Administrative costs related to enforcing regulatory compliance for 
those varieties will also be reduced.
    Producer and handler participation in committee nominations is 
expected to improve when member terms of office are extended from two 
to three years. Extending the terms of office will afford the committee 
more time to identify and develop potential new members between 
committee selections. Coordinating committee nomination periods with 
those of other industry programs is expected to reduce voter confusion 
and increase the number of ballots returned, thus improving producer 
and handler representation on the committee.
    Adding authority for alternative meeting formats is expected to 
improve participation in committee deliberations by industry members of 
all sizes. Using alternative meeting formats will minimize the time 
that committee members are required to be away from their individual 
businesses. Authorizing the chairperson to determine the format for 
each meeting will ensure that critical committee business is addressed 
appropriately. By providing greater flexibility for meeting attendance 
and participation, the committee hopes to benefit from the input of a 
greater number of interested persons whose perspectives and ideas could 
improve the marketing of California dates, which would in turn benefit 
both producers and handlers.
    Authorizing the committee to impose interest and late payment 
charges on delinquent assessments is intended to encourage handlers to 
make payments on a timely basis. There will be no additional cost to 
handlers who comply with the order's assessment requirements. Timely 
assessment payments allow the committee to make and keep financial 
obligations with regard to operation of its programs, including 
marketing and promotion, which are intended to benefit all producers 
and handlers.
    Adding authority to build and maintain an operating reserve equal 
to one year's average expenses is intended to allow the committee to 
recommend increases to their assessment rate in order to gradually 
build the reserve. During high production years, excess assessments 
could be added to the reserve until the fund's limit is reached. The 
larger operating reserve will help ensure that the committee has 
sufficient funds to meet its financial obligations and maintain 
critical marketing programs, even during short crop years. Such 
stability is expected to allow the committee to conduct programs that 
will benefit all entities, regardless of size.
    The changes to the order's nomination and polling regulations are 
intended to facilitate implementation of the proposed amendments.
    Where measurable, the costs outlined in this analysis are expected 
to be proportional to the size of business, so smaller businesses 
should not be unduly burdened. Benefits associated with improved 
efficiencies and greater representation on the committee should accrue 
to all entities, regardless of size.
    Alternatives to these proposals included making no changes at this 
time. However, the changes are necessary to update administration of 
the order to reflect current industry practices, provide consistent 
funding that will enable the committee to maintain valuable marketing 
programs, and provide greater opportunity for committee participation.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes 
in those requirements as a result of this proceeding are anticipated. 
Should any changes become necessary, they would be submitted to OMB for 
approval.
    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.
    The committee's meetings, at which these proposals were discussed, 
were widely publicized throughout the date industry. All interested 
persons were invited to attend the meetings and encouraged to 
participate in committee deliberations on all issues. Like all 
committee meetings, the meetings were public, and all entities, both 
large and small, were encouraged to express their views on these 
proposals.
    A proposed rule concerning this action was published in the Federal 
Register on June 14, 2011 (76 FR 34618). 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 July 
14, 2011, was provided to allow interested persons to respond to the 
proposal. No comments were received in response to the proposed order 
amendments. Further, no comments were received in response to the 
proposed conforming changes to the administrative regulations.
    A proposed rule and referendum order was then issued on November 3, 
2011, and published in the Federal Register on November 9, 2011 (76 FR 
69678). This document directed that a referendum among date producers 
be conducted during the period January 16, 2012, through February 3, 
2012, to determine whether they favor the proposed amendments to the 
order. To become effective, the amendments had to be approved by at 
least two-thirds of the producers voting, or two-thirds of the volume 
of dates represented by voters in the referendum. All of the proposed 
amendments were favored by more than 92 percent of those voting in the 
referendum and by more than 99 percent of the volume represented in the 
referendum.
    An amended marketing agreement was subsequently provided to all 
date handlers in the production area for their approval. The marketing 
agreement was approved by handlers representing more than 50 percent of 
the volume of dates handled by all handlers covered under the order.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Laurel May at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.

[[Page 37765]]

Order Amending the Order Regulating the Handling of Dates Produced or 
Packed in Riverside County, California Findings and Determinations

    (a) Findings and Determinations Upon the Basis of the Rulemaking 
Record.
    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the marketing agreement and order; and all said 
previous findings and determinations are hereby ratified and affirmed, 
except insofar as such findings and determinations may be in conflict 
with the findings and determinations set forth herein.
    1. The marketing agreement and order, as amended, and all of the 
terms and conditions thereof, will tend to effectuate the declared 
policy of the Act;
    2. The marketing agreement and order, as amended, regulate the 
handling of dates produced or packed in the production area (Riverside 
County, California) in the same manner as, and are applicable only to, 
persons in the respective classes of commercial and industrial activity 
specified in the marketing agreement and order;
    3. The marketing agreement and order, as amended, are limited in 
application to the smallest regional production area which is 
practicable, consistent with carrying out the declared policy of the 
Act, and the issuance of several orders applicable to subdivisions of 
the production area would not effectively carry out the declared policy 
of the Act;
    4. The marketing agreement and order, as amended, prescribe, 
insofar as practicable, such different terms applicable to different 
parts of the production area as are necessary to give due recognition 
to the differences in the production and marketing of dates produced or 
packed in the production area; and
    5. All handling of dates produced or packed in the production area 
as defined in the marketing agreement and order is in the current of 
interstate or foreign commerce or directly burdens, obstructs, or 
affects such commerce.
    (b) Determinations. It is hereby determined that:
    1. The ``Marketing Agreement Regulating the Handling of Dates 
Produced or Packed in Riverside County, California,'' has been signed 
by handlers (excluding cooperative associations of producers who are 
not engaged in processing, distributing, or shipping dates covered 
under the order) who during the period October 1, 2010, through 
September 30, 2011, handled not less than 50 percent of the volume of 
such dates covered under the order; and
    2. The issuance of this amendatory order, amending the aforesaid 
order, is favored or approved by at least two-thirds of the producers 
who participated in a referendum on the question of approval and who, 
during the period of October 1, 2010, through September 30, 2011, have 
been engaged within the production area in the production of such 
dates, such producers having also produced for market at least two-
thirds of the volume of such commodity represented in the referendum.

Order Relative to Handling

    It is therefore ordered, That on and after the effective date 
hereof, all handling of dates grown or packed in Riverside County, 
California, shall be in conformity to, and in compliance with, the 
terms and conditions of the said order as hereby proposed to be amended 
as follows:
    The provisions of Proposals Number 1 through 5 of the proposed 
marketing order amending the order contained in the proposed rule 
issued by the Administrator on November 5, 2011, and published in the 
Federal Register (76 FR 69678) on November 9, 2011, will be and are the 
terms and provisions of this order amending the order and are set forth 
in full herein.

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--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. Revise Sec.  987.23 to read as follows:

Sec.  987.23  Term of office.

    The term of office for members and alternate members shall be three 
years beginning August 1, except that such term may be shorter if the 
Committee composition is changed in the interim pursuant to Sec.  
987.21. Provided, That the terms of office of all members and 
alternates currently serving at the time of the amendment will end on 
July 31, 2014. Each member and alternate member shall, unless otherwise 
ordered by the Secretary, continue to serve until his or her successor 
has been selected and has qualified.

0
3. Revise paragraph (a) of Sec.  987.24 to read as follows:

Sec.  987.24  Nomination and selection.

    (a) Nomination for members and alternate members of the Committee 
shall be made not later than June 15 of every third year.
* * * * *

0
4. Amend Sec.  987.31 by revising paragraphs (d) and (e) to read as 
follows:

Sec.  987.31  Procedure.

* * * * *
    (d) At the discretion of the chairperson, Committee meetings may be 
assembled or conducted by means of teleconference, video conference, or 
other means of communication that may be developed. Assembled meetings 
may also allow for participation by means of teleconference or video 
conference or other communication methods, at the discretion of the 
chair. Members participating in meetings via any of these alternative 
means retain the same voting privileges that they would otherwise have.
    (e) The Committee may vote upon any proposition by mail, or by 
telephone when confirmed in writing within two weeks, upon due notice 
and full and identical explanation to all members, including alternates 
acting as members, but any such action shall not be considered valid 
unless unanimously approved.
* * * * *

0
5. Amend Sec.  987.52 by designating the existing text as paragraph (a) 
and by adding a new paragraph (b) to read as follows:

Sec.  987.52  Exemption.

* * * * *
    (b) The Committee may, with the approval of the Secretary, 
recommend that the handling of any date variety be exempted from 
regulations established pursuant to Sec. Sec.  987.39 through 987.51 
and Sec. Sec.  987.61 through 987.72.

0
6. Amend Sec.  987.72 by redesignating paragraphs (b) through (d) as 
paragraphs (c) through (e), respectively; by adding a new paragraph 
(b); and by revising redesignated paragraph (d) to read as follows:

Sec.  987.72  Assessments.

* * * * *
    (b) Delinquent payments. Any assessment not paid by a handler 
within a period of time prescribed by the Committee may be subject to 
an interest or late payment charge, or both. The period of time, rate 
of interest, and late payment charge shall be as

[[Page 37766]]

recommended by the Committee and approved by the Secretary.
* * * * *
    (d) Operating reserve. The Committee, with the approval of the 
Secretary, may establish and maintain during one or more crop years an 
operating monetary reserve in an amount not to exceed the average of 
one year's expenses incurred during the most recent five preceding crop 
years, except that an established reserve need not be reduced to 
conform to any recomputed average. Funds in reserve shall be available 
for use by the Committee for expenses authorized pursuant to Sec.  
987.71.
* * * * *

0
7. Revise Sec.  987.124(a) 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 every third 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 
two weeks before the due date and should contain, at least, the 
following information:
    (1) The names of incumbents who are willing and eligible 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.
* * * * *

    Dated: June 20, 2012.
Ruihong Guo,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2012-15428 Filed 6-22-12; 8:45 am]
BILLING CODE 3410-02-P
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