This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

67085 

Vol. 70, No. 213 

Friday, November 4, 2005 

DEPARTMENT OF AGRICULTURE 

Federal Crop Insurance Corporation 

7 CFR Part 457 

Common Crop Insurance Regulations 

CFR Correction 

In Title 7 of the Code of Federal 

Regulations, Parts 400 to 699, revised as 

of January 1, 2005, in § 457.8, on page 

101, under ‘‘Definitions’’ remove the 

first definition of Approved yield. 

[FR Doc. 05–55516 Filed 11–3–05; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 987 

[Docket No. FV05–987–1 FR] 

Domestic Dates Produced or Packed in 

Riverside County, CA; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

California Date Administrative 

Committee (committee) for the 2005–06 

and subsequent crop years from $0.85 to 

$0.95 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. Assessments upon 

date handlers are used by the committee 

to fund reasonable and necessary 

expenses of the program. The committee 

recommended increasing the assessment 

rate because additional revenues are 

needed to fund program operations and 

build up its financial reserve to a more 

satisfactory level. 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 Dates: November 5, 

2005. 

FOR FURTHER INFORMATION CONTACT: Toni 

Sasselli, Program Analyst, or Terry 

Vawter, Marketing Specialist, California 

Marketing Field Office, Fruit and 

Vegetable Programs, AMS, USDA; 

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: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is issued under Marketing 

Agreement 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 final 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 herein would be 

applicable to all assessable dates 

beginning on October 1, 2005, and 

continue until amended, suspended, or 

terminated. This final rule will not 

preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this final 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 2005–06 and subsequent crop years 

from $0.85 to $0.95 per hundredweight 

of assessable dates handled. 

The 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. Therefore, all directly affected 

persons had an opportunity to 

participate and provide input. 

For the 2004–05 and subsequent crop 

years, the committee recommended, and 

USDA approved, an assessment rate that 

will 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 16, 2005, 

and unanimously recommended 2005– 

06 crop year expenditures of $169,197 

and an assessment rate of $0.95 per 

hundredweight of dates handled. In 

67086 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Rules and Regulations 

comparison, last year’s budgeted 

expenditures were $223,000. The 

recommended assessment rate of $0.95 

is $0.10 higher than the rate currently in 

effect. The increase in the assessment 

rate is needed to fund the committee’s 

budget and maintain an acceptable 

operating reserve. 

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 livestockfeeding operation; otherwise, such cull 

dates must be shipped or delivered to 

the committee for sale to non-human 

food product outlets. Pursuant to 

§ 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 2005–06 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 budgeted administrative expenses 

for the 2005–06 crop year include 

$85,697 for labor and office expenses. 

This compares to $90,427 in labor and 

office expenses in 2004–05. In addition, 

$70,000 has been budgeted for 

marketing and promotion under the 

program for the 2005–06 crop year. This 

compares to $112,499 in budgeted 

marketing and promotion expenses for 

the 2004–05 crop year. The committee 

also proposed that $10,000 be included 

in its 2005–2006 budget for an economic 

analysis of its promotion activities. Last 

year’s budget did not include funds for 

this purpose. 

The proposed rule erroneously 

indicated that the committee’s 2005–06 

budget included a line item for a 

contingency reserve. However, the 

$14,303 figure is the committee’s 

estimate of reserve funds that would be 

available at the end of the 2005–06 crop 

year. Additionally, last year’s budget 

included a line item for a contingency 

reserve of $20,074. 

The assessment rate of $0.95 per 

hundredweight of assessable dates was 

derived by applying the following 

formula where: 

A = 2004–05 reserve on 10/1/05 

($1,000). 

B = 2005–06 reserve on 9/30/06 

($14,303). 

C = 2005–06 expenses ($169,197). 

D = Cull Surplus Fund ($2,000). 

E = 2005–06 expected shipments 

(190,000 hundredweight). 

(B ¥ A + C ¥ D) ÷ E = $0.95 per 

hundredweight. 

Estimated shipments should provide 

$180,500 in assessment income. Income 

derived from handler assessments and 

$2,000 from the cull surplus fund will 

be adequate to cover budgeted expenses. 

Funds in the reserve are expected to 

total about $14,303 by September 30, 

2006, and therefore would 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 § 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 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 2005–06 budget and those 

for subsequent crop years would 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 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 $6,000,000. 

An industry profile shows that four of 

the 10 handlers (40 percent) had date 

sales over $6,000,000 and could be 

considered large handlers by the Small 

Business Administration. Six of the 10 

handlers (60 percent) had date sales of 

less than $6,000,000 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 final rule increases the 

assessment rate established for the 

committee and collected from handlers 

for the 2005–06 and subsequent crop 

years from $0.85 to $0.95 per 

hundredweight of assessable dates 

handled. The committee unanimously 

recommended 2005–06 expenditures of 

$169,197 and the $0.95 per 

hundredweight assessment rate at its 

meeting on June 16, 2005. The 

assessment rate of $0.95 is $0.10 higher 

than the rate currently in effect. The 

quantity of assessable dates for the 

2005–06 crop year is estimated at 

190,000 hundredweight. Thus, the $0.95 

per hundredweight rate should provide 

$180,500 in assessment income. This, 

along with approximately $2,000 from 

the surplus account, will be adequate to 

meet the committee’s 2005–06 crop year 

expenses and to augment its financial 

reserve. 

The budgeted administrative expenses 

for the 2005–06 crop year include 

$85,697, for labor and office expenses. 

This compares to $90,427 in labor and 

office expenses in 2004–05. In addition, 

$70,000 has been budgeted for 

marketing and promotion under the 

program for the 2005–06 crop year. This 

compares to $112,499 in budgeted 

marketing and promotion expenses for 

the 2004–05 crop year. The committee 

also proposed that $10,000 be included 

in the budget for an economic analysis 

of its promotion program for the 2005–

06 crop year, as required by USDA. A 

total of $14,303 is estimated to be 

carried over as a financial reserve at the 

end of 2005–06. 

The committee reviewed and 

unanimously recommended 2005–06 

expenditures of $169,197 which include 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Rules and Regulations 67087 

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 build up its operating reserve to a 

satisfactory level ($14,303). The 

assessment rate of $0.95 per 

hundredweight of assessable dates was 

then determined by applying the 

following formula where: 

A = 2004–05 reserve on 10/1/05 

($1,000). 

B = 2005–06 reserve on 9/30/06 

($14,303). 

C = 2005–06 expenses ($169,197). 

D = Cull Surplus Fund ($2,000). 

E = 2005–06 expected shipments 

(190,000 hundredweight). 

(B ¥ A + C ¥ D) ÷ E = $0.95 per 

hundredweight. 

Estimated shipments should provide 

$180,500 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 administrative reserve are 

expected to total about $14,303 by 

September 30, 2006, and therefore 

would 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 

§ 987.72(c)). 

A review of historical information and 

preliminary information pertaining to 

the upcoming crop year indicates that 

the grower price for the 2005–06 season 

could range between $45 and $50 per 

hundredweight of dates. Therefore, the 

estimated assessment revenue for the 

2005–06 crop year as a percentage of 

total grower revenue is approximately 2 

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 will 

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 

16, 2005, meeting was a public meeting 

and all entities 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 September 12, 2005 (70 FR 

53737). Copies of the rule were mailed 

or sent via facsimile to all date handlers. 

Finally, the rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. A 30-day 

comment period ending October 12, 

2005, was provided to allow 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 

this rule until 30 days after publication 

in the Federal Register because: (1) The 

2005–06 crop year began on October 1, 

2005, and the marketing order requires 

that the rate of assessment for each crop 

year apply to all assessable dates 

handled during such crop year; (2) the 

committee needs to have sufficient 

funds to pay its expenses which are 

incurred on a continuous basis; and (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. 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. 

■ 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 

■ 1. The authority citation for 7 CFR 

part 987 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 987.339 is revised to read 

as follows: 

§ 987.339 Assessment rate. 

On and after October 1, 2005, an 

assessment rate of $0.95 per 

hundredweight is established for 

California dates. 

Dated: October 31, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–22046 Filed 11–3–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 236, 239, 241 and 287 

[ICE No. 2298–03] 

RIN 1653–AA27 

Powers and Authority of Officers and 

Employees 

AGENCY: Department of Homeland 

Security. 

ACTION: Final rule. 

SUMMARY: This rule continues the 

process of conforming the text of the 

Code of Federal Regulations to the 

governmental structures established in 

the Homeland Security Act and 

Reorganization Plan. This rule is not 

intended to and does not restrict or 

otherwise limit the authority of any 

Department of Homeland Security 

officer. 

DATES: This final rule is effective 

November 4, 2005. 

FOR FURTHER INFORMATION CONTACT: Jack 

Penca, Chief Counsel, Law Enforcement 

Support Center; 188 Harvest Lane, 

Williston,Vermont 05495; telephone 

number: (802) 872–6056. 

SUPPLEMENTARY INFORMATION: 

Background 

On November 25, 2002, the President 

signed into law the Homeland Security 

Act of 2002 (Pub. L. 107–296, 116 Stat. 

2135) (HSA), 6 U.S.C. 101 et seq., which 

created the new Department of 

Homeland Security (Department or 

DHS). Pursuant to the provisions of the 

HSA, DHS came into existence on 

January 24, 2003. The functions of the