[Federal Register Volume 69, Number 198 (Thursday, October 14, 2004)]
[Rules and Regulations]
[Pages 60947-60949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23042]



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  Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / 
Rules and Regulations  

[[Page 60947]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV04-987-2 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate established for the 
California Date Administrative Committee (committee) for the 2004-05 
and subsequent crop years from $0.75 to $0.85 per hundredweight of 
dates handled. The committee locally administers the marketing order 
which 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 committee recommended increasing the 
assessment rate because additional revenues are needed to fund program 
operations. 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 Date: October 15, 2004.

FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program Analyst, 
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 complying 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 No. 127 and Marketing 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 issued herein will be applicable to all assessable dates 
beginning on October 1, 2004, 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 increases the assessment rate established for the 
committee for the 2004-05 and subsequent crop years from $0.75 to $0.85 
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 in the production area and are familiar 
with the committee's needs and with the costs for goods and services in 
their local area. As such, they are in a position to formulate an 
appropriate budget and assessment rate. The assessment rate is 
formulated and discussed at a public meeting, and all directly affected 
persons have an opportunity to participate in the deliberations and 
provide input.
    For the 2003-04 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 30, 2004, and unanimously recommended 
2004-05 crop year expenditures of $223,000 and an assessment rate of 
$0.85 per hundredweight of dates handled. In comparison, last year's 
budgeted expenditures were $225,365. The recommended assessment rate of 
$0.85 is $0.10 higher than the rate currently in effect. The increase 
in the assessment rate is needed to fund the committee's current 
budget, and maintain its financial operating reserve at about $36,000, 
a level which the committee deems satisfactory.
    The budgeted administrative expenses for the 2004-05 crop year 
include $90,427 for labor and office expenses. This compares to 
$123,710 in budgeted expenses in 2003-04. In addition, $112,499 has 
been budgeted for marketing and promotion under the program for the 
2004-05 crop year. This compares to $101,655 in budgeted marketing and 
promotion expenses for the 2003-04 crop year. A total of

[[Page 60948]]

$20,074 is budgeted as a contingency reserve for 2004-05. A contingency 
reserve of $10,000 was included in the budget for 2003-04.
    The committee administers a surplus account wherein the proceeds 
from sales of cull dates are deposited 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. For the 2004-05 crop year, the 
committee voted to use $2,000 from the surplus account to help fund the 
committee's budget of $223,000.
    The assessment rate of $0.85 per hundredweight of assessable dates 
was derived by applying the following formula where:

    A = Cull Surplus Fund ($2,000);
    B = 2004-05 expected shipments (260,000 hundredweight);
    C = 2004-05 expenses ($223,000);
    (C-A) B = $0.85 per hundredweight.

    Estimated shipments should provide $221,000 in assessment income. 
Income derived from handler assessments and $2,000 from the cull 
surplus fund would be adequate to cover budgeted expenses. Funds in the 
financial operating reserve are expected to total about $35,700 by 
September 30, 2005, and therefore will 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 as 
required under Sec.  987.72(c)).
    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 will be in effect 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 2004-05 budget and those 
for subsequent crop years will be reviewed and, as appropriate, 
approved by USDA.

Final 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 final 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 124 producers of dates in the production 
area and approximately 10 handlers subject to regulation under the 
marketing order. The Small Business Administration (13 CFR 121.201) 
defines small agricultural service firms as those having annual 
receipts of less than $5,000,000, and defines small agricultural 
producers as those having annual receipts of less than $750,000.
    An industry profile shows that four of the 10 handlers (40 percent) 
shipped over $5,000,000 of dates and could be considered large handlers 
by the Small Business Administration. Six of the 10 handlers (60 
percent) shipped under $5,000,000 of dates and could be considered 
small handlers. An estimated 7 producers, or less than 6 percent, of 
the 124 total producers, would be considered large producers with 
annual incomes over $750,000. The majority of handlers and producers of 
California dates may be classified as small entities.
    This rule increases the assessment rate established for the 
committee and collected from handlers for the 2004-05 and subsequent 
crop years from $0.75 to $0.85 per hundredweight of assessable dates 
handled. The committee unanimously recommended 2004-05 expenditures of 
$223,000 and the $0.85 per hundredweight assessment rate at their 
meeting on June 30, 2004. The assessment rate of $0.85 is $0.10 higher 
than the rate currently in effect. The quantity of assessable dates for 
the 2004-05 crop year is estimated at 260,000 hundredweight. Thus, the 
$0.85 per hundredweight rate should provide $221,000 in assessment 
income. This, along with approximately $2,000 from the surplus account, 
would be adequate to meet the committee's 2004-05 crop year expenses.
    The budgeted administrative expenses for the 2004-05 crop year 
include $90,427 for labor and office expenses. This compares to 
$123,710 in budgeted expenses in 2003-04. In addition, $112,499 has 
been budgeted for marketing and promotion under the marketing order for 
the 2004-05 crop year. This compares to $101,655 in budgeted marketing 
and promotion expenses for the 2003-04 crop year. A total of $20,074 is 
budgeted as a contingency reserve. A contingency reserve totaling 
$10,000 was budgeted last year.
    The committee administers a surplus account wherein the proceeds 
from sales of cull dates are deposited for subsequent use by the 
committee in covering the surplus pool share of the committee's 
expenses. For the 2004-05 crop year, the committee voted to use $2,000 
from the surplus account to help fund the committee's budget of 
$223,000.
    The committee reviewed and unanimously recommended 2004-05 
expenditures of $223,000 which include marketing and promotion 
programs. Prior to arriving at this budget, the committee considered 
alternative expenditure levels and alternative assessment levels. The 
committee agreed that the increased assessment rate was appropriate to 
cover expenses and maintain its financial operating reserve at a 
satisfactory level ($35,700). The assessment rate of $0.85 per 
hundredweight of assessable dates was then determined by applying the 
following formula where:

    A = Cull Surplus Fund ($2,000);
    B = 2004-05 expected shipments (260,000 hundredweight);
    C = 2004-05 expenses ($223,000);
    (C - A) B = $0.85 per hundredweight.

    Estimated shipments should provide $221,000 in assessment income. 
Income derived from handler assessments and $2,000 from the cull 
surplus fund would be adequate to cover budgeted expenses. Funds in the 
financial operating reserve are expected to total about $35,700 by 
September 30, 2005, and therefore will 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 as 
required under 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 2004-05 season could range between $40 and $120 per 
hundredweight of dates. Therefore, the estimated assessment revenue for 
the

[[Page 60949]]

2004-05 crop year as a percentage of total grower revenue could range 
between .7 and 2.1 percent.
    This action increases the assessment obligation imposed on handlers 
under the Federal marketing order. 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 30, 2004, meeting was a public meeting and all entities, both 
large and small, were able to express views on this issue.
    This rule imposes 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 proposed rule concerning this action was published in the Federal 
Register on August 16, 2004 (69 FR 50339). Copies of the proposed rule 
were also mailed or sent via facsimile to all date handlers. Finally, 
the proposal was made available through the Internet by USDA and the 
Office of the Federal Register. A 30-day comment period ending 
September 15, 2004, was provided for interested persons to respond to 
the proposal. No comments were received.
    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.
    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 also found and determined that good 
cause exists for not postponing the effective date of the rule until 30 
days after publication in the Federal Register because the 2004-05 crop 
year begins October 1, 2004, and the marketing order requires that the 
rate of assessment for each crop year apply to assessable dates handled 
during such period. The committee needs to have sufficient funds to pay 
its expenses which are incurred on a continuous basis. Further, 
handlers are aware of this rule which was unanimously recommended at a 
public meeting. Also, a 30-day comment period was provided for in the 
proposed rule, and no comments were received.

List of Subjects in 7 CFR Part 987

    Dates, Marketing agreements, Reporting and recordkeeping 
requirements.

0
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, 2004, an assessment rate of $0.85 per 
hundredweight is established for California dates.

    Dated: October 7, 2004.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 04-23042 Filed 10-13-04; 8:45 am]
BILLING CODE 3410-02-P