[Federal Register Volume 73, Number 13 (Friday, January 18, 2008)]
[Rules and Regulations]
[Pages 3377-3379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-878]



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  Federal Register / Vol. 73, No. 13 / Friday, January 18, 2008 / Rules 
and Regulations  

[[Page 3377]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which decreased the 
assessment rate established for the California Date Administrative 
Committee (committee) for the 2007-08 and subsequent crop years from 
$0.95 to $0.75 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 began October 1 and 
ends September 30. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Effective Date: February 19, 2008.

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].
    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.''
    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 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 continues in effect the action that decreased 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 discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2005-06 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 $105,652 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

[[Page 3378]]

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 temporarily to defray 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 of $0.75 per hundredweight of assessable dates 
was derived by applying the following formula where:
    A= 2006-07 reserve on 10/1/07 ($105,652);
    B= 2007-08 reserve on 9/30/07 ($30,115);
    C= 2007-08 expenses ($209,182);
    D= Cull Surplus Fund ($2,000);
    E= Assessment Refund ($10,855); and
    F= 2007-08 expected shipments (190,000 hundredweight).
    (B-A+C-D+E)/F.
    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.

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.
    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 (SBA) (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 SBA. 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 continues in effect the action that decreased 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 $2,000 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 $20,000 as a 
contingency reserve for other marketing and promotion projects that it 
may wish to support later in the year.
    The committee recommended a reduced assessment rate 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 $209,182. 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 
$209,182 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 available reserve, income, 
handler assessment refund, and anticipated expenses.
    A review of historical information and preliminary information 
pertaining to the 2007-08 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 continues in effect the action that decreased the 
assessment obligation imposed on handlers. Assessments are applied 
uniformly on all handlers, and some of the costs may

[[Page 3379]]

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.
    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. In addition, as 
noted in the initial regulatory flexibility analysis, USDA has not 
identified any relevant Federal rules that duplicate, overlap or 
conflict with this rule.
    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.
    An interim final rule concerning this action was published in the 
Federal Register on September 7, 2007 (72 FR 51354). Copies of that 
rule were also mailed or sent via facsimile to all date handlers. 
Finally, the interim final rule was made available through the Internet 
by USDA and the Office of the Federal Register. A 60-day comment period 
was provided for interested persons to respond to the interim final 
rule. The comment period ended on November 6, 2007, and 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.

List of Subjects in 7 CFR Part 987

    Dates, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 987--DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY, CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 987 which was 
published at 72 FR 51354 on September 7, 2007, is adopted as a final 
rule without change.

    Dated: January 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E8-878 Filed 1-17-08; 8:45 am]
BILLING CODE 3410-02-P