FR Doc 05-1179

[Federal Register: January 24, 2005 (Volume 70, Number 14)]
[Proposed Rules]
[Page 3315-3318]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja05-10]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV04-987-1 PR]

Domestic Dates Produced or Packed in Riverside County, CA;
Modification of the Qualification Requirements for Approved
Manufacturers of Date Products

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on modifications to the
requirements to be an approved manufacturer of date products under the
Federal date marketing order (order). The order regulates the handling
of domestic dates produced or packed in Riverside County, California,
and is administered locally by the California Date Administrative
Committee (committee). The committee's approved product manufacturer
program helps assure that higher quality whole and pitted dates are
shipped within the USA and to Canada. This rule would clarify the
application procedures and qualifications for a manufacturer to
continue to be listed as an approved manufacturer of date products.
This proposal would also require an applicant who is also a date
handler under the order to be in compliance with the order. These
modifications would help safeguard the integrity of the approved date
product manufacturer program under the order and the quality of whole
and pitted dates that are shipped within the USA and Canada.

DATES: Comments must be received by February 3, 2005.

ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. 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 E-mail: moab.docketclerk@usda.gov.
All comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street,
suite 102B, Fresno, California 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 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 proposal is issued under Marketing

[[Page 3316]]

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 proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal 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. A
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.

Summary

This proposal invites comments on changes to the requirements to be
an approved manufacturer of date products in Sec. 987.157 of the date
administrative rules and regulations. This rule would clarify the
application procedures and qualifications for a manufacturer to
continue to be listed as an approved manufacturer of date products.
This proposal would also require an applicant who is a date handler
under the order to be in compliance with the order. These changes would
help safeguard the integrity of the approved manufacturer program under
the order and the quality of whole and pitted dates that are shipped
within the United States and to Canada. This proposed rule was
recommended unanimously by the committee in a meeting on April 23,
2004.

Order Authority for Approved Manufacturers

Section 987.57 of the date order provides authority for
qualification requirements to be an approved manufacturer of date
products. Section 987.57 states in part: ``Diversion of dates pursuant
to Sec. 987.55 or Sec. 987.56 shall be accomplished only by such
persons (which may include handlers) as are approved manufacturers or
feeders * * *. The application and approval shall be in accordance with
such rules, regulations and safeguards as may be prescribed pursuant to
Sec. 987.59.'' Section 987.59 states: ``The Committee may prescribe,
with the approval of the Secretary, such rules, regulations and
safeguards as are necessary to prevent dates covered by Sec. Sec.
987.55 and 987.56 from interfering with the objectives of this part.''
Pursuant to the authority in Sec. Sec. 987.57 and 987.59 of the
order, Sec. 987.157 of the order's administrative rules and
regulations prescribes the qualification requirements to become an
approved manufacturer of date products.

Background and Action Taken

At its public meeting on April 23, 2004, the committee unanimously
recommended modifying the qualification requirements for approved
manufacturers of date products. The committee's approved product
manufacturer program helps assure that higher quality whole and pitted
dates are shipped within the United States and to Canada. Whole and
pitted dates shipped within the United States and to Canada must, at
least, meet the requirements of U.S. Grade B. Dates used for date
products are permitted to be U.S. Grade C, a lower quality.
Only firms on the committee's list of approved date product
manufacturers are allowed to receive dates for conversion into
products. These entities, among other things, agree to alter the form
and appearance of the lower quality dates so the dates cannot be
marketed in competition with higher quality whole and pitted dates in
the United States and to Canada.
The committee recommended that the application procedures for an
entity to qualify to become, and to continue to be, an approved
manufacturer of date products be revised to help assure that each
applicant is treated similarly and to ensure that an approved product
manufacturer remains qualified to receive dates for conversion into
products.
Within the regulated area (Riverside County, California), all
approved manufacturers are also date handlers regulated under the
order. Outside the regulated area, the approved manufacturers are not
regulated date handlers.
Finally, the committee wants to safeguard the integrity of the
approved manufacturer program by requiring handlers regulated under the
order, who are applying to be approved date product manufacturers, to
be in compliance with the requirements of the order, including the
payment of assessments and filing required reports. Once approved,
handlers would have to continue to be in compliance with the order to
remain on the committee's approved date product manufacturers' list.
Prior to revoking a handler's approved manufacturer status for non-
compliance with the requirements of the order, including reporting and
assessment payment requirements, the committee staff would consult with
USDA. If, after consultation with USDA and appropriate communications,
the approved product manufacturer continues to be non-compliant with
the order requirements, the committee staff would announce the
revocation of such handler's approved manufacturer status by mailing or
faxing a revised approved manufacturer list to all date handlers in the
regulated area. Initial applicants who are handlers under the order
would also have to be in compliance with the order and meet the other
qualification requirements to become an approved date product
manufacturer.
Further, the approved manufacturers would continue to be required
to maintain accurate date product information and provide this to the
committee staff to enable the committee to update each approved date
product manufacturer's status periodically. To ensure that each
approved manufacturer is qualified, the approved date product
manufacturers would be required to reapply for approved manufacturer
status once a year. The procedures for reapplication would be the same
as to become a new approved date product manufacturer.

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 action 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

[[Page 3317]]

Act, and 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.

Industry Profile

There are approximately 124 date producers in the regulated area
and approximately 10 handlers of California dates subject to regulation
under the marketing order. The Small Business Administration (13 CFR
121.201) defines small agricultural service firms as those having
annual receipts of less than $5,000,000, and defines small agricultural
producers as those having annual receipts of less than $750,000.
An industry profile shows that 4 out of 10 handlers (40 percent)
shipped over $5,000,000 worth of California dates and could be
considered large handlers by the Small Business Administration. Six of
the 10 handlers (60 percent) shipped under $5,000,000 worth of
California dates 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 majority of handlers and producers of California dates
may, thus, be classified as small entities.
Within the regulated area (Riverside County, California), all
approved manufacturers are also date handlers regulated under the
order. Outside the regulated area, the approved manufacturers are not
regulated date handlers. Currently, there are three approved
manufacturers outside the regulated area. We do not have information on
the size of these entities, but believe most of them are small
entities.

Summary of Rule Change

Impact of Regulation

At the meeting, the committee discussed the impact of this change
on handlers and approved manufacturers. The proposed rule would clarify
the application procedures and qualifications for a product
manufacturer to be an approved manufacturer of date products under the
order. These changes will help assure that each applicant to be an
approved date manufacturer is treated equitably. These changes would
also clarify the qualifications each applicant must meet to become, and
to continue as, an approved manufacturer.
In addition, the committee wants to safeguard the integrity of the
approved manufacturer program by requiring a handler under the order
who is applying for an approved date product manufacturer status to be
in compliance with the order. The benefits of this rule are not
expected to be disproportionately greater or less for small handlers or
approved manufacturers than for large entities.

Alternatives Considered

The committee discussed alternatives to this change, including not
making a change to requirements to become an approved date product
manufacturer. The committee decided that this would likely lessen the
effectiveness of safeguards ensuring the quality of whole and pitted
dates that are shipped within the United States and to Canada.
A second alternative would be to require an applicant to pay all
the costs for repeated inspections to verify that the applicant can,
indeed, meet the requirements of an approved manufacturer. There was
some discussion about whether the committee should continue to pay for
the committee staff's time for verification inspections beyond the
initial visit. However, there is no authority to charge applicants for
verification inspections under this program.

Recordkeeping and Reporting Requirements

This proposed rule would clarify the application procedures and
qualification requirements to become or maintain an approved
manufacturer status of date products under the date marketing order.
Accordingly, this action would not impose any additional reporting or
recordkeeping requirements on either small or large date handlers. This
information collection burden has been approved by the Office of
Management and Budget (OMB) under OMB No. 0581-0178. This is the
Vegetable and Specialty Crop Generic information collection package. 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 proposed rule.
In addition, the committee's meeting was widely publicized
throughout the 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 April 23, 2004 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 information on the regulatory and informational impacts of this
action on small businesses.
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.
A 10-day comment period is provided to allow interested persons to
respond to this proposal. Ten days is deemed appropriate because date
handlers are now handling 2004 new crop dates and any changes resulting
from this proposed rule should be in place as soon as possible. All
written comments timely received will be considered before a final
determination is made on this matter.

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
proposed to be 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 987.157 is revised to read as follows:

Sec. 987.157 Approved date product manufacturers.

Any person, including date handlers, with facilities for converting
dates into products may apply to the Committee,

[[Page 3318]]

by filing CDAC Form No. 3, for listing as an approved date product
manufacturer.
(a) The applicant shall indicate on such form: the products he/she
intends to make; the quantity of dates he/she may use; the location of
his/her facilities; and agree that all dates obtained for manufacturing
into products shall be used for that purpose, none shall be resold or
disposed of as whole or pitted dates.
(b) As a condition to become an approved date product manufacturer:
each applicant is subject to an inspection of his/her manufacturing
plant to verify that proper equipment to convert dates into products is
in place and that the plant meets appropriate sanitation requirements;
the applicant also shall agree to file a report of the disposition of
each lot of dates on the Committee's CDAC Form No. 8 within 24 hours of
the transaction, and to file an annual usage and inventory report on
CDAC Form No. 4 by October 10 of each year; and an applicant who is
also a handler under the order shall be in compliance with the order,
including the assessment payment and reporting requirements.
(c) The Committee shall approve each such application on the basis
of information furnished or its own investigation, and may revoke any
approval for cause. The name and address of all approved manufacturers
shall be placed on a list and made available to each date handler in
Riverside County.
(d) If an application is disapproved, the Committee shall notify
the applicant in writing of the reasons for disapproval, and allow the
applicant an opportunity to respond to the disapproval. When the
applicant has complied with all the qualification requirements to
become an approved manufacturer, the Committee shall notify the
applicant in writing of the Committee's approval. The applicant's name
shall be added to the list of approved manufacturers, which shall be
made available to each date handler in Riverside County.
(e) Each approved manufacturer of date products are required to
renew their approved manufacturer status with the Committee by
submitting an updated CDAC Form No. 3 at the end of a crop year, but no
later than October 10 of the new crop year. In addition, the approved
manufacturer must continue to meet the other approved manufacturer
qualification requirements.
(f) In the event an approved date product manufacturer does not
remain in compliance with the order, or fails or refuses to submit
reports or to pay assessments required by the Committee, such date
product manufacturer shall become ineligible to continue as an approved
date product manufacturer. Prior to making a determination to remove a
date product manufacturer from the approved date product manufacturer
list, the Committee shall notify such manufacturer in writing of its
intention and the reasons for removal. The Committee shall allow the
date product manufacturer an opportunity to respond. In the event that
a date product manufacturer's name has been removed from the list of
approved date product manufacturers, a new application must be
submitted to the Committee and the applicant must await approval.

Dated: January 13, 2005.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-1179 Filed 1-21-05; 8:45 am]

BILLING CODE 3410-02-P