[Federal Register: July 21, 2008 (Volume 73, Number 140)]
[Rules and Regulations]
[Page 42257-42259]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy08-1]
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Rules and Regulations
Federal Register
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[[Page 42257]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 989
[Docket No. AMS-FV-07-0117; FV07-989-4 FR]
Raisins Produced From Grapes Grown In California; Revisions to
Requirements Regarding Off-Grade Raisins
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule revises requirements regarding off-grade raisins
under the Federal marketing order for California raisins (order). The
order regulates the handling of raisins produced from grapes grown in
California and is administered locally by the Raisin Administrative
Committee (Committee). This rule revises the requirement that
notification handlers must provide to the inspection service and the
Committee when they perform certain functions on off-grade raisins be
in writing, thereby allowing them to use other means of communication,
including e-mail. This rule also removes the requirement that handlers
submit reports to the Committee regarding transfers of off-grade and
other failing raisins. This action brings the order's administrative
rules and regulations in line with current industry practices.
EFFECTIVE DATE: August 20, 2008.
FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist,
or Kurt J. Kimmel, Regional Manager, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail:
Rose.Aguayo@usda.gov or Kurt.Kimmel@usda.gov.
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. 989 (7 CFR part 989), both as amended,
regulating the handling of raisins produced from grapes grown in
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 final 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.
This final rule revises requirements regarding off-grade raisins
under the order. This rule revises the requirement that notification
handlers must provide to the Processed Products Branch, Fruit and
Vegetable Programs, Agricultural Marketing Service (AMS), USDA
(hereinafter referred to as the inspection service) and the Committee
when they perform certain functions on off-grade raisins be in writing,
thereby allowing them to use other means of communication, including e-
mail. This rule also removes the requirement that handlers submit
reports to the Committee regarding transfers of off-grade and other
failing raisins. This action brings the order's administrative rules
and regulations in line with current industry practices and was
unanimously recommended by the Committee at a meeting on July 11, 2007.
The order provides authority for quality control whereby handlers
must have their raisins inspected upon receipt from producers and prior
to shipment. Handlers may receive raisins that do not meet minimum
standards. Section 989.24(b) specifies that off-grade raisins are
raisins which do not meet the then effective minimum grade and
condition standards for natural condition raisins (or raisins that have
not been processed). Off-grade raisins that cannot be successfully
reconditioned to meet the applicable minimum grade standards for
processed raisins become other failing raisins.
Section 989.58(e) provides requirements for off-grade raisins.
Paragraph (1) of that section specifies that off-grade raisins may be
received or acquired by the handler, without further inspection, in
eligible non-normal outlets (such as animal feed); be returned
unstemmed to the person tendering the raisins (usually the producer);
or be received by the handler for reconditioning. Off-grade raisins
received by handlers under any one of these three categories may be
changed to any of the other categories under such rules and procedures
recommended by the Committee and approved by the Secretary of
Agriculture (Secretary). Paragraph (2) of that section specifies that
off-grade raisins may be transferred from a receiving handler's plant
to another plant of his/hers or to that of another handler within the
State of California.
Section 989.158(c) specifies rules and procedures for off-grade
raisins. Paragraph (2) of that section requires that handlers notify
the inspection service in writing prior to making any changes in off-
grade raisin categories as described above. Paragraph (3) of that
[[Page 42258]]
section requires handlers to notify the inspection service in advance
and in writing on a form provided by the Committee, of the time they
plan to transfer lots of off-grade raisins for reconditioning. They
must also provide the Committee this form. Paragraph (4) of that
section specifies that handlers must notify the inspection service in
writing prior to reconditioning off-grade raisins. Paragraph (6) of
that section requires handlers to notify the inspection service in
writing before transferring stemmed raisins to another handler for
reconditioning, and to obtain from the receiving handler a statement
that he or she will receive such raisins for reconditioning. Copies of
the inspection notification and receiving handler statement must be
forwarded by the transferring handler to the Committee.
Section 989.73(d) of the order provides authority for the
Committee, with approval of the Secretary, to request other information
from handlers that may be necessary for the Committee to perform its
duties. Section 989.173(d)(2) specifies that handlers must report to
the Committee information regarding transfers of off-grade raisins and
other failing raisins, including the date of the transfer, the name and
address of the receiving handler and location of his or her plant, the
name and address of the tenderer of each lot included in the transfer
and the inspection certificate numbers applicable to the lot, and the
varietal type, net weight, and condition of the raisins.
In the early 1990s, the inspection service began computerizing much
of the information regarding raisin inspections, including data
regarding off-grade raisins. These computerized data are shared with
Committee staff. The inspection service generates reports from this
database as needed and provides the information to handlers. Handlers
now notify the inspection service verbally or by other means of
communication, including e-mail, before they change off-grade raisin
categories, transfer off-grade raisins for reconditioning, recondition
off-grade raisins, or transfer off-grade raisins that have been stemmed
to another handler for reconditioning. Thus, it is no longer necessary
for handlers to provide such notification in writing, too.
Likewise, it is not necessary for handlers to submit reports to the
Committee on transfers of off-grade or other failing raisins. As stated
above, the computerized data regarding off-grade raisins generated by
the inspection service are shared with Committee staff. Additionally,
handlers submit other weekly and monthly reports to the Committee
regarding off-grade and other failing raisins that allows Committee
staff to track such raisins. These include the RAC-28, Processor's
Report of Acquisition of Off-Grade Raisins; RAC-28A, Processor's Report
of Disposition of Off-Grade Raisins and Raisin Residual Material; the
RAC-30, Weekly Off-Grade Summary; the RAC-32, Monthly Report of
Dispositions of Off-Grade Raisins, Other Failing Raisins and Raisin
Residual Material; the RAC-33, Weekly Report of Disposition of Standard
Raisins Recovered from Reconditioning of Off-Grade Raisins; and the
RAC-51 CO, Inventory of Off-Grade Raisins on Hand (for organically
produced raisins). These forms will continue to be used and are
currently approved by the Office of Management and Budget (OMB) under
OMB No. 0581-0178, Vegetable and Specialty Crops.
Thus, the Committee recommended revising the order's administrative
rules and regulations to remove these requirements and reflect current
industry practices. Accordingly, this rule would revise paragraphs (2),
(3), (4)(i), and (6)(ii) in Sec. 989.158(c) and remove paragraph
(d)(2) in Sec. 989.173.
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.
There are approximately 21 handlers of California raisins who are
subject to regulation under the order and approximately 3,000 raisin
producers in the regulated area. Small agricultural service firms have
been defined by the Small Business Administration (13 CFR 121.201) as
those having annual receipts of less than $6,500,000, and small
agricultural producers are defined as those having annual receipts of
less than $750,000. No more than 10 handlers, and a majority of
producers, of California raisins may be classified as small entities.
This final rule revises Sec. 989.158(c) regarding the requirement
that notification handlers must provide to the inspection service and
the Committee when they perform certain functions on off-grade raisins
be in writing, therefore, allowing them to use other means of
communication, including e-mail. Handlers now provide such notification
verbally or by other means of communication; written notification is no
longer necessary. This rule also revises Sec. 989.173(d) by removing
the requirement that handlers must submit reports to the Committee on
transfers of off-grade and other failing raisins. Handlers submit other
weekly and monthly reports to the Committee regarding off-grade and
other failing raisins that allows Committee staff to track such
raisins. These changes bring the order's administrative rules and
regulations in line with current industry practices. Authority for
these changes is provided in Sec. Sec. 989.58(e) and 989.73(d) of the
order, respectively.
Regarding the impact of this action on producers and handlers,
these changes will not impact producers, and will remove requirements
on handlers that are not necessary. It brings the administrative rules
and regulations in line with current industry practices.
As an alternative, the Committee considered maintaining the status
quo. However, this is not practical since the requirements are no
longer necessary. Handlers now notify the inspection service and the
Committee verbally or by other means of communication before they
perform certain functions on off-grade raisins. Additionally, handlers
submit other weekly and monthly reports to the Committee regarding off-
grade and other failing raisins that allows Committee staff to track
such raisins. Thus, the Committee recommended revising the regulations
to bring them in line with current industry practices.
This action revises reporting and recordkeeping requirements
specified in the order's administrative rules and regulations for all
California raisin handlers. These requirements were approved under OMB
No. 0581-0178, Vegetable and Specialty Crops. No change to this
approval is warranted as a result of this action. This action brings
the regulations in line with current industry practices. Data regarding
off-grade raisins have been computerized since the early 1990s. It is
no longer necessary for handlers to advise the inspection service nor
the Committee in writing when they perform certain functions regarding
off-grade raisins. Handlers provide such notification verbally or by
other means of communication, including e-mail. The time it takes to
provide such
[[Page 42259]]
information is minimal. Likewise, it is no longer necessary for
handlers to submit reports to the Committee regarding transfers of off-
grade for reconditioning or other failing raisins. Handlers submit
other weekly and monthly reports to the Committee regarding off-grade
and other failing raisins that allows Committee staff to track such
raisins. 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.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
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 July 11, 2007, meeting and the
Administrative Issues Subcommittee meeting held earlier that day were
widely publicized throughout the raisin industry. All interested
persons were invited to attend the meetings and participate in
Committee deliberations on all issues. Like all Committee meetings,
both were public meetings 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 April 22, 2008 (72 FR 21551). Copies of the rule were
mailed or sent via facsimile to all Committee members and raisin
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 May 22, 2008, 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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 matters 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.
List of Subjects in 7 CFR Part 989
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 989 is amended as
follows:
PART 989--RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 989 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 989.158 is amended as follows:
0
a. In paragraph (c)(2), the second sentence is revised, and a new
sentence is added after it;
0
b. In paragraph (c)(3), the fourth sentence is revised, and a new
sentence is added after it;
0
c. In paragraph (c)(4)(i), the first sentence is revised, and a new
sentence is added after it; and
0
d. Paragraph (c)(6)(ii) is revised.
The revised and added text reads as follows:
Sec. 989.158 Natural condition raisins.
* * * * *
(c) * * *
(2) * * * Prior to making such change, the handler shall notify the
inspection service at least one business day in advance of the time
such handler plans to begin such change. Such notification shall be
provided verbally or by other means of communication, including e-mail.
* * *
(3) * * * The handler shall notify the inspection service in
advance of the time such handler plans to transfer each lot. Such
notification shall be provided verbally or by other means of
communication, including e-mail. * * *
(4) * * *
(i) The handler shall notify the inspection service at least one
business day in advance of the time such handler plans to begin
reconditioning each lot of raisins, unless a shorter period is
acceptable to the inspection service. Such notification shall be
provided verbally or by other means of communication, including e-mail.
* * *
* * * * *
(6) * * *
(ii) Any packer may arrange for or permit the tenderer to remove
the stemmed raisins (described in paragraph (c)(6)(i) of this section),
but not the residual, directly to the premises, within California, of
another packer for further reconditioning of the raisins at the
latter's premises. Such removal and transfer shall be made under the
surveillance of the inspection service. The packer shall notify the
inspection service as required in paragraph (c)(3) of this section.
Such raisins may be received by the other packer without inspection. On
and after such receipt of the raisins for further reconditioning, all
applicable provisions of this part shall apply with respect to such
raisins and the packer so receiving them.
* * * * *
Sec. 989.173 [Amended]
0
3. In Sec. 989.173, paragraph (d)(2) is removed and reserved.
Dated: July 16, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-16605 Filed 7-18-08; 8:45 am]
BILLING CODE 3410-02-P