[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Proposed Rules]
[Pages 34618-34625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14429]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 987
[Doc. No. AMS-FV-10-0025; FV10-987-1 PR]
Domestic Dates Produced or Packed in Riverside County, CA;
Proposed Amendments to Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: Five amendments to Marketing Agreement and Order No.987 which
regulates the handling of domestic dates produced or packed in
Riverside County, California, were proposed by the California Date
Administrative Committee (CDAC or committee), which is responsible for
local administration of the order. These proposed amendments are
intended to improve administration of and compliance with the order and
reflect current industry practices.
In addition to the committee's proposals, the Agricultural
Marketing Service (AMS) proposes to further amend the order by
providing for a continuance referendum every six years, and by
establishing term limits of up to six consecutive years for committee
members. These proposals would allow producers to indicate continued
support for the order and provide all interested industry members the
opportunity to serve on the committee.
DATES: Comments must be received by July 14, 2011.
ADDRESSES: Written comments should be submitted to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number
and the date and page number of this issue of the Federal Register. All
comments submitted in response to this proposed rule will be included
in the record and will be made available for public inspection in the
Office of the Docket Clerk during regular business hours, or can be
viewed at: http://www.regulations.gov. Please be advised that the
identity of the individuals or entities submitting the comments will be
made public on the Internet at the address provided above.
To the extent practicable, all documents filed with the Docket
Clerk should also be submitted electronically to Laurel May at the e-
mail address noted for her in the FOR FURTHER INFORMATION CONTACT
section.
FOR FURTHER INFORMATION CONTACT: Laurel May, Senior Marketing
Specialist, or Kathleen Finn, Rulemaking Team Program Manager,
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] or [email protected].
Small businesses may request information on complying with this
regulation by contacting Antoinette
[[Page 34619]]
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 proposal 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 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. A producer referendum will be held in the future to determine
support for the proposed order amendments, if the amendments are deemed
appropriate.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This proposal 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. AMS will analyze any comments
received on the amendments proposed in this rule, and if appropriate,
AMS will conduct a producer referendum. If appropriate, a final rule
will then be issued to effectuate the amendments favored by producers
participating in the referendum.
The proposed amendments were recommended by the committee 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.
The committee's proposed amendments would: (1) Authorize the
committee to recommend regulatory exemptions for certain date varieties
if market conditions warrant such exemption. Currently the order only
provides for exemptions for handlers who sell dates directly to
consumers in limited market outlets; (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. Currently all committee meetings must be
assembled; (4) Authorize the committee to collect interest charges and
late fees on delinquent assessment payments. Currently, the order does
not provide authority for the collection of interest and late fees; and
(5) Authorize the committee to build and maintain an operating reserve
not to exceed the average of one year's average expenses. Currently,
the committee is authorized to maintain an operating reserve not to
exceed 50 percent of an average year's expenses.
AMS further proposes to amend the order by: (1) Requiring that a
producer referendum be conducted every six years to determine continued
support for the order; and (2) establishing term limits of no longer
than two consecutive terms of office or six consecutive years for
committee members and alternates. Finally, AMS proposes to make
conforming changes to the order as may be necessary to conform to any
amendment to the order that may result from this rulemaking action.
Proposal Number 1--Regulatory Exemptions
Section 987.5 of the order defines the date varieties that are
regulated under the order. Regulated varieties are subject to the
minimum grade, size, inspection, certification, volume control,
interhandler transfer, container, reporting, and assessment
requirements authorized under Sec. Sec. 987.39 through 987.51,
Sec. Sec. 987.61 through 987.68, and Sec. 987.72 of the order.
Currently, Sec. 987.5 lists four date varieties for regulation
under the order, including the Deglet Noor, Zahidi, Halawy, and
Khadrawy varieties. At the time the order was established, these four
varieties were produced or handled in Riverside County in sufficient
quantities to warrant regulation. At times, production of some
varieties may decline to the point that the committee believes that the
cost to handlers of inspecting and reporting those varieties outweighs
the benefits of doing so. For instance, the committee reports that the
cost of regulating two date varieties currently outweighs the benefit
of doing so as very little assessment revenue is generated by the
handling of those two varieties. In such cases, the committee believes
it should have the authority to recommend regulatory exemption of those
varieties until such time as it is again appropriate to regulate them.
To address this issue, the committee proposed amending the order by
temporarily suspending the varieties currently produced in minimal
quantities from inclusion in Sec. 987.5--DATES. However, AMS believes
that the committee would have greater flexibility if it were authorized
to recommend regulatory exemptions for varieties produced, with the
approval of the Secretary, through the informal rulemaking process. In
this way, any future changes in production levels or other market
considerations for any variety could be addressed through informal
rulemaking.
Section 987.52 authorizes the committee to exempt handlers of dates
for sale in certain market outlets from regulation if those sales are
unlikely to interfere with the objectives of the order. However, the
section does not authorize the exemption of dates sold into regular
markets by variety. Such authority would allow the committee to
recommend, subject to approval of the Secretary, that certain varieties
be exempted from the order's regulations through informal rulemaking.
Such authority should be broad enough to include exemptions for a
variety of
[[Page 34620]]
reasons, including periods of minimal production. This flexibility
would allow the committee to respond to changes in the production and
marketing environment in a timely manner. As production and market
conditions change, the committee could recommend lifting the regulatory
exemptions, as appropriate.
For example, two varieties regulated under the order are currently
being produced in very small quantities. New date garden plantings of
those varieties are still immature, and have not reached full
production. Under the proposed amendment, the committee could
recommend, through the informal rulemaking process, that those two
varieties be exempted from the order's regulations. When the trees of
each variety mature and are producing in sufficient quantities to
warrant regulation, the committee could recommend that the variety-
specific exemptions be removed.
For the reasons stated above, it is proposed that Sec. 987.52,
Exemption, be amended by designating the current text of that section
as paragraph (a) and adding a new paragraph (b) providing authority for
the committee to recommend that any variety may be exempt from
regulations established pursuant to Sec. Sec. 987.39 through 987.50,
Sec. Sec. 987.61 through 987.68, and Sec. 987.72.
Proposal Number 2--Terms of Office
Section 987.23 of the order specifies that the terms of office for
committee members and alternates are two years, beginning on August 1.
Section 987.24 of the order specifies that nominations for committee
positions are held by June 15, every other year. The committee proposed
amending the order to extend member and alternate terms of office from
two to three years.
The terms of office for another California date industry program,
the California Date Commission (commission), are three years. Some
committee members may also serve on the commission. Nominations for the
two programs occasionally, but not always, take place within a few
weeks of each other. Because nominations coincide in some years and
don't coincide in others, the committee believes that voters can become
confused about whether or not they have submitted ballots, and thus are
less likely to participate in the committee's nomination process. The
committee believes that extending terms of office to three years and
synchronizing nominations with those of the commission would improve
the nomination process and encourage greater participation in committee
nominations.
Additionally, the number of date producers and handlers in the
production area has declined over time, making it increasingly
difficult to find new candidates to serve as members and alternates on
the nine-member committee every other year. The committee believes that
extending the terms of office for one year would give the industry more
time to identify and recruit potential new committee members between
nomination periods.
The current committee was nominated in 2010 and is expected to
serve until 2012. If this amendment is adopted, terms of office of the
current committee members and alternates would be extended until 2014,
or whenever a new committee is selected by the Secretary. Thereafter,
the three-year terms of office would commence with the new committee
selected in 2014. This would coincide with the commission's nomination
cycle.
For the reasons stated above, it is proposed that Sec. 987.23 of
the order be amended to change committee member and alternate terms of
office from two to three years. The section should also specify that
the terms of office of members and alternates serving at the time the
amendment is effectuated would end on July 31, 2014. Further, Section
987.24 should be amended to specify that nominations for committee
positions are held by June 15 of every third year rather than every
other year.
Proposal Number 3--Committee Meetings
Section 987.31 of the order specifies procedures for conducting
committee business. Quorum requirements are defined, and the minimum
voting requirements for various matters are specified. The section
specifies that votes cast at assembled meetings shall be cast in
person. The section also authorizes the committee to vote on any
proposition by mail, telephone, or telegram after all members and
alternates acting as members have received identical explanations about
the proposition. Telephone votes must be confirmed in writing within
two weeks. Actions approved by mail, telephone, or telegram voting must
be unanimous to be valid.
Currently, the order does not authorize the committee to conduct
business meetings by telephone or other means of modern communication
technology, such as video conference. The committee proposed amending
the order to authorize the use of such technology in certain
situations.
The use of telephone conference and video conference capability has
become standard in the date industry, as well as in other marketing
order programs. Use of such technology allows producers and handlers to
address urgent committee business with minimal disruption to their
individual business responsibilities. Telephone and video conferences
also bolster participation by other interested parties who would
otherwise be unable to participate in industry meetings due to the
constraints of time and distance.
The committee believes that the use of telephone and video
conference technology would be appropriate in certain situations, such
as when the matters to be discussed are minor, or when emergencies
demand immediate decisions by the committee. The committee also
believes that some business matters should be addressed at assembled
meetings, and that alternate meeting formats would not be appropriate
for all situations. The committee proposed that the chairperson should
have the discretion to determine the appropriate format for any
committee meeting.
There could be some situations in which the chairperson determines
that members may participate in assembled meetings by telephone or
other means of communication. Although the member's alternate may be
present at the same assembled meeting, the committee believes that the
member should retain the right to vote on any issue that comes before
the committee in that meeting, even if he or she is participating via
telephone or videoconference. Therefore, the requirement that votes at
assembled meetings shall be cast in person should be removed.
Nevertheless, the committee believes that votes cast by telephone
should continue to be confirmed in writing within two weeks of the
meeting. Finally, because telegrams are no longer in standard use,
authority to vote by telegram should be removed.
For the reasons stated above, it is proposed that Sec. 987.31,
Procedure, be amended by: Revising paragraph (d) to provide for
participation in assembled committee meetings as well as telephone,
video conference, or other types of meetings; providing the committee
chairperson with discretion to determine the appropriate meeting format
and whether members may participate in assembled meetings by telephone
or other means; clarifying that members attending assembled meetings by
alternate means of communication retain the same voting privileges they
would otherwise have; and removing the requirement that votes at
assembled
[[Page 34621]]
meetings shall be cast in person. Paragraph (e) of Sec. 987.31 would
be amended by removing the words ``or telegram.''
Proposal Number 4--Interest and Late Payment Charges
Section 987.72 requires date handlers to pay the committee
assessments upon merchantable and utility dates they have certified as
such. Funds to administer the order are derived from such assessments.
The committee, with USDA approval, formulates annual budgets of
expenses and recommends appropriate assessment rates. The committee's
budgeted expenditures include those for general administration of the
program, as well as the cost of promotional programs and marketing and
media consultants.
Currently, the order does not authorize the committee to charge
interest or late payment charges for delinquent assessment payments.
The committee believes that adding such authority would provide greater
incentive for handlers to make assessment payments on time. This in
turn would help ensure that the committee is able to meet its financial
obligations and continue to fund its programs on a continuing basis.
Charging interest and late payment charges on unpaid financial
obligations is commonplace in the business world, and implementation of
such charges would bring the committee's financial operations in line
with standard business practices. Such charges would remove any
financial advantage for those who do not pay on time while they benefit
from committee programs, creating a more level playing field for the
industry.
The committee recommended amending the order to authorize the
collection of interest and late payment charges for delinquent
payments. Such authority would allow the committee to establish,
through informal rulemaking, parameters for implementation, including
timeframes and appropriate interest and late payment charges that would
be imposed if necessary. This authority is intended to strengthen
compliance with the order's assessment requirements.
For the reasons stated above, it is proposed that paragraphs (b)
through (d) of Sec. 987.72 be redesignated paragraphs (c) through (e),
respectively, and that a new paragraph (b) be added to the order to
specify that any assessment not paid by a handler within a period of
time specified by the committee may be subject to an interest or late
payment charge, or both. The new paragraph would further specify that
the period of time, interest rate, and late payment charge shall be as
recommended by the committee and approved by the Secretary.
Proposal Number 5--Operating Reserve
Paragraph (c) of Sec. 987.72 currently authorizes the committee to
establish and maintain a monetary operating reserve in an amount not to
exceed 50 percent of an average year's expenses. The average year's
expenses are calculated using the actual expenses of the five most
recent crop years. Should the existing reserve ever exceed the
recalculated average, there is no requirement to lower the reserve to
meet that average. Funds in the reserve are available for use by the
committee to meet its financial obligations in connection with
administration of the order and its programs. Annual budgets and
assessment rates are revised as appropriate in an effort to maintain
the authorized operating reserve balance.
The committee occasionally uses reserve funds when the assessment
revenues they have collected are not sufficient to meet their budgeted
expenses. This may happen when the date crop is smaller than expected,
which reduces the total amount of assessments paid by handlers. In
other instances, the committee may desire later in the year to take
advantage of a promotional opportunity for which it had not budgeted at
the beginning of the year. With the approval of the Secretary, the
committee could revise their budget to include the promotional program
and use reserve funds to cover its costs without increasing the current
assessment rate.
In crop years with unexpectedly high production, the approved
assessment rate may generate excess funds. Under the order's current
provisions, the committee is only authorized to retain an amount not to
exceed 50 percent of an average year's expenses. Any excess funds must
be returned to handlers or applied as a credit against their accounts
for the upcoming year.
The committee proposed raising the operating reserve limit from 50
percent of an average year's expenses to an amount not to exceed one
year's average expenses. This would allow the committee to retain more
surplus assessment revenues they may collect. A larger operating
reserve would strengthen the committee's continuity and confidence in
managing committee business. A larger reserve would provide sufficient
funds to meet the committee's budgeted financial obligations, including
the maintenance of strategic marketing programs, in short crop years as
well as provide the flexibility to respond to unexpected opportunities.
The committee could recommend annual assessment rates. Over a number of
years, the reserve could gradually increase until the balance
approximates one year's average expenses, as calculated using the five
most recent years' actual expenses.
For the reasons stated above, it is proposed that paragraph (c) of
Sec. 987.72, which would be redesignated paragraph (d) as described
under amendment Proposal Number 4 above, be further amended to
authorize the committee to build and maintain an operating monetary
reserve not to exceed one year's average expenses, based upon the
actual expenses of the five most recent crop years.
Proposal Number 6--Continuance Referenda
AMS proposes to amend the order by adding a provision for
continuance referenda every six years. Provision for periodic
continuance referenda would offer producers the opportunity to indicate
ongoing support for the order and its programs. Experience has shown
that marketing order programs need significant industry support to
operate effectively. Continuance of the date order would require the
favorable vote of at least two-thirds of those voting, or of those
representing at least two-thirds of the production volume represented
in the referendum. This is the same support that is typically required
for issuance or amendment of an order.
The order was last amended on February 1, 1978 (43 FR 4253). Since
that time, USDA has recommended that producers of commodities regulated
under Federal marketing orders be offered the opportunity to
participate in periodic continuance referenda. The California date
marketing order does not currently provide for continuance referenda.
Therefore, it is recommended that Sec. 987.82--Effective time,
suspension, or termination, be amended by redesignating paragraph
(b)(3) as paragraph (b)(4) and adding a new paragraph (b)(3) to provide
that a continuance referendum shall be conducted six years after the
amendment becomes effective and every six years thereafter. The new
paragraph (b)(3) of Sec. 987.82 should further specify that
continuation of the order would require the approval of two-thirds of
the producers participating in the referendum, or of voters
representing two-thirds of the date production represented in the
referendum.
In paragraph (b)(2) of Sec. 987.82, the word ``growers,'' which
appears in the heading and in the text of that paragraph, should be
replaced with the
[[Page 34622]]
word ``producers'' to conform with the definition provided in Sec.
987.7 of the order; and the word ``he,'' in reference to the Secretary,
should be replaced by the words ``he or she'' to modernize the section.
Proposal Number 7--Term Limits
AMS proposes to amend the order by establishing term limits on the
number of consecutive terms a person may serve on the committee.
Currently, the term of office for each member and alternate member
of the committee is two years. Committee members and alternates
continue to serve until their successors have been selected by the
Secretary and have qualified. The order does not specify any term
limits for members or alternates. Members and alternates may be
selected to serve consecutive terms in those positions, as long as they
continue to be eligible and willing to do so.
As explained under Proposal number 2 above, the committee has
proposed to amend the order to provide for three-year terms of office.
AMS's is proposing to further amend the order to specify that members
may serve up to two consecutive three-year terms, not to exceed six
consecutive years. This proposal for a limitation on tenure would not
apply to alternates. Once a member has served on the committee for two
consecutive terms, or six years, the member would be required to step
down for at least one year before being eligible to serve as a member
again. The member could serve as an alternate during that time.
AMS's experience with similar marketing programs is that
establishing tenure limits is a means to increase industry
participation on the committee and in its programs. By inviting
potential new members to serve, small and large entities who have not
been actively involved previously may be encouraged to take part in the
order's activities and gain committee experience.
For the reasons stated above, it is proposed that Sec. 987.23 be
further amended by specifying that members may serve up to two
consecutive three-year terms, not to exceed six consecutive years as
members. There would be no such limitation for alternates. After
serving for six consecutive years, members would be required to step
down for at least one year before being eligible to serve again. If the
order is amended to allow three-year terms of office, members who were
appointed in 2010 and continued to serve until 2014 would be allowed to
serve one additional three-year term of office before being required to
step down. Any other service prior to the order amendment would not
count toward the term limit.
Conforming Changes to Administrative Rules and Regulations
Adoption of two of the proposed amendments to the order would
require that conforming changes be made to Sec. 987.124 of the order's
administrative rules and regulations. These changes would not be voted
upon by producers in the referendum, but would be made as conforming
changes if Proposal Number 2, to make terms of office three years long,
and/or Proposal Number 7, to add term limits, are approved by voters
participating in the referendum.
Currently, paragraph (a) of Sec. 987.124 specifies that
nominations materials are provided to producers and producer-handlers
no later than June 15 of each even numbered year. If the order is
amended to provide for three year terms of office as explained in
Proposal number 2 above, nominations would be conducted every three
years, rather than every two years. Therefore, Sec. 987.124(a) should
be changed to specify that ballot materials are provided to producers
and producer handlers no later than June 15 of every third year.
Paragraph (a)(1) of Sec. 987.124 currently specifies that the
ballots should contain the list of incumbents who are willing to
continue to serve on the committee. As explained above, some incumbents
may no longer be eligible to serve in their positions if the proposal
to add term limits is adopted. Therefore, Sec. 987.124(a)(1) should be
revised to clarify that the names of incumbents who are both willing
and eligible to continue serving should be listed on the ballots.
Initial 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 initial 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 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 proposed by the committee would 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.
Amendments proposed by AMS would provide for continuance referenda
every six years, and would specify term limits of not more than six
consecutive years for committee positions. Conforming changes to the
order's administrative rules and regulations would be made as necessary
to facilitate implementation of any amendments approved by voters in
the referendum. Specifically, the committee's nomination and polling
procedures would be modified to require that balloting materials be
provided to producers by June 15 of every third year.
The committee's proposed amendments were unanimously recommended at
public meetings held on October 30, 2008; October 29, 2009; and
February 25, 2010. The committee believes that each of their proposed
amendments would benefit producers and handlers of all sizes.
[[Page 34623]]
If granted authority to temporarily exempt certain date varieties
from regulation, the committee could determine whether the costs of
collecting assessments and reports on individual varieties are
warranted. Handler burden related to those functions would 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 would
also be reduced.
Producer and handler participation in committee nominations is
expected to improve if member terms of office are extended from two to
three years. Extending the terms of office would 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. Such authority would minimize the time that committee
members would be required to be away from their individual businesses.
Authorizing the chairperson to determine the format for each meeting
would 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 would 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.
If authority to build and maintain an operating reserve equal to
one year's average expenses is added to the order, the committee could
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 would 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.
AMS's proposal to add provision for continuance referenda is
expected to afford producers the opportunity to indicate ongoing
support for the order and its programs. The proposal to add term limits
is expected to encourage participation on the committee by all
interested industry members. Support for the program, and active
participation on the committee by a diverse group of industry members,
are expected to benefit all producers and handlers by ensuring that the
program continues to meet the industry's evolving needs.
Proposed changes to the order's nomination and polling regulations
are administrative in nature and are intended to facilitate
implementation of the proposed amendments, if adopted.
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 include making no changes at this
time. However, the proposed 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.
Finally, interested persons are invited to submit comments on the
proposed amendments to the order as well as on the proposed revisions
to the administrative rules and regulations that would be made if the
amendments are adopted, including comments on the regulatory and
informational impacts of this action on small businesses.
Following analysis of any comments received on the amendments
proposed in this rule, AMS would conduct a producer referendum, if
appropriate. Information about the referendum, including dates and
voter eligibility requirements, would be published in a future issue of
the Federal Register. If appropriate, a final rule would then be issued
to effectuate the amendments favored by producers participating in the
referendum and to finalize any conforming changes necessary to reflect
amendments to the order.
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.
General Findings
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.
[[Page 34624]]
1. The marketing agreement and order, as amended, and as hereby
proposed to be further amended, and all of the terms and conditions
thereof, would tend to effectuate the declared policy of the Act;
2. The marketing agreement and order, as amended, and as hereby
proposed to be further 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, and as hereby
proposed to be further amended, is limited in its 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, and as hereby
proposed to be further amended, prescribes, 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.
A 30-day comment period is provided to allow interested persons to
respond to these proposals. Thirty days is deemed appropriate because
the proposed changes have been widely publicized, and implementation of
the changes, if adopted, would be desirable to benefit the industry as
soon as possible. All written comments timely received will be
considered, and a grower referendum will be conducted before any of the
proposed amendments are implemented.
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
proposed to be amended as follows:
PART 987--DOMESTIC 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. 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. Commencing with the term of office that begins on August
1, 2014, members may serve up to two consecutive three-year terms, not
to exceed six consecutive years as members: Provided, That members who
were serving at the time of the amendment and who continued to serve
until 2014 may serve only one additional three-year term of office.
Members who have served two consecutive terms or six years may not
serve as members for at least one year before becoming eligible to
serve again. Except as provided above, the limitation on consecutive
terms of office and years of service does not apply to service on the
committee prior to enactment of the amendment, and does not apply to
alternates. 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.
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.
* * * * *
4. Amend Sec. 987.31 by revising paragraphs (d) and (e) to read as
follows:
Sec. 987.31 [Amended]
* * * * *
(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.
* * * * *
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 [Amended]
(a) * * *
(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.
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 [Amended]
* * * * *
(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 recommended by the
Committee and approved by the Secretary.
(c) * * *
(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.
* * * * *
7. Amend Sec. 987.82 by revising paragraph (b)(2), redesignating
paragraph (b)(3) as paragraph (b)(4), and adding a new paragraph (b)(3)
to read as follows:
Sec. 987.82 [Amended]
* * * * *
(b) * * *
(2) When favored by producers. The Secretary shall terminate the
provisions
[[Page 34625]]
of this part at the end of any crop year whenever he or she finds that
such termination is favored by a majority of the producers of dates
who, during that crop year, have been engaged in the production for
market of dates in the area of production: Provided, That such majority
have, during such period, produced for market more than 50 percent of
the volume of such dates produced for market within said area; but such
termination shall be effective only if announced on or before August 1
of the then current crop year.
(3) Continuance referendum. The Secretary shall conduct a
referendum six years after the effective date of this section and every
sixth year thereafter to ascertain whether continuance of this part is
favored by producers. The Secretary may terminate the provisions of
this part at the end of any crop year in which he or she has found that
continuance of this part is not favored by producers who, during a
representative period determined by the Secretary, have been engaged in
the production for market of dates in the production area.
* * * * *
8. 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 6, 2011.
Ellen King,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-14429 Filed 6-13-11; 8:45 am]
BILLING CODE 3410-02-P