[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Proposed Rules]
[Pages 3315-3318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1179]


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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: [email protected]. 
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: [email protected].


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

    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.

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