[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Proposed Rules]
[Pages 89327-89330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28279]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Doc. No. AMS-SC-23-0058]


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

AGENCY: Agricultural Marketing Service, Department of Agriculture 
(USDA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement a recommendation from the 
California Date Administrative Committee (Committee) to decrease the 
assessment rate established for the 2023-2024 and subsequent crop 
years. The proposed assessment rate would remain in effect indefinitely 
unless modified, suspended, or terminated.

DATES: Comments must be received by January 26, 2024.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments can be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. 
Comments can also be submitted to the Docket Clerk electronically by 
Email: [email protected] or via the internet at: https://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register. 
Comments submitted in response to this proposed rule will be included 
in the record and will be made available to the public and can be 
viewed at: https://www.regulations.gov. Please be advised that the 
identity of the individuals or entities submitting the comments will be 
made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Bianca Bertrand, Marketing Specialist, 
or Gary Olson, Chief, West Region Branch, Market Development Division, 
Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, or 
Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend regulations issued to carry out a marketing order as 
defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing 
Order No. 987, as amended (7 CFR part 987), regulating the handling of 
domestic dates produced or packed in Riverside County, California. Part 
987 referred to as 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 Committee locally 
administers the Order and is comprised of producers and producer-
handlers operating within the area of production.
    The Agricultural Marketing Service (AMS) is issuing this proposed 
rule in conformance with Executive Orders 12866, 13563, and 14094. 
Executive Orders 12866 and 13563 direct agencies to assess all costs 
and benefits of

[[Page 89328]]

available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. Executive Order 14094 
supplements and reaffirms Executive Orders 12866 and 13563 and directs 
agencies to conduct proactive outreach to engage interested and 
affected parties through a variety of means, such as through field 
offices, and alternative platforms and media. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Orders 12866, 13563, and 14094 
review.
    This proposed rule has been reviewed under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have Tribal implications. AMS has determined that this proposed rule is 
unlikely to have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. Under the 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 
would be applicable to all assessable dates for the 2023-2024 crop 
year, and continue until amended, suspended, or terminated.
    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 proposed rule would decrease the assessment rate for dates 
handled under the Order from $0.20 per hundredweight, the rate that was 
established for the 2020-2021 and subsequent crop years, to $0.15 per 
hundredweight for the 2023-2024 and subsequent crop years.
    The Order authorizes the Committee, with the approval of AMS, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. The members of the Committee are 
familiar with the Committee's needs and with the costs of goods and 
services in their local area. Therefore, they can formulate an 
appropriate budget and assessment rate. The assessment rate is 
formulated and discussed in a public meeting, and all directly affected 
persons have an opportunity to participate and provide input.
    For the 2020-2021 and subsequent crop years, the Committee 
recommended, and AMS approved, an assessment rate of $0.20 per 
hundredweight of dates. That rate continues in effect from crop year to 
crop year until modified, suspended, or terminated by AMS upon 
recommendation and information submitted by the Committee or other 
information available to AMS.
    The Committee met on June 27, 2023, and recommended 2023-2024 crop 
year expenditures of $75,800 and an assessment rate of $0.15 per 
hundredweight of dates handled for the 2023-2024 and subsequent crop 
years. In comparison, last year's budgeted expenditures were $77,250. 
The proposed assessment rate of $0.15 per hundredweight is $0.05 lower 
than the rate currently in effect. The Committee recommended decreasing 
the assessment rate to better align assessment revenue with budgeted 
expenses and to keep the Committee's financial reserve within the 
amount allowed under the Order. The Committee projects that handlers 
will handle 426,000 hundredweight of California dates for the 2023-2024 
crop year, which is the same quantity that was projected for the 2022-
2023 crop year. The proposed lower rate would provide sufficient funds 
to cover most of the 2023-2024 crop year anticipated expenses, with the 
balance coming from other income and the Committee's financial reserve. 
Assessments on California dates handled would generate approximately 
$63,900 in income at the recommended $0.15 per hundredweight assessment 
rate.
    The Committee's budgeted expenditures for the 2023-2024 crop year 
total $75,800. The Committee's expenses include $48,000 for management 
services, $16,800 for office administration, and $11,000 for the 
financial audit. In comparison, the previous crop year's total budget 
was $77,250, with $48,000 for management services, $19,750 for office 
administration, and $9,500 for the audit.
    The assessment rate recommended by the Committee was derived by 
considering anticipated expenses, the expected volume of dates handled, 
and the amount of funds available in the operating reserve. Income 
derived from handler assessments of $63,900 (426,000 hundredweight 
assessed at the proposed rate of $0.15) would be adequate to cover most 
of the Committee's budgeted expenses of $75,800, with the balance 
covered from $5,100 in surplus allocation income and $6,800 from 
reserve funds. After expending $6,800 from the reserve on budgeted 
expenses, the ending 2023-2024 crop year balance in the financial 
reserve fund is expected to be $49,400, which would be less than the 
average of the annual expenses of the preceding five years, as mandated 
by the Order in Sec.  987.72(d).
    Although this proposed 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 AMS. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. AMS 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 2023-2024 crop year budget, 
and those for subsequent crop years, will be reviewed and, as 
appropriate, approved by AMS.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed 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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the

[[Page 89329]]

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 70 producers of dates in the production 
area and 11 handlers subject to regulation under the Order. Small 
agricultural producers of dates are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$3,500,000 (NAICS code 111339), and small agricultural service firms 
are defined as those whose annual receipts are less than $34,000,000 
(NAICS code 115114) (13 CFR 121.201).
    According to the National Agricultural Statistics Service (NASS), 
data for the most-recently completed crop year (2022) shows that 
California date farmers produced 49,200 tons of dates and that the 
producer price for fresh market California dates was $2,840 per ton. 
With the estimated 49,200-ton crop, the total farm gate value for 
California date producers was approximately $139,728,000 (49,200 
multiplied by $2,840). Therefore, the average fresh market date revenue 
for the 70 producers within the production area would be about 
$1,996,114 ($139,728,000 divided by 70). Thus, it can be concluded that 
the many of the date producers within the production area could be 
considered small entities.
    Furthermore, USDA Market News reported an average terminal market 
price of $53.90 per 11-pound carton for the 2021-2022 crop year. With 
approximately 98,400,000 pounds handled, the industry would have 
shipped an estimated 8,945,454 11-pound cartons (98,400,000 divided by 
11-pound carton) of packaged dates for a total value of $482,159,971 
(8,945,454 multiplied by $53.90). With 11 date handlers within the 
production area, the average revenue per handler is estimated to be 
$43,832,724 for the 2021-2022 crop year ($482,159,971 divided by 11). 
Thus, most California date handlers could be considered large entities.
    This proposal would decrease the assessment rate collected from 
handlers for the 2023-2024 and subsequent crop years from $0.20 to 
$0.15 per hundredweight of assessable dates. The Committee unanimously 
recommended 2023-2024 crop year expenditures of $75,800 and a $0.15 per 
hundredweight assessment rate. The Committee expects the industry to 
handle 426,000 hundredweight of assessable dates during the 2023-2024 
crop year. Thus, at the $0.15 per hundredweight rate, the Committee 
anticipates $63,900 in assessment income (426,000 hundredweight 
multiplied by $0.15 per hundredweight). The Committee also expects to 
utilize surplus allocation ($5,100) and the Committee's monetary 
reserve ($6,800) to cover the remaining $11,900 of expenses. Income 
derived from all sources are expected to be adequate to meet budgeted 
expenditures for the 2023-2024 crop year. The Committee's reserve 
balance (approximately $49,400 at the end of the 2023-2024 crop year) 
would be maintained at a level that the Committee believes is 
appropriate and is compliant with the provisions of the Order.
    The Committee's budgeted expenditures for the 2023-2024 crop year 
total $75,800. The Committee's expenses include $48,000 for management 
services, $16,800 for office administration, and $11,000 for the 
financial audit. In comparison, the previous crop year's total budget 
was $77,250, with $48,000 for management services, $19,750 for office 
administration, and $9,500 for the audit.
    Prior to arriving at the budget and proposed assessment rate, the 
Committee discussed various alternatives. However, the Committee 
determined that the recommended assessment rate would be able to reduce 
the financial burden on the industry without drawing down reserves to 
an unsustainable rate. The assessment rate of $0.15 per hundredweight 
of assessable dates was derived by considering anticipated expenses, 
the projected volume of dates handled, the projected monetary balance 
held in reserve, and additional pertinent factors.
    A review of NASS information indicates that the average producer 
price for the 2022 crop year was $2,840 per ton ($142.00 per 
hundredweight). Utilizing the recommended assessment rate of $0.15 per 
hundredweight, the estimated assessment revenue as a percentage of 
total producer revenue would be approximately 0.106 percent ($0.15 per 
hundredweight divided by $142.00 and multiplied by 100).
    This proposed action would decrease 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, these 
costs are expected to be offset by the benefits derived by the 
operation of the Order.
    The Committee's meetings are widely publicized throughout the 
production area. The California date industry and all other interested 
persons are invited to attend the meetings and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 27, 
2023, 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 proposed rule, including 
the regulatory and information collection impacts of this action on 
small businesses.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178, Vegetable 
and Specialty Crops. No changes in those requirements would be 
necessary as a result of this proposed rule. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This proposed rule would not impose any 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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower 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. All written comments timely received 
will be considered before a final determination is made on this rule.

List of Subjects in 7 CFR Part 987

    Dates, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR part 987 as follows:

[[Page 89330]]

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. Revise 987.339 to read as follows:


Sec.  987.339  Assessment rate.

    On and after October 1, 2023, an assessment rate of $0.15 per 
hundredweight is established for dates produced or packed in Riverside 
County, California.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-28279 Filed 12-26-23; 8:45 am]
BILLING CODE P