[Federal Register Volume 68, Number 144 (Monday, July 28, 2003)]
[Proposed Rules]
[Pages 44241-44244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19128]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV03-987-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule would decrease the assessment rate established for 
the California Date Administrative Committee (Committee) for the 2003-
04 and subsequent crop years from $0.90 to $0.75 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 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 August 27, 2003.

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 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

[[Page 44242]]

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, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
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, 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 
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 (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, 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, 2003, 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 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 decrease the assessment rate established for the 
Committee for the 2003-04 and subsequent crop years from $0.90 to $0.75 
per hundredweight of assessable dates handled.
    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 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 at a 
public meeting. Thus, all directly affected persons have an opportunity 
to participate and provide input.
    For the 2002-03 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 20, 2003, and unanimously recommended 
2003-04 expenditures of $225,365 and an assessment rate of $0.75 per 
hundredweight of dates handled. In comparison, last year's budgeted 
expenditures were $273,450. The recommended assessment rate of $0.75 is 
$0.15 lower than the rate currently in effect. The decrease in the 
assessment rate and budget is primarily due to a lower marketing and 
promotion budget.
    Proceeds from the sales of cull dates are usually deposited in 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.
    Last year, the Committee applied $5,000 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 and reduced surplus pool 
costs, the Committee decided not to apply any of the surplus pool funds 
toward the 2003-04 Committee budget. The Committee, instead, 
recommended assessing handlers $0.75 per hundredweight and use $30,365 
from the administrative reserves to fund the reduced Committee budget 
of $225,365.
    The budgeted administrative expenses for the 2003-04 crop year 
include $123,710 for labor and office expenses. This compares to 
$123,450 in budgeted expenses in 2002-03. In addition, $101,655 has 
been budgeted for marketing and promotion under the program for the 
2003-04 crop year. This compares to $150,000 in budgeted marketing and 
promotion expenses for the 2002-03 crop year.
    The assessment rate of $0.75 per hundredweight of assessable dates 
was derived by applying the following formula where:

A = Administrative Reserve ($30,365 of the anticipated $40,000 
Administrative Reserve)
B = 2003-04 expected shipments (260,000 hundredweight)
C = 2003-04 expenses ($225,365);
(C-A) / B = $0.75 per hundredweight.

    Estimated shipments should provide $195,000 in assessment income. 
Income derived from handler assessments and the administrative reserves 
would be adequate to cover budgeted expenses. Funds in the reserve are 
expected to total about $23,553 by September 30, 2004, and therefore 
would be less than the maximum permitted by the order (not to exceed 50 
percent 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 USDA 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings.

[[Page 44243]]

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 2003-04 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), 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 of less than $5,000,000. 
Five of the 10 handlers (50 percent) shipped over $5,000,000 of dates 
and could be considered large handlers by the Small Business 
Administration. Five of the 10 handlers (50 percent) 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 decrease the assessment rate established for the 
Committee and collected from handlers for the 2003-04 and subsequent 
crop years from $0.90 to $0.75 per hundredweight of assessable dates 
handled. The Committee unanimously recommended 2003-04 expenditures of 
$225,365 and the $0.75 per hundredweight assessment rate. The proposed 
assessment rate of $0.75 is $0.15 lower than the rate currently in 
effect. The quantity of assessable dates for the 2003-04 crop year is 
estimated at 260,000 hundredweight. Thus, the $0.75 per hundredweight 
rate should provide $195,000 in assessment income. This along with 
administrative reserve funds would be adequate to meet the Committee's 
2003-04 crop year expenses.
    The budgeted administrative expenses for the 2003-04 crop year 
include $123,710 for labor and office expenses. This compares to 
$123,450 in budgeted expenses in 2002-03. In addition, $101,655 has 
been budgeted for marketing and promotion under the marketing order for 
the 2003-04 crop year. This compares to $150,000 in budgeted marketing 
and promotion expenses for the 2002-03 crop year.
    The Committee reviewed and unanimously recommended 2003-04 
expenditures of $225,365 which include marketing and promotion 
programs. Prior to arriving at this budget, the Committee considered 
alternative expenditure levels, including a proposal to not have a 
budget. The assessment rate of $0.75 per hundredweight of assessable 
dates was then determined by applying the following formula where:

A = Administrative Reserve ($30,365 of the anticipated $40,000 
Administrative Reserve)
B = 2003-04 expected shipments (260,000 hundredweight)
C = 2003-04 expenses ($225,365);
(C - A) / B = $0.75 per hundredweight.

    Estimated shipments should provide $195,000 in assessment income. 
Income derived from handler assessments and the administrative reserves 
would be adequate to cover budgeted expenses. Funds in the 
administrative reserve are expected to total about $23,553 by September 
30, 2004, and therefore would be less than the maximum permitted by the 
order (not to exceed 50 percent of the average of expenses incurred 
during the most recent five preceding crop years; Sec.  987.72(c)).
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2003-04 season could range between $40 and $120 per 
hundredweight of dates. Therefore, the estimated assessment revenue for 
the 2003-04 crop year as a percentage of total grower revenue could 
range between .6 and 2 percent.
    This action would decrease the assessment obligation imposed on 
handlers under the Federal marketing order. Assessments are applied 
uniformly on all handlers, and some of the costs may be passed on to 
producers. However, decreasing the assessment rate would reduce 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 20, 2003, 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.
    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/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 2003-04 crop year begins on October 1, 2003, 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 revised to read as follows:

[[Page 44244]]

Sec.  987.339  Assessment rate.

    On and after October 1, 2003, an assessment rate of $0.75 per 
hundredweight is established for California dates.

    Dated: July 23, 2003.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 03-19128 Filed 7-25-03; 8:45 am]
BILLING CODE 3410-02-P