[Federal Register Volume 70, Number 44 (Tuesday, March 8, 2005)]
[Rules and Regulations]
[Pages 11117-11120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4448]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: [email protected].

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