[Federal Register: March 8, 2005 (Volume 70, Number 44)]
[Rules and Regulations]
[Page 11117-11120]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr05-4]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV04-987-1 FR]


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: Final rule.

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SUMMARY: This rule modifies the requirements for approved manufacturers
of date products under the marketing order regulating the handling of
domestic dates produced or packed in Riverside County, California. The
marketing order is administered locally by the California Date
Administrative Committee (committee). The committee's approved product
manufacturer program helps assure that only high quality whole and
pitted dates are shipped within the United States and exported to
Canada. This rule clarifies the application procedures and
qualification requirements for an approved manufacturer of date
products. This rule also specifies that a regulated date handler must
be in compliance with the marketing order to be an approved
manufacturer of date products. These modifications will help safeguard
the integrity of the approved date product manufacturer program, as
well as the quality of whole and pitted dates marketed both
domestically and in Canada.

EFFECTIVE DATE: This final rule becomes effective March 9, 2005.

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 final rule is issued under Marketing
Agreement and Order No. 987, 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 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 Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. 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. 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 of the Rule Change

    This final rule modifies the requirements for approved
manufacturers of date products in Sec.  987.157 of the order's
administrative rules and regulations. This rule clarifies the
application procedures and qualification requirements for approved
manufacturers of date products. This rule also specifies that, to be an
approved manufacturer of date products, a regulated date handler must
be in compliance with the order. These modifications will help
safeguard the integrity of the approved date product manufacturer
program, as well as the quality of whole and pitted dates marketed both
domestically and in

[[Page 11118]]

Canada. These changes were recommended unanimously by the committee at
a meeting on April 23, 2004.

Authority for Approved Manufacturers

    Section 987.57 of the order provides the authority for the approved
date product manufacturer program. 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.'' Further, Sec.  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.''
    Finally, Sec.  987.157 of the order's administrative rules and
regulations prescribes the application procedure and qualification
requirements to become an approved manufacturer of date products.

Background Information and Committee Action Taken

    At its public meeting on April 23, 2004, the committee unanimously
recommended modifying the application procedures and qualification
requirements for approved manufacturers of date products. The
committee's approved date product manufacturer program helps assure
that high quality whole and pitted dates are marketed in the United
States and Canada. Whole and pitted dates shipped within the United
States and to Canada must at least meet the requirements of U.S. Grade
B, whereas dates for manufacture into products must meet the lower
quality requirements of U.S. Grade C.
    Only firms on the committee's list of approved date product
manufacturers are allowed to receive dates for conversion into date
products. These entities agree to alter the form and appearance of the
lower quality dates so they cannot be marketed in competition with
higher quality whole and pitted dates in the United States and Canada.
    Based on the committee's recommendation, the procedures used to
qualify an applicant as an approved manufacturer of date products have
been revised in this final rule to help ensure that each applicant is
treated similarly, and that an approved date product manufacturer
remains qualified to receive dates for conversion into products.
    Within the regulated production area (Riverside County,
California), all approved manufacturers are also date handlers
regulated under the order. Conversely, approved manufacturers outside
the regulated area are not regulated date handlers.
    This rule also helps safeguard the integrity of the approved
manufacturer program by requiring that regulated handlers be in
compliance with the order--including the assessment and reporting
requirements of the order--for approval as date product manufacturers.
Once approved as a date product manufacturer, handlers must stay in
compliance with the requirements of the order to remain on the
committee's approved date product manufacturers' list.
    Prior to revoking a handler's approved manufacturer status for
noncompliance with the requirements of the order, the committee staff
will consult with USDA. If, after consultation with USDA and
notification of the handler, the approved product manufacturer
continues to be in noncompliance with order requirements, the committee
staff will 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.
    Further, the approved manufacturers will be required to maintain
accurate records regarding date product information and provide these
records to the committee staff. This will enable the committee to
verify that each approved date product manufacturer is operating as
required. To ensure that approved manufacturers continue to be
qualified, each will be required to reapply for approved manufacturer
status once a year. The procedures for reapplication are the same as
the procedures used for initial approval as a date product
manufacturer.

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 action 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 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 production area
and 10 handlers subject to regulation under the order. The Small
Business Administration (SBA) (13 CFR 121.201) defines small
agricultural producers as those with annual receipts of less than
$750,000, and small agricultural service firms as those with annual
receipts of less than $5,000,000.
    The committee estimates approximately 7 producers (approximately 6
percent) had receipts over $750,000 and that 4 handlers (40 percent)
shipped over $5,000,000 worth of California dates. Based on this
information, a majority of handlers and producers of California dates
may be classified as small entities.
    Within the regulated production area all approved manufacturers are
also date handlers regulated under the order. Conversely, approved
manufacturers outside the regulated area are not regulated date
handlers. Currently, there are three approved manufacturers outside the
regulated area. We do not have information on their size, but believe
most of them are small entities.

Summary of Rule Change

    This final rule modifies the requirements for approved date product
manufactures under Sec.  987.157 of the order's administrative rules
and regulations. This rule clarifies both the application procedures
and qualification requirements for approval as a manufacturer of date
products. This final rule also requires an applicant who is a date
handler regulated under the order to be in compliance with the order to
continue to manufacture date products. These changes help safeguard the
integrity of the approved manufacturer program and help assure the
quality of whole and pitted dates marketed in the United States and
Canada. These changes were recommended unanimously by the committee at
a meeting on April 23, 2004.

Impact of Regulation

    At the meeting, the committee discussed the impact of this change
on handlers and approved manufacturers. By clarifying the date product
manufacturer application procedure and qualification requirements, the
modifications help ensure that applicants are treated similarly. In
addition, the committee believes the modifications will help safeguard
the

[[Page 11119]]

integrity of the approved manufacturer program by requiring that
participating handlers are in compliance with the order. As such, the
committee believes that the impact of this rule on handlers and date
product manufactures will be negligible and greatly outweighed by the
improvement in the overall integrity and efficiency of the program.
    Furthermore, the benefits of this rule are not expected to be
disproportionately greater or less for small entities than for large
entities.

Alternatives Considered

    The committee discussed alternatives to these changes, including
not making any changes to the requirements to become an approved date
product manufacturer. The committee, however, decided that lack of
action on its part could negatively impact the effectiveness of the
safeguards that help ensure the quality of whole and pitted dates
marketed in the United States and Canada.
    A second alternative debated by the committee would have required
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. There is no authority to charge
applicants for verification inspections under this program, thus this
alternative was deemed unacceptable.

Recordkeeping and Reporting Requirements

    These changes 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 final
rule does not impose any additional reporting or recordkeeping
requirements on small or large California date handlers. This
information collection burden has been approved by the Office of
Management and Budget (OMB) under OMB No. 0581-0178. 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.
    As noted in the initial regulatory flexibility analysis, USDA has
not identified any relevant Federal rules that duplicate, overlap, or
conflict with this final rule.
    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 April 23,
2004, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
    A proposed rule concerning this action was published in the Federal
Register on January 24, 2005 (70 FR 3315). Copies of the rule were
provided to all committee members and date handlers. The rule was also
made available through the Internet by USDA and the Office of the
Federal Register. A 15-day comment period ending on February 3, 2005,
was provided to allow interested persons to responds to the proposal.
No comments were received.
    Accordingly, no changes will be made to the rule as proposed.
    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 matter 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.
    It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553). Handlers are already shipping dates
from the 2004-2005 crop. This action clarifies the application
procedures and qualification requirements for approved manufacturers of
date products. Further, handlers and approved manufacturers are aware
of this rule, which was recommended at a public meeting. Also, a 15-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 987.157 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, 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 such approval. The applicant's name shall be
added to the list of approved manufacturers, which shall be made

[[Page 11120]]

available to each date handler in Riverside County.
    (e) Each approved manufacturer of date products is 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 who is also
a regulated date handler within the area of production 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: March 2, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-4448 Filed 3-7-05; 8:45 am]

BILLING CODE 3410-02-P