FR Doc 03-24539

[Federal Register: September 29, 2003 (Volume 68, Number 188)]
[Rules and Regulations]
[Page 55809-55811]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se03-2]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV03-987-1 FR]

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: This rule decreases 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 will remain in effect indefinitely
unless modified, suspended, or terminated.

EFFECTIVE DATE: September 30, 2003.

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: Jay.Guerber@usda.gov.

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 issued 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 decreases the assessment rate established for the
Committee for the 2003-04 and subsequent crop years

[[Page 55810]]

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 using
$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.

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 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 decreases 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
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 should 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

[[Page 55811]]

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:

Estimated shipments should provide $195,000 in assessment income.
Income derived from handler assessments and the administrative reserves
will be adequate to cover budgeted expenses. Funds in the
administrative reserve on September 30, 2004, are expected to 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 decreases 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 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 20, 2003, 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 July 28, 2003 (68 FR 44241). 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 the Office of
the Federal Register and USDA. A 30-day comment period ending August
27, 2003, 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//
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 this rule until
30 days after publication in the Federal Register because handlers will
soon be receiving 2003-04 crop dates from growers. In addition, the
crop year begins on October 1, 2003, and the assessment rate applies to
all assessable dates during the 2003-04 and subsequent seasons.
Further, handlers are aware of this rule which was 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, 2003, an assessment rate of $0.75 per
hundredweight is established for California dates.

Dated: September 23, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-24539 Filed 9-26-03; 8:45 am]

BILLING CODE 3410-02-P