[Federal Register Volume 72, Number 173 (Friday, September 7, 2007)]
[Rules and Regulations]
[Pages 51354-51357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4368]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. AMS-FV-07-0104; FV07-987-1 IFR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final 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 2007-08 
and subsequent crop year from $0.95 to $0.75 per hundredweight of dates 
handled. The committee recommended decreasing the assessment rate to 
reduce its cash reserve levels. 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 September 10, 2007. Comments received by November 6, 
2007, 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 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.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior 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].

[[Page 51355]]

    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 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, 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, 2007, 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 3 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 2007-08 and subsequent crop years from $0.95 per to 
$0.75 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 4 discussed in a public meeting. 
Thus, all directly affected persons have an opportunity to participate 
and provide input.
    For the 2005-06 crop year 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 21, 2007, and unanimously recommended 
2007-08 expenditures of $209,182 and an assessment rate of $0.75 per 
hundredweight of California dates. In comparison, last year's budgeted 
expenditures were $127,485. The assessment rate of $0.75 is $0.20 lower 
than the rate currently in effect. The committee believes that the 
assessment rate should be reduced, because the 2006-07 crop was 3 
million pounds larger than expected, resulting in $102,652 in 
accumulated cash reserves available for 2007-08 expenditures. Section 
987.72(c) states that the reserve may not exceed 50 percent of the 
average of expenses incurred during the most recent five preceding crop 
years. The committee believes the decreased assessment rate will allow 
it to reduce the amount it holds in cash reserves to $30,115, by 
September 30, 2008, the end of the 2007-08 crop year. That reserve 
amount would be within the limits provided in Sec.  987.72(c)
    Proceeds from sales of cull dates are 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. 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 2007-08 crop year, the committee estimated that $2,000 from the 
surplus account would be needed to refund assessments used in paying 
committee expenses incurred in disposing of surplus dates.
    The major expenditures recommended by the committee for the 2007-08 
crop year include $87,312 for general and administrative programs, 
$67,870 for promotional programs, $24,000 for marketing and media 
consulting, $5,000 for moving expenses, and $5,000 for updating 
marketing materials. The committee also budgeted $20,000 as a 
contingency reserve for other marketing and promotion projects that it 
may wish to support later in the year.
    By comparison, expenditures for the 2006-07 crop year were 
$127,485. Major expenditures recommended by the committee included 
$75,095 for general and administrative expenses, $22,390 for 
promotional expenses, and $30,000 for date nutritional analysis.
    The assessment rate recommended by the committee was derived by 
adding the incoming reserve funds from the 2006-07 crop year 
($105,652), plus the anticipated assessment income from an estimated 
crop of 19,000,000 million pounds at $0.75 per hundredweight ($142,500) 
along with the contribution from the surplus program ($2,000), minus 
the proposed expenses of $209,182, and a refund of excess assessments 
of $10,855, leaving a reserve of $30,115 to carry into the 2008-09 crop 
year.
    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 2007-08 budget and those 
for subsequent crop years will be reviewed and, as appropriate, 
approved by USDA.

[[Page 51356]]

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.
    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 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 $6,500,000.
    An industry profile shows that four of the 10 handlers (40 percent) 
had date sales over $6,500,000 and could be considered large handlers 
by the Small Business Administration. Six of the 10 handlers (60 
percent) had date sales of less than $6,500,000 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 remaining producers have incomes less 
than $750,000. The majority of handlers and producers of California 
dates may be classified as small entities.
    This rule decreases the assessment rate established for the 
committee and collected from handlers for the 2007-08 and subsequent 
crop years from $0.95 to $0.75 per hundredweight of dates handled. The 
committee unanimously recommended 2007-08 expenditures of $209,182 and 
an assessment rate of $0.75 per hundredweight of dates, which is $0.20 
lower than the 2005-06 rate, currently in effect. The committee 
recommended decreasing the assessment rate to reduce its cash reserve 
levels.
    The quantity of assessable dates for the 2007-08 crop year is 
estimated at 19,000,000 pounds. Thus, the $0.75 rate should provide 
$142,500 in assessment income and, with reserve funds of $105,652 and 
the $20,000 contribution from the surplus program, will be adequate to 
meet the 2007-08 crop year expenses.
    The major expenditures recommended by the committee for the 2007-08 
crop year include $87,312 for general and administrative programs, 
$67,870 for promotional programs, $24,000 for marketing and media 
consulting, $5,000 for moving expenses, and $5,000 for updating 
marketing materials. The committee also budgeted $2,000 as a 
contingency reserve for other marketing and promotion projects that it 
may wish to support later in the year.
    The committee believes that the assessment rate should be reduced 
because the unanticipated increased date production during the 2006-07 
crop year resulted in a larger carry-in of funds than the committee 
prefers. The decrease in the assessment rate would allow the committee 
to reduce its cash reserves to an appropriate level.
    The committee reviewed and unanimously recommended 2007-08 crop 
year expenditures of $209,180. Prior to arriving at this budget, the 
committee considered information from various sources, such as the 
committee's Marketing Subcommittee. Alternative expenditure levels were 
an option available to the committee, but given the windfall from the 
larger-than-expected 2006-07 crop, it was ultimately determined that a 
$209,180 budget would be most beneficial to the industry. The 
assessment rate of $0.75 per hundredweight of dates was then derived, 
based upon the committee's estimates of the incoming reserve, income, 
and anticipated expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2007-08 crop year could range between $45 and $50 per 
hundredweight of dates. Therefore, the estimated assessment revenue for 
the 2007-08 crop year as a percentage of total grower revenue is 
approximately 1.67 to 1.5 percent, respectively.
    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 21, 
2007, 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.
    This action 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.
    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/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 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 2007-08 crop year begins on October 1, 2007, 
and the marketing order requires that the rate of assessment for each 
crop years apply to all assessable dates handled during such crop year; 
(2) the action decreases the assessment rate for assessable dates 
beginning with the 2007-08 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.

[[Page 51357]]

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 997--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
Section 987.339 is revised to read as follows:


Sec.  987.339  Assessment rate.

    On and after October 1, 2007, an assessment rate of $0.75 per 
hundredweight is established for California dates.

    Dated: August 30, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-4368 Filed 9-6-07; 8:45 am]
BILLING CODE 3410-02-M