[Federal Register Volume 66, Number 199 (Monday, October 15, 2001)]
[Proposed Rules]
[Pages 52363-52365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25782]


 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 66, No. 199 / Monday, October 15, 2001 / 
Proposed Rules  

[[Page 52363]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV01-987-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule would increase the assessment rate established for 
the California Date Administrative Committee (Committee) for the 2001-
02 and subsequent crops years from $0.10 to $0.25 per hundredweight of 
dates handled. The Committee locally administers the marketing order 
that regulates the handling of dates produced or packed in Riverside 
County, California. Authorization to assess date handlers enables the 
Committee to incur expenses that are reasonable and necessary to 
administer the program. The fiscal period 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 November 14, 2001.

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, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-8938, or E-mail: [email protected]. 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.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Marketing Assistant, or 
Richard P. Van Diest, Marketing Specialist, California Marketing Field 
Office, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey St., 
suite 102B, Fresno, CA 93721; telephone: (559) 487-5901, Fax: (559) 
487-5906; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 720-8938.
    Small businesses may request information on compliance with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 005720-8938, or E-mail: [email protected].

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 marketing agreement and order are 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 (Department) 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, 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 will be applicable to all assessable dates 
beginning on October 1, 2001, and continue until amended, suspended, or 
terminated. This rule will not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    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 the Secretary 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 the Secretary 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 the 
Secretary'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 2001-02 and subsequent crop years from $0.10 per 
hundredweight to $0.25 per hundredweight of assessable dates handled.
    The California date marketing order provides authority for the 
Committee, with the approval of the Department, to formulate an annual 
budget of expenses and collect assessments from handlers to administer 
the program. The members of the Committee are producers and producer-
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 1998-99 and subsequent crop years, the Committee 
recommended, and the Department approved, an assessment rate that would 
continue in effect from crop year to crop year unless modified, 
suspended, or terminated by the Secretary upon recommendation and 
information submitted by the Committee or other information available 
to the Secretary.
    The Committee met on August 16, 2001, and unanimously recommended 
2001-02 expenditures of $90,800 and an assessment rate of $0.25 per 
hundredweight of dates handled. In comparison, last year's budgeted 
expenditures were $116,800. The recommended assessment rate of $0.25 is 
$0.15 higher than the rate currently in effect. The higher assessment 
rate is needed to offset a reduction in the

[[Page 52364]]

Committee's reserve funds and a reduction in surplus funds available to 
the Committee from the sale of cull dates. Proceeds from the sales of 
cull dates are deposited into the 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.
    Last year, the Committee applied $15,000 of surplus account monies 
to cover surplus pool expenses. Based on a recent trend of declining 
sales of cull dates over the past few years, the Committee expects the 
surplus pool share of expenses during 2001-02 to be $5,000, or $10,000 
less than expected during 2000-01. Hence, the revenue available from 
the surplus pool to cover Committee expenses during 2001-02 is expected 
to be less than last year. To offset this reduction in income, the 
Committee recommended increasing the assessment rate, using $20,550 
from its administrative reserves, and $250 in interest income to fund 
the 2001-02 budget.
    The major expenditures recommended by the Committee for the 2001-02 
year include $54,700 in salaries and benefits, $3,900 in office 
administration, $30,200 in office expenses, $2,000 for contingencies. 
Budgeted expenses for these items in 2000-01 were $54,100 in salaries 
and benefits, $18,000 in office administration, $39,700 in office 
expenses, and $5,000 for contingencies.
    The assessment rate recommended by the Committee was derived from 
applying the following formula where:

A = 2001-02 surplus account ($5,000);
B = amount taken from administrative reserves ($20,550);
C = 2001-02 interest income ($250);
D = 2001-02 expenses ($90,800);
E = 2001-02 expected shipments (260,000 hundredweight); (D -(A + B + C) 
 E = $0.25 per hundredweight.

    Estimated shipments should provide $65,000 in assessment income. 
Income derived from handler assessments, the surplus account (which 
contains money from cull date sales), and the administrative reserves 
would be adequate to cover budgeted expenses. Funds in the reserve are 
expected to total about $20,800 by September 30, 2001, and therefore 
would be less than the maximum permitted by the order (not to exceed 
50% of the average of expenses incurred during the most recent five 
preceding crop years; Sec. 987.72(c)).
    The proposed assessment rate would continue in effect indefinitely 
unless modified, suspended, or terminated by the Secretary upon 
recommendation and information submitted by the Committee or other 
available information.
    Although this 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 the 
Department. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The Department 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 
2001-02 budget and those for subsequent crop years would be reviewed 
and, as appropriate, approved by the Department.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 100 producers of dates in the production 
area and approximately 10 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 of less than $750,000, and small agricultural service firms 
are defined as those having annual receipts are less than $5,000,000. 
Five of the 10 handlers (50%) shipped over $5,000,000 of dates and 
could be considered large handlers by the Small Business 
Administration. Five of the 10 handlers shipped under $5,000,000 of 
dates and could be considered small handlers. The majority of 
California date producers may be classified as small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2001-02 and subsequent 
crop years from $0.10 per hundredweight to $0.25 per hundredweight of 
assessable dates handled. The Committee unanimously recommended 2001-02 
expenditures of $90,800 and an assessment rate of $0.25 per 
hundredweight. The proposed assessment rate of $0.25 is $0.15 higher 
than the rate currently in effect. The quantity of assessable dates for 
the 2001-02 crop year is estimated at 260,000 hundredweight. Thus, the 
$0.25 per hundredweight rate should provide $65,000 in assessment 
income and, in conjunction with other funds available to the Committee, 
be adequate to meet this year's expenses. Funds available to the 
Committee include income derived from assessments, the surplus account 
(which contains money from cull date sales), and the administrative 
reserves.
    The higher assessment rate is needed to offset a reduction in the 
Committee's reserve funds and an expected reduction in surplus funds 
available to the Committee from the sale of cull dates. Proceeds from 
the sales of cull dates are deposited into the surplus account for 
subsequent use by the Committee. Last year the Committee applied 
$15,000 of surplus account monies to cover surplus pool expenses. Based 
on a recent trend of declining sales of cull dates over the past few 
years, this year the Committee expects to apply $5,000 to the budget 
from the sale of cull dates.
    The major expenditures recommended by the Committee for the 2001-02 
year include $54,700 in salaries and benefits, $3,900 in office 
administration, $30,200 in office expenses, and $2,000 for 
contingencies. Budgeted expenses for these items in 2000-01 were 
$54,100 in salaries and benefits, $18,000 in office administration, 
$39,700 in office expenses, and $5,000 for contingencies.
    The Committee reviewed and unanimously recommended 2001-02 
expenditures of $90,800 which included increases in salaries and 
benefits and administrative expenses. Prior to arriving at this budget, 
the Committee considered alternative expenditure levels, including a 
proposal to not fund a compliance officer position, but determined that 
expenditures for the position were necessary to promote compliance with 
program requirements. The assessment rate of $0.25 per hundredweight of 
assessable dates was

[[Page 52365]]

then determined by applying the following formula where:

A = 2001-02 surplus account ($5,000);
B = amount taken from administrative reserves ($20,550);
C = 2001-02 interest income ($250);
D = 2001-02 expenses ($90,800)
E = 2001-02 expected shipments (260,000 hundredweight);
(D-(A + B + C))  E = $0.25 per hundredweight.

    Estimated shipments should provide $65,000 in assessment income.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2001-02 season could range between $30 and $75 per 
hundredweight of dates. Therefore, the estimated assessment revenue for 
the 2001-02 crop year as a percentage of total grower revenue would be 
less than one percent.
    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 August 
16, 2001, 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 information on 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.
    The Department 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/fv/moab.html. Any questions about the compliance guide 
should be sent to Jay Guerber 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 2001-02 crop year begins on October 1, 2001, 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--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. Section 987.339 is proposed to be revised to read as follows:


Sec. 987.339  Assessment rate.

    On and after October 1, 2001, an assessment rate of $0.25 per 
hundredweight is established for California dates.

    Dated: October 5, 2001.
Kenneth C. Clayton,
Associate Administrator Agricultural Marketing Service.
[FR Doc. 01-25782 Filed 10-12-01; 8:45 am]
BILLING CODE 3410-02-P