[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Proposed Rules]
[Pages 56019-56021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22981]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 /
Proposed Rules
[[Page 56019]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 987
[Docket No. AMS-FV-10-0059; FV10-987-2 PR]
Domestic Dates Produced or Packed in Riverside County, CA;
Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule would increase the assessment rate established for
the California Date Administrative Committee (Committee) for the 2010-
11 and subsequent crop years from $0.75 to $1.00 per hundredweight of
dates handled. The Committee locally administers the marketing order,
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
would remain in effect indefinitely unless modified, suspended, or
terminated.
DATES: Comments must be received by October 15, 2010.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent 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. 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 Manager, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail:
[email protected] or [email protected].
Small businesses may request information on complying with this
regulation by contacting Antoinette Carter, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
[email protected].
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 987, as amended (7 CFR part 987), regulating the handling of dates
grown or packed in Riverside County, California, hereinafter referred
to as the ``order.'' The order is effective under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Riverside
County, California date handlers are subject to assessments. Funds to
administer the order are derived from such assessments. It is intended
that the assessment rate as proposed herein would be applicable to all
assessable dates beginning October 1, 2010, and would 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 would increase the assessment rate established for the
Committee for the 2010-11 and subsequent crop years from $0.75 to $1.00
per hundredweight of dates.
The California date marketing order provides authority for the
Committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Committee are producers and handlers of
California dates. They are familiar with the Committee's needs and with
the costs for goods and services in their local area, and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2009-10 and subsequent crop years, the Committee
recommended, and USDA approved, an assessment rate that would continue
in effect from crop year to crop year unless modified, suspended, or
terminated by USDA upon recommendation and information submitted by the
Committee or other information available to USDA.
The Committee met on June 24, 2010, and unanimously recommended
2010-11 expenditures of $245,000 and an assessment rate of $1.00 per
hundredweight of California dates. In comparison, last year's budgeted
expenditures were $200,000. The modified assessment rate of $1.00 is
$0.25 higher than the rate currently in effect. The Committee
recommended a higher assessment rate to offset the 2010-11 budgeted
increases in salaries, operating expenses, and promotion programs, and
to build their operating reserve. The higher assessment rate should be
sufficient to cover the 2010-
[[Page 56020]]
11 budgeted expenses and meet their financial goals.
Section 987.72(c) authorizes the Committee to establish and
maintain an operating reserve not to exceed 50 percent of an average
year's expenses. Funds from the reserve are available for the
Committee's use during the crop year to cover budgeted expenses as
necessary or for other purposes deemed appropriate by USDA. The
Committee expects to carry a $40,000 reserve into the 2010-11 crop
year. They expect to add $16,500 to the reserve during the year, for a
desired carryout of approximately $56,000, which is well below the
limit specified in the order.
Income from the sale of cull dates is deposited in a surplus
account for subsequent use by the Committee to cover the surplus pool
share of the Committee's expenses. Handlers may also dispose of cull
dates of their own production within their own livestock-feeding
operation; otherwise, such cull dates must be shipped or delivered to
the Committee for sale to non-human food product outlets. Pursuant to
Sec. 987.72(b), the Committee is authorized to temporarily use funds
derived from assessments to defray expenses incurred in disposing of
surplus dates. All such expenses are required to be deducted from
proceeds obtained by the Committee from the disposal of surplus dates.
For the 2010-11 crop year, the Committee estimated that $1,500 from the
surplus account would be needed to temporarily defray expenses incurred
in disposing of surplus dates.
The major expenditures recommended by the Committee for the 2010-11
crop year include $85,000 for general and administrative programs,
$127,875 for promotional programs, $17,900 for nutritional research,
and $14,225 for marketing and media consulting. The budgeted amount for
promotional programs includes a $29,000 contingency fund that would
allow the Committee to take advantage of unexpected marketing
opportunities that may present themselves during the year.
By comparison, expenditures recommended by the Committee for the
2009-10 crop year included $60,000 for general and administrative
programs, $97,000 for promotional programs, $15,000 for nutritional
research, and $28,000 for marketing and media consulting.
The assessment rate of $1.00 per hundredweight of assessable dates
was derived by applying the following formula where:
A = 2009-10 estimated reserve on 09/30/10 ($40,000);
B = 2010-11 estimated reserve on 09/30/11 ($56,500);
C = 2010-11 expenses ($245,000);
D = Cull Surplus Fund ($1,500);
F = 2010-11 expected shipments (26,000,000 pounds).
[(C - A + B - D)/F] x 100.
The assessment rate proposed in this rule would 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 proposed assessment rate would be in effect for an
indefinite period, the Committee would 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 would evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Committee's 2010-11 budget and those
for subsequent crop years would 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 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 9 handlers subject to regulation under the marketing order.
The Small Business Administration (13 CFR 121.201) defines small
agricultural producers as those having annual receipts of less than
$750,000, and small agricultural service firms are defined as those
having annual receipts of less than $7,000,000.
According to the National Agricultural Statistics Service (NASS),
data for the most-recently completed crop year, 2009-10, indicates that
about 3.8 tons, or 7,600 pounds, of dates were produced per acre. The
2009-10 producer price published by NASS was $1,450 per ton, or $0.725
per pound. Thus, the value of date production in 2009-10 averaged about
$5,510 per acre (7,600 pounds per acre times $0.725 per pound). At that
average price, a producer would have to farm more than 136 acres to
receive an annual income from dates of $750,000 ($750,000 divided by
$5,510 per acre equals 136.1 acres). According to the Committee's
staff, the majority of California date producers farm fewer than 136
acres. Thus, it can be concluded that the majority of date producers
could be considered small entities. According to data from the
Committee, the majority of California date handlers may also be
considered small entities.
This rule would increase the assessment rate established for the
Committee and collected from handlers for the 2010-11 and subsequent
crop years from $0.75 to $1.00 per hundredweight of dates handled. The
Committee unanimously recommended 2010-11 expenditures of $245,000 and
an assessment rate of $1.00 per hundredweight of dates. The proposed
assessment rate is $0.25 higher than the 2009-10 rate currently in
effect. The quantity of assessable dates for the 2010-11 crop year is
estimated at 26,000,000 pounds. Thus, the $1.00 rate should provide
approximately $260,000 in assessment income and will be adequate to
meet the budgeted expenses.
The major expenditures recommended by the Committee for the 2010-11
crop year include $85,000 for general and administrative programs,
$127,875 for promotional programs, $17,900 for nutritional research,
and $14,225 for marketing and media consulting. The Committee also
hopes to add $16,500 to its operating reserve. Prior to arriving at
this budget, the Committee considered information from various sources,
such as the Committee's Marketing Subcommittee. Alternative expenditure
levels were discussed, but the Committee ultimately decided that the
recommended levels were reasonable to properly administer the order.
The assessment rate of $1.00 per hundredweight of dates was then
derived, based upon the Committee's estimates of the available
operating reserve, projected crop size, and anticipated expenses.
As previously noted, NASS reported that the average producer price
for 2009-10 crop dates was $1,450 per ton, or $72.50 per hundredweight.
No
[[Page 56021]]
official NASS estimate is available yet for 2010-11. However, the
average grower price for the 3-year period between 2007-08 and 2009-10
was $1,756.67 per ton, or $87.83 per hundredweight.
Assuming that the average producer price for 2010-11 will range
between $72.50 and $87.83 per hundredweight, the estimated assessment
revenue, stated as a percentage of producer revenue, would range
between 1.38 and 1.14 percent ($1.00 per hundredweight divided by
either $72.50 or $87.83 per hundredweight). Thus, assessment revenue
should be less than 1.5 percent of estimated producer revenue for 2010-
11.
This action would increase the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
would be offset by the benefits derived by the operation of the
marketing order. In addition, the Committee's meeting was widely
publicized throughout the California date industry and all interested
persons were invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the June 24,
2010, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue. Finally, interested
persons are invited to submit comments on this rule, including the
regulatory and informational impacts of this action on small
businesses.
This proposed rule would impose no additional reporting or
recordkeeping requirements on either small or large California date
handlers. As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
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 Antoinette Carter at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A 30-day comment period is provided to allow interested persons to
respond to this proposed rule. Thirty days is deemed appropriate
because: (1) The 2010-11 crop year begins on October 1, 2010, 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
Committee needs to have sufficient funds to pay its expenses, which are
incurred on a continuous basis; and (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.
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--DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY, CALIFORNIA
1. The authority citation for 7 CFR part 987 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 987.339 is revised to read as follows:
Sec. 987.339 Assessment rate.
On and after October 1, 2010, an assessment rate of $1.00 per
hundredweight is established for California dates.
Dated: September 10, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-22981 Filed 9-14-10; 8:45 am]
BILLING CODE 3410-02-P