[Federal Register Volume 78, Number 5 (Tuesday, January 8, 2013)]
[Rules and Regulations]
[Pages 1130-1133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00185]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. AMS-FV-12-0035; FV12-987-1 IR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
California Date Administrative Committee (Committee) for the 2012-13 
and subsequent crop years from $1.00 to $0.90 per hundredweight of 
dates handled. The Committee locally administers the marketing order 
which 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 January 9, 2013. Comments received by March 11, 2013, 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Agreement Division, 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. 
Comments should reference the docket number and the date and page 
number of this issue of the Federal Register and will be available for 
public inspection in the Office of the Docket Clerk during regular 
business hours, or can be viewed at: http://www.regulations.gov. All 
comments submitted in response to this rule will be included in the 
record and will be made available to the public. 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.

FOR FURTHER INFORMATION CONTACT: Jeff Smutny, Marketing Specialist, or 
Kurt J. Kimmel, Regional Director, California Marketing Field Office, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: 
Jeffrey.Smutny@ams.usda.gov or Kurt.Kimmel@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 dates produced or packed in Riverside 
County, California, hereinafter referred to as the ``order.'' The order 
is effective under the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This 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, 2012, and 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 decreases the assessment rate established for the 
Committee for the 2012-13 and subsequent crop years from $1.00 to $0.90 
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 
Riverside County, 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

[[Page 1131]]

an opportunity to participate and provide input.
    For the 2010-11 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 12, 2012, and unanimously recommended 
2012-13 expenditures of $260,000 and an assessment rate of $0.90 per 
hundredweight of Riverside County, California dates. In comparison, 
last year's budgeted expenditures were $265,000. The assessment rate of 
$0.90 is $0.10 lower than the rate currently in effect. The Committee 
recommended a lower assessment rate because the 2012-13 crop is 
expected to be larger than the previous year. Income generated through 
the lower assessment rate combined with cull surplus contributions and 
funds contributed by the California Date Commission for shared 
marketing activities, should be sufficient to cover anticipated 2012-13 
expenses.
    Proceeds from sales of cull dates are deposited into a surplus 
account for subsequent use by the Committee in covering the surplus 
pool share of the Committee's expenses. Handlers may also dispose of 
cull dates of their own production within their own livestock-feeding 
operation; otherwise, such cull dates must be shipped or delivered to 
the Committee for sale to non-human food product outlets. Pursuant to 
Sec.  987.72(b), the Committee is authorized to temporarily use funds 
derived from assessments to defray expenses incurred in disposing of 
surplus dates. All such expenses are required to be deducted from 
proceeds obtained by the Committee from the disposal of surplus dates. 
For the 2012-13 crop year, the Committee estimated that $3,000 from the 
surplus account would be needed to temporarily defray expenses incurred 
in disposing of surplus dates.
    The major expenditures recommended by the Committee for the 2012-13 
crop year include $110,000 for generic marketing promotions, $83,520 
for general and administrative expenses, $43,800 for nutrition 
marketing programs, $12,680 for a contingency fund, and $5,000 for 
licensing renewal. Budgeted expenses for these items in 2011-12 were 
$96,300 for generic marketing promotions, $90,000 for general and 
administrative expenses, $73,600 for nutrition marketing programs, and 
$5,100 for marketing contingency.
    The assessment rate recommended by the Committee was derived based 
upon the anticipated size of the 2012-13 crop, the Committee's 
estimates of the incoming reserve, other income, and anticipated 
expenses. Date shipments for the year are estimated at 26,500,000 
pounds which should provide $238,500 in assessment income. Income 
derived from handler assessments, along with a $3,000 reimbursement for 
the cost of disposing of surplus culls, and a $40,000 contribution from 
the California Date Commission for shared marketing expenses, should be 
adequate to cover budgeted expenses.
    Section 987.72(d) states that the Committee may maintain a monetary 
reserve 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 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 $15,000 reserve into the 2012-13 crop year. They expect to add 
$21,500 to the reserve during the year, for a desired carryout of 
approximately $36,500, which is well below the limit specified in the 
order.
    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 is effective 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 2012-13 budget and those 
for subsequent crop years will be reviewed and, as appropriate, 
approved by USDA.

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 rule 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 the 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 11 handlers subject to regulation under the marketing order. 
Small agricultural producers are defined by the Small Business 
Administration (13 CFR 121.201) as those having annual receipts less 
than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $7,000,000.
    According to the National Agricultural Statistics Service (NASS), 
data for the most recently completed crop year (2011) shows that about 
3.68 tons, or 7,360 pounds, of dates were produced per acre. The 2011 
grower price published by the NASS was $1,320 per ton, or $.66 per 
pound. Thus, the value of date production per acre in 2011 averaged 
about $4,858 (7,360 pounds times $.66 per pound). At that average 
price, a producer would have to farm over 154 acres to receive an 
annual income from dates of $750,000 ($750,000 divided by $4,858 per 
acre equals 154 acres). According to Committee staff, the majority of 
California date producers farm less than 154 acres. Thus, it can be 
concluded that the majority of date producers could be considered small 
entities. According to data from the Committee staff, the majority of 
handlers of California dates may also be considered small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2012-13 and subsequent 
crop years from $1.00 to $0.90 per hundredweight of dates handled. The 
Committee unanimously recommended 2012-13 expenditures of $260,000 and 
an assessment rate of $0.90 per hundredweight of dates, which is $0.10 
lower than the 2011-12 rate, currently in effect. The quantity of 
assessable dates for the 2012-13 crop year is estimated at 26,500,000 
pounds. Thus, the $0.90 rate should provide $238,500 in assessment 
income. Income derived from handler's assessments, along with the 
$3,000 contribution from

[[Page 1132]]

the surplus program, and the $40,000 contribution for shared marketing 
expenses should be adequate to meet the 2012-13 crop year expenses.
    The major expenditures recommended by the Committee for the 2012-13 
crop year include $110,000 for generic marketing promotions, $83,520 
for general and administrative expenses, $43,800 for nutrition 
marketing programs, $12,680 for a contingency fund, and $5,000 for 
licensing renewal. Budgeted expenses for these items in 2011-12 were 
$96,300 for generic marketing promotions, $90,000 for general and 
administrative expenses, $73,600 for nutrition marketing programs, and 
$5,100 for marketing contingency.
    The Committee recommended a lower assessment rate because the 2012-
13 crop is expected to be larger than the previous year. As mentioned 
earlier, date shipments for the year are estimated at 26,500,000 pounds 
which should provide $238,500 in assessment income. Income derived from 
handler assessments, cull surplus contributions, and funds contributed 
by the California Date Commission for shared marketing activities, 
should be sufficient to cover anticipated 2012-13 expenses.
    Section 987.72(d) states that the Committee may maintain a monetary 
reserve 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 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 $15,000 reserve into the 2012-13 crop year. They expect to add 
$21,500 to the reserve during the year, for a desired carryout of 
approximately $36,500, which is well below the limit specified in the 
order.
    The Committee reviewed and unanimously recommended 2012-13 crop 
year expenditures of $260,000. Prior to arriving at this budget, the 
Committee considered information from various sources, such as the 
Committee's Marketing Subcommittee, and Budget Committee. Alternative 
expenditure levels were discussed by these groups, based upon relative 
value of various marketing projects to the date industry. The 
assessment rate of $0.90 per hundredweight of dates was then derived, 
based upon the anticipated 2012-13 crop size, and the Committee's 
estimates of the incoming reserve, other income, and anticipated 
expenses. Assessing at the $0.90 per hundredweight of dates will 
generate approximately $21,500 less than the anticipated expenses, 
which the Committee determined to be acceptable, as other sources of 
income should provide adequate funds to cover expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2012-13 season could range between $1,180 and $1,320 per ton of 
dates. Therefore, the estimated assessment revenue for the 2012-13 crop 
year as a percentage of total grower revenue could range between 1.5 
and 1.4 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. 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 12, 
2012, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue. Finally, interested 
persons are invited to submit comments on this interim final rule, 
including the regulatory and informational impacts of this action on 
small businesses.
    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. No changes in those requirements as a 
result of this action are necessary. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large Riverside County, 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    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 Laurel May 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 is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register because: (1) The 2012-13 crop year begins on October 1, 2012, 
and the marketing order requires that the rate of assessment for each 
crop year apply to all assessable dates handled during such crop year; 
(2) the action decreases the assessment rate for assessable dates 
beginning with the 2012-13 crop year; (3) handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting and is similar to other assessment rate actions issued in past 
years; and (4) this interim final rule provides a 60-day comment 
period, and all comments timely received will be considered prior to 
finalization of this 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--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. Section 987.339 is revised to read as follows:


Sec.  987.339   Assessment rate.

    On and after October 1, 2012, an assessment rate of $0.90 per

[[Page 1133]]

hundredweight is established for Riverside County, California dates.

    Dated: January 2, 2013.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2013-00185 Filed 1-7-13; 8:45 am]
BILLING CODE 3410-02-P