COOL Comment: Government of Australia

From the federal docket on COOL, a comment from the Government of Australia. I'm picking up his comment when he starts discussion horticultural products. One of the points: "states" and "regions" of importing countries should be allowable...





Labelling perishable agricultural commodities (horticultural produce)
The interim final rule allows for a bulk container at retail level that contains co-mingled products to be labelled with the country or countries of origin. The rule is silent on whether the individual pieces contained in bins must also be labelled, which would be difficult (broccoli, lettuce, etc). Australia seeks confirmation that, for commingled produce sold in bins or trays, individual pieces of produce do not need to be labelled provided their origins are displayed on appropriate signage by the retailer. It would be useful if this could be articulated more effectively in the final rule. The interim final rule is also silent on how the country of origin of products contained in bins would be verified. Australia understands that enforcement is expected to be done by State agencies, which will check retailers’ records with the labelling displayed in store. This audit process will be important to ensure the integrity of this aspect of MCOOL and it would be useful to clarify this in the final rule as part of the expected compliance process.
Perishable agricultural commodities - state, regional and local labels. The interim final rule provides that it is acceptable for perishable agricultural commodities,
including macadamia nuts, peanuts, pecans and ginseng to have state, regional or locality labels in lieu of country of origin labelling. Australia seeks confirmation such provisions on state markings in the interim final rule apply also to states, regional and local labels of importing countries. Australia understands that identification by region and locality is acceptable provided it is nationally distinct. Australia requests this provision be clarified in the final rule. The interim final rule does not clarify if there are any other US Federal labelling laws that would over-ride such labelling. The rule refers to CBP marking regulations under 19 CFR part 134 in respect to country of origin labelling of covered imported commodities that have not been transformed in the US that are co-mingled with other imported or US products and must be labelled with all countries of origin, but provides no view on the precedence of these regulations. Australia considers this should be clarified in the final rule.
Recordkeeping
Australia acknowledges the changes to recordkeeping requirements made under the 2008 Farm Bill that permit records maintained in the normal conduct of business to serve as MCOOL verification, as well as the relaxation of issues such as the period for which records must be maintained and the time by which those records must be produced on request by USDA. We regard these as positive steps that help to minimise the imposition on businesses while providing the information of product origin expected by consumers. The Australian Government requests that the Agricultural Marketing Service incorporate these changes on record keeping in the formulation of the mandatory country of origin arrangements in
the final rule.
Australian Country of Origin Labelling (CoOL)
Finally we wish to draw attention to Australia’s implementation of its own country of origin
labelling on a range of fresh and processed unpackaged foods and most packaged foods. Australia recognises the underlying benefits of consumer information and the ability of consumers to make informed choices on their selection of foods. The Australian CoOL standard has been developed to provide consumers with clear and unambiguous information on the origin of food available for retail sale, and not be unnecessarily trade restrictive in meeting this objective. By December 2007 Australia and New Zealand had fully implemented requirements for CoOL. Part 1.2 of the Australia New Zealand Food Standards Code (Labelling and other Information Requirements) sets out the application of general labelling and other information requirements. Under Standard 1.2.11 of the Australia New Zealand Food Standards Code (also included in state and territory legislation) country of origin labelling is mandated for all packaged food and unpackaged fresh or processed fruit, vegetables, seafood and pork. However, this standard does not apply to unpackaged food sold to the public by restaurants, canteens, schools, caterers or selfcatering institutions, where the food is offered for immediate consumption. The details of the Australian CoOL are provided at: http://www.foodstandards.gov.au/thecode/foodstandardscode.cfm The Australian Government is currently examining options to simplify food labelling laws and, in
particular, clarify CoOL. Please do not hesitate to contact me if you require any further information.



Yours sincerely
Dean Merrilees
Minister Counsellor (Agriculture)
Embassy of Australia

United Fresh: Comment on COOL

From the federal docket on COOL, the comment posted today by United Fresh Produce Association and Tom Stenzel. United insists here that USDA create no additional record keeping requirements.


September 30, 2008
Country of Origin Labeling Program
Room 2067-S; Agricultural Marketing Service
U.S. Department of Agriculture; Stop 0254
1400 Independence Avenue, SW
Washington, DC 20250-0249

RE: Docket No. AMS-LS-07-0081 Mandatory Country of Origin Labeling of Beef, Pork,
Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng,
and Macadamia Nuts: Interim Final Rule: 73 Fed. Reg. 45106 (August 1, 2008)


The United Fresh Produce Association (United Fresh) is pleased to submit comments eegarding USDA’s Interim Final Rule implementing mandatory country of origin labeling for perishable agricultural commodities published on August 1, 2008. United Fresh is the pre-eminent trade association for the produce industry in managing critical public policy issues; shaping legislative and regulatory action; providing scientific and technical leadership in food safety, quality assurance, nutrition and health; and developing educational programs and business opportunities for members to better meet consumer needs for increased consumption of fresh produce. Founded in 1904, United Fresh represents the interests of member companies from small family businesses to the largest international corporations throughout the global fresh produce supply chain, including growers, shippers, fresh-cut processors, wholesalers, distributors, retailers, foodservice operators, industry suppliers and allied associations. While the interim rule deals with a multitude of commodities we submit comments specifically on the perishable agricultural commodity provisions of this Interim Final Rule (IFR). In particular, we will focus our comments and recommendations on the aspects of this IFR related to fresh produce and the impact it will have on our members and our ability to deliver the highest quality produce at the lowest cost to consumers. In developing these comments on USDA’s implementation of country of origin regulations, we have listened carefully to a diverse range of opinion through open industry forums including online webinars and in-person workshops in San Jose, CA; Chicago, IL; Baltimore, MD; and Washington, DC. since the publication of the IFR in August. This has allowed us to discuss and review comments from hundreds of industry members throughout the produce distribution chain. We also appreciate USDA participating in these forums and look forward to their additional outreach and education sessions. With this background we are pleased to provide the following comments on specific aspects
of the IFR:
1. Amendments in the 2008 Farm Bill
Since legislation mandating COOL became law with the 2002 Farm Bill, United Fresh has worked intently with USDA and congressional leaders to see that regulations developed to implement the law were fair, practical and cost-effective for the produce industry and consumers. Although we had serious concerns about some specific requirements of the 2002 statute, we have worked with congressional leaders to modify the statute to achieve the goals of COOL without adding additional costs and inefficiencies such that the ends would not justify the means. Many unworkable elements of the initial 2002 statute were amended in the 2008 Farm Bill legislation which became law on June 18, 2008 (P.L. 110-246). As a general comment, we encourage USDA and its Office of General Counsel to ensure that the clear congressional intent of these amendments is fully implemented in the final rule with no mbiguity. Specifically, we ask USDA to clearly address the following issues:
• The potential liability for retail mistakes or absence of labeling at point of purchase has been significantly reduced. After finding a retailer to be “in violation,” USDA must give the retailer 30 days to “comply” with the Act. At the end of 30 days, USDA cannot fine a retailer unless that retailer has “not made a good faith effort” and “continues to willfully violate the Act.” The final rule must be crystal clear in implementing congressional intent to provide this safe harbor in compliance.
• Similarly, suppliers who do not provide country of origin information to the retailer, as required in the Act, are held to the same terms as above – 30 days to come into compliance, with potential fines imposed only if they do not “make a good faith effort” or “continue to willfully violate the Act” by not providing country of origin information to retailers.
• USDA is also barred from requiring any new record-keeping other than normal records kept in the regular course of doing business. We have serious concerns that USDA’s interpretation of records needed to verify compliance with COOL has moved beyond this statutory directive. We believe congressional intent was clear that NO new records would be required, and USDA must not reinterpret that clear mandate from Congress.
2. Definition of Food Service Establishment (§65.140) In general, we support the definition of food service establishment to establish that many facilities and product offerings within a retail establishment otherwise covered under the Act would be exempt from labeling requirements. With regard to produce, these would of course include salad bars, but should also include fresh fruits and vegetables offered in any ready-to-eat display designed for take-out, regardless of location within the store.
3. Definition of Processed Food Item (§65.220) Processed food items, as defined by this regulation, are exempt from complying with this IFR. In particular, products that have undergone physical or chemical change and have a character that is different from that of a covered commodity are considered exempt from the IFR. For produce, this would include chocolate covered strawberries, a fruit smoothie or fruit yogurt, or dried apricots, for example. In addition, a retail item that is derived from a covered commodity that is combined with other covered commodities or has other substantive food components would be exempt from COOL. For example, a salad mix that contains lettuce and carrots or a salad mix that contains dressing would be exempt. A fresh-cut cantaloupe would not be exempt but a watermelon, strawberry, grape and cantaloupe fresh-cut mix would be exempt. In particular we support USDA’s further interpretation of the law that “other covered produce items” are defined by utilizing the current U.S. Grade Standards for fruits and vegetables to make distinctions between commodities. This provides a well-established regulatory framework to define which products will and will not be required to carry COO labeling. It is paramount that USDA leave as little room as possible for differing interpretation of this provision. We understand that some have criticized USDA for a purported “exemption from COOL” for commingled covered commodities. We believe this is a misunderstanding, as in fact, imported products are not exempted from existing law requiring COOL. The preamble to the IFR clearly states: In the case of perishable agricultural commodities, peanuts, pecans, ginseng, and macadamia nuts, for imported covered commodities that have not subsequently been substantially transformed in the United States that are commingled with imported and/or United States origin commodities, the declaration shall indicate the countries of origin for all covered commodities in accordance with CBP marking regulations (19 CFR part 134). For example, a bag of frozen peas that were sourced from France and India is currently required under CBP regulations to be marked with that origin information on the package. Any imported commingled covered commodity remains subject to mandatory country-oforigin labeling under 19 CFR part 134, even though not subject to COOL as implemented by 7 CFR part 65. Such commingled covered commodities area already subject to mandatory country-of-origin labeling because they are not exempt from labeling under the “J” List.i For the produce industry, such articles as bagged salads imported into the U.S. are already subject to country-of-origin labeling. The exemption for commingled covered commodities is merely an acknowledgement that such products should not be subject to two different country-of-origin marking requirements – the Farm Bill’s requirements and Customs requirements. We also support the rule’s definition of a processed food item as one in which the item has undergone a “change in the character of the covered commodity, or has been combined with at least one other covered commodity.” With regard to produce, this definition appropriately exempts fresh processed products such as fruit cups and party trays derived from multiple commodities.

4. Country of Origin Notification (§65.300) For this section we support both subsection (d) and (f) definitions of what would constitute a covered commodity of United States origin. In particular under Subsection (f) we would support the specific recognition that imported products in consumer-ready packages that comply with existing rules under U.S. Custom and Border protection requirements and requires no further labeling. Subsection (g) Labeling of commingled covered commodities. As with subsection (f), we support the specific recognition that imported products that are commingled but have not been substantially transformed must comply with existing rules under current federal requirements and no further labeling is required under the IFR. The Department’s analysis (FR45118) is helpful in clarifying that the declaration of the product can indicate the several countries of origin that are represented in the overall commingled process, without being required to verify which specific countries of origin are found within each individual retail package. In the case of produce, this provision allows for a bag of whole fruit (e.g. apples and oranges) from two or more countries to simply list those countries on the package without regard to predominance of weight,which fruit is from which country, or other requirements beyond current law. In addition, fruits or vegetables that are commingled with produce from two or more countries and then repacked for retail sale can be labeled listing those two or more countries without the need to verify which products of which specific countries are included in any given retail package.
5. Markings (§65.400) Subsection (a) – We support the IFR recognition of country of origin declaration may be provided to consumers by means of a label, placard, sign, stamp, band, twist tie, pin tag, or other clear and visible sign on the covered commodity or on the package,
display, holding unit or bin containing the commodity at the final point of sale to consumers. This notification provides suppliers as well as retailers with the acceptable flexibility to utilize traditional labeling practices already in use throughout the produce distribution chain. In addition we support the IFR’s ruling that a declaration of the country of origin of a product may also be in the form of a check box, provided it is in conformance with other Federal labeling laws. Finally, we support that the declaration of country of origin can be in the form of statement “Grown in the United States” or “Product of Mexico” or can include just the country “United States” or Mexico. Subsection (b) and (c) – We agree with the IFR that the only requirement related to the marking is that it must be “legible” and “conspicuous” to consumers under subsection (b). We also support the IFR’s ruling in subsection (c) that allows for a wide range of options for customers to apply declarations included typed, printed or handwritten information. Again, this allows the produce distribution chain the ability to utilize current labeling systems already in place on a voluntary scale and will provide produce items that are not currently labeled for COOL a cost-efficient way to readily comply with this new regulation. Subsection (d) – We support this provision to recognize that bulk displays may contain covered commodities from two or more countries, “provided all possible origins” are listed. This is a critically important provision to allow for flexibility at retail level and important COOL information to the consumer. In the case of produce, this provision allows for a display bin of bananas to be labeled “Product of Costa Rica, Ecuador or Honduras,” and be fully compliant with the rule. In addition, for stickered products in bulk displays, USDA recognizes in the IFR that 100 % stickering is not achievable. Under the IFR USDA agrees that consumers will be able to discern COOL information if a majority of the product is labeled in these bulk displays. While retailers always have the discretion to use signs, placards or
other communications to convey COO, USDA should state affirmatively that no further signage is required to comply with the Act if a majority of items in a bin bear COO stickers.
An example of this is prior to 1986 and changes to food labeling requirements, sufficientconsumer information was provided by the Food and Drug Administration’s handling of sulfite labeling on bunches of grapes. The FDA agreed that tags on only 50% of the grape bunches were sufficient to give notice to sulfite sensitive consumers that grapes in the display had been treated with sulfur dioxide. If the FDA found 50% product labeling sufficient even in this case of human health, we are confident that such a standard would be more than sufficient for adequate disclosure of country of origin. Subsection (e) – We believe the department should look carefully at the industry’s ability to utilize abbreviations (country and state) in order to reduce label space that would be required to fully spell out each country of origin for each individual product. Should USDA retain its current prohibition on abbreviations in consumer information, the agency must be clear that origin information in records and paperwork can be maintained with any acceptable abbreviations. Otherwise, USDA would be mandating a new and tremendous amount of excessive and unnecessary paper work – specifically prohibited by statutory language in the 2008 Farm Bill – that would be required by suppliers. Subsection (f) – As is now mandated under the 2008 Farm Bill we strongly support the ability to utilize labeling of a U.S. State, region or locality in which a product is produced to meet label standards as product of United State. In addition, we support the ability of state abbreviations which is standard practice in many current state labeling programs and is readily accepted identification by consumers.
5. Recordkeeping Requirements (§65.500) Subsection (a) General USDA has made significant steps to minimize unnecessary recordkeeping requirements. Most importantly, as stated earlier, the 2008 Farm Bill amended the statutory recordkeeping requirements to prohibit USDA from requiring anyone who handles a covered commodity from having to keep records beyond those retained in the normal course of business. This requires USDA to accept current recordkeeping practices within the industry to verify compliance with COOL. In general, we support the support the specific recognition under (a)(1) and (a)(2) that acceptable records can come in a variety of forms, they can be maintained either electronically or hard copy, and that suppliers and retailers to have up to 5 business days to make available records verifying country of origin information to USDA and that these records can be maintained for up to one year at any location as determined by the supplier or retailer. This is a significant change to past proposals offered by USDA and one that is a direct result of the changes in the 2008 Farm Bill. However, in public comments, USDA representatives have repeatedly gone beyond even this IFR to advise the industry of the need for significantly more extensive records than are currently maintained in order to verify COOL. We strongly urge USDA to clarify in the final rule that the statutory prohibition of any new record requirement is recognized and accepted. Subsection (b) Responsibilities of Suppliers (b)(1) – In general, we support the requirement that the supplier of a product to a
retailer must make available COO information about that product. However, this provision should also clarify that suppliers have no requirement to offer COO information in any particular form or format, or in labeling individual products offered for sale. We encourage USDA to provide a definitive declaration that suppliers may convey COO information to retailers through any method of their choosing in order to comply with the regulation. In current trade practice, some have been confused as to whether supplier labeling of COO on the actual produce item is required, or whether multiple documents such as invoices or bills of lading must contain COO information. USDA should make clear that, in fact, COO information may be provided to the retailer in any form. Relationships in the marketplace – not the statute – will determine in what form that communication will take place, including whether individual product eventually is labeled by a supplier. (b)(3) – We support this provision which requires importers the responsibility to verify COOL information on products imported into the United States. This provision allows for the COOL chain of information to flow from the importer of record to the retail level. Subsection (c) Responsibilities of the Retailers (c)(1) – As part of this provision, we also strongly support the specific recognition that retailers may rely upon pre-labeled products as “sufficient evidence” of the COOL. This is an important safe harbor for the produce and retail industries, as an increasing share of fresh produce now arrives at retail stores pre-labeled with COOL. However we are becoming increasingly concerned that the IFR, USDA’s Q&A documents, and the preamble to the IFR are not written in a way that conveys this information accurately. In turn, this is creating significant confusion amongst the impacted industry throughout the produce distribution chain. In particular, USDA must clearly define pre-labeled products to include all produce items that bear a COO declaration, regardless of any other information that may or may not be affixed
directly to the produce item. In turn, USDA must then specify that additional recordkeeping at retail is not required for pre-labeled products, as the vendor who supplied the pre-labeled produce has the responsibility to verify the claim. The current speculation provided by USDA has created questions between the supplier and retail community as to what constitutes a pre-labeled product and what are the recordkeeping requirements for a pre-labeled product. This issue should be clearly defined in the final rule. (c)(2) – As with the areas above we support this provision as long as the issue of pre-labeled products is resolved. Other Issues:
7. Enforcement The effective date of the IFR is September 30, 2008. However, because there will be significant amount of product in commerce prior to the effective date, product that is grown or labeled before September 30, 2008 will be exempt. USDA has stated that for produce, product that is harvested prior to September 30, 2008 will be exempt from the COOL requirements. We support these provisions of the IFR. We also support the provisions that provide for enforcement responsibilities to the U.S. Secretary of Agriculture (Secretary) and encourages the Secretary to enter into partnerships with states to assist in the administration of the program. It is particularly important that only USDA, not state partners nor individuals, is able to initiate enforcement actions against a person found to be in violation of the law. The COOL law specifically does not allow for any private right of action, and USDA must not let its own enforcement and verification steps be driven by potentially disgruntled individuals or others seeking selective enforcement against specific retailers. We strongly support the Department’s commitment that USDA alone will determine the scheduling and procedures for compliance reviews, and that only USDA will be able to initiate enforcement actions. We also urge clarification that states will not earn any “profit” from their cooperative enforcement activities, but rather simple reimbursement of costs.
8. Existing State Programs We support the Department’s interpretation that state programs that encompass commodities subject to this regulation are preempted. This is an important step as several states are now considering implementing their own COOL programs.
9. Cost of Administration
While the estimated cost to USDA that would be required to administer the IFR is undetermined, we believe it is essential that all costs to administer a program must be supported by USDA’s appropriated budget, and in no way draw on user fees or take away staff time and commitment to other AMS programs for which user fees are required. The final rule should make this clear.
10. Food Safety and COOL
We strongly agree with USDA that COOL is a not a food safety law. Industry members know that produce safety is in the hands of the growers, distributors and retailers of the product. Produce can be grown safely in countries around the world; or, produce can be grown without adhering to appropriate safety standards. That is not dependent upon a country sticker on a label, but upon the commitment of the person growing that product.With COOL information becoming much more widespread, the industry needs to help consumers understand that geography cannot become shorthand for food safety. Growers, marketers and retailers working together have the means to assure that every produce item sold in that store has been produced and distributed under good agricultural and handling practices.
11. COOL and Traceability Congressional intent is clear that COOL was not intended to be a traceability law, but merely to provide COO information to consumers. Bottom line, USDA efforts to verify COOL accuracy on stickers, bags or signs above bulk bins cannot take on a regulatory life of their own requiring multiple new record-keeping schemes. As stated previously, Congress specifically wrote into the law that USDA cannot require retailers or suppliers to keep records “other than those kept in the normal course of business” in implementing COOL. USDA must implement COOL in a way that is true to its goal to inform consumers about where produce comes from, not create a new regulatory infrastructure.
12. Timing of Final Rule We support USDA’s intent to conduct an educational and outreach as COOL is implemented in the industry. During this period, we urge USDA to also conduct multiple trial compliance audits with retailers around the country as a way of ensuring consistency in interpretation among state partners and USDA itself. In this way, all stakeholders including USDA can gain real experience with implementing COOL efficiently and consistently while finalizing a rule that will govern market dynamics for years to come. In addition, we would support the Department’s efforts to finalize this rule expeditiously as to provide certainty to the impacted industry groups that will be required to comply with this law. Since the IFR was published, we have already seen how even its precise language can be interpreted differently by different people, within USDA and out. This effort needs to be finalized with a final rule while USDA continues to gather additional clarifying information and published on USDA’s website as FAQs. We hope that these comments are useful in improving this rule. Should you have any questions or matters that need clarification, we would be happy to expand on these comments either in writing or in person.


Sincerely,
Thomas E. Stenzel
President and CEO
Endnotes:
i The Tariff Act of 1930 authorizes a series of exceptions to the labeling requirements, such as articles that are incapable of being marked or where the cost would be “economically prohibitive.” The “J List,” so named for section 1304(a)(3)(J) of the statute, empowered Customs to exempt classes of items that were “imported in substantial quantities during the five-year period immediately preceding January 1, 1937, and were not required.

The Gravity Of The Situation

Is something going on here, like Jupiter aligning with Mars? Are we going to look back on these recent days like our parents remember VJ Day in August 1945?

In this immediate gratification age, it just doesn't seem the same to me. Certainly, September 11, 2001 is bored into the brain stem & will remain solidly there permanently because of the uncertainty of the future on that day. I suppose the Cuban Missile Crisis was a similar event to the generation before mine. I was only five but do remember the fallout shelter drills, even in kindergarten. Don't think I could fit under that desk anymore.

But now? 777 down on the Dow yesterday. Not as horrid as the 22% drop in '87, but a major haircut nonetheless. Yesterday's vote for the bailout plan, the line in the sand, failed. So Thursday's anticipated vote is the 'new' line in the sand, the next crucial day in our history. Each passing crisis, if you're a chronic media watcher/semi-believer like myself, is inhaled, digested & excreted in spin form, tightly packaged in conservative FOX or liberal MSNBC wrapping. In this arena, there are multiple shades of the gray truth. And trying to absorb it ain't that fun either--it's been like being bludgeoned in the head repeatedly by a sack of oranges.

But maybe it's best we don't remember all this drama in the future. Maybe we're better off purposely forgetting all that stuff & simply noting the snapshots in time instead---the first sip of a great glass of an aged Cabernet, the roar at the dice table when you just rolled a third point in a row, the delicious tension of a winner-take-all baseball game, like the Minnesota/Chicago contest tonight.

'Cause in the end, that's all that really counts.

Later,

Jay

Part 4 Rewind: WPPC-FDA Meeting Sept. 11

John (Jack) Guzewich of the FDA continues his presentation to the WPPC attendees on Sept. 11.

So it is often time starts out with a heads up that they(state and local officials) are suspicious something is going on, and then ultimately we get the word that a product we regulate is implicated and we are more heavily involved, and that’s the point a traceback investigation begins.

I hope that helps you understand…some of you are probably aware that the Centers for Disease Control, one of their publications is called Morbidity and Mortality Weekly report…….they issued a preliminary report on this investigation on August 29 and I’m sure some of you are aware of that, it is available on their Web page and so forth, and their conclusion, which is actually not the CDC’s conclusion (alone), but they vetted their investigation with a large number of epidemiologists across the country, at the state and local level, as to their analysis itself and their conclusions. They continue to maintain that in the early part of this investigation that tomatoes were an implicated vehicle but clearly later in the investigation jalapeno and Serrano peppers were also involved as vehicles in the outbreak. So this will go down in our records as a multi-vehicle or multi-food outbreak with tomatoes, either roma or round, as well as Serrano and jalapenos as possible vehicles.

That’s a little background. We’ll try to answer more of your questions in the QA time.
(of the session).

WG: comment on COOL

From the federal docket on COOL, the comment from Western Growers and Matt McInerney. WG addresses abbreviations, documentation, third party audits, bulk displays and USDA guidance.




September 29, 2008



Country of Origin Labeling Program, Room 2607-S
Agricultural Marketing Services
U.S. Department of Agriculture - Stop 0254
1400 Independence Avenue, SW Facsimile: 202-354-4693
Washington, DC 20250-0254 http://www.regulations.gov

Re: Docket No. AMS-LS-07-0081 - Mandatory Country of Origin Labeling

Western Growers (WG) has commented on the two previous COOL notices and hereby submits its comments on the final interim rule.

WG is an agricultural trade association representing nearly 3,000 growers, packers, and shippers of fresh fruits, nuts, and vegetables. WG members grow, pack, and ship 70 percent of the fresh fruits and nuts and 90 percent of the fresh vegetables produced in the states of Arizona and California.

WG supports the Department’s streamlined approach final interim rule; however, we offer the following comments relating to specific provisions in an effort to provide greater clarity, particularly in areas where we have noted some confusion or ambiguity on the part of our growers and shippers of fresh produce commodities.

Abbreviations – Section 60.300(e)

We agree with the Department that country abbreviations should be unmistakably identifiable. The Department refers to CBP which maintains a list of approved country abbreviations, however, a review of the CBP approved country abbreviations reveals that many abbreviations may not provide consumers with an identifiable country of origin and would not, therefore attain the set goal of COOL. In addition, the referral to CBP is an extremely difficult website to navigate and therefore not workable. The produce industry needs clear examples and USDA should publish guidance lists from as many reliable sources as practical, including CBP, in order to maximize flexibility to allow the produce industry to have as many abbreviation sources as possible.

As for shipping documentation, WG does not believe that shipping documents exchanged within the trade distribution channels should be required to include a legend for origin abbreviations on each document as most within the industry will be familiar with the majority of commodities and their origins. Additionally, virtually all shipping cartons will contain the full printed name of the country of origin. Therefore, this requirement is not all necessary and would be duplicative.


Audit and Enforcement – Section

WG would request that the Department amend the requirement for producing documentary evidence material from a 5 day to a more reasonable 30 day period. WG believes that a 5 day period may not always allow a retailer or other entity sufficient time to produce all necessary records without causing disruption to the normal business practice. Further WG believes that a 30 day period would not be unreasonable and would be consistent with the same time frame provided by the Secretary for a retailer or supplier to take corrective steps in order to be compliant.

Also, the Department must emphasize that 3rd party verification audits are not a requirement. Consistent with PACA, a buyer is entitled to rely on seller representation.

Markings – Bulk Displays

WG urges the Department to adopt a reasonable standard for labeling by stickered commodities displayed in bulk. WG believes that a threshold of approximately 30 percent should be set for commodities in a bulk display as stickered with the overall industry goal of 50 percent. This should provide more than adequate information/notice to the consumer as to the origin of the commodity.

Processed or Blended Commodities

WG urges the Agency to be consistent when determining exemptions. The purpose of COOL is to enable a consumer to determine the source of the commodity being considered for purchase. While marketplace influence will help determine the extent of labeling practices, providing exemptions for some covered commodities and not others does not provide consistent labeling requirements.

The Agency has determined that when distinct covered commodities are packaged together they are exempt from labeling requirements, while two different covered commodities of the same genus botanical family are apparently required to be labeled. As an example lettuce and carrots packaged as a salad blend are exempt, but iceberg lettuce and red leaf lettuce mixed together would not be exempt.

WG believes that the Agency must be consistent in the guidance. The Agency needs to give specific guidance whether it is based on commodities from the same genus, family, order or sub-class, etc. Merely citing an example of two commodities does not provide the needed definite guidance in determining whether labeling is required.



Finally, WG requests that when discussing or issuing a rule, the Department refrain from referring to non-related commodity groupings or previous COOL rulings rather than citing specific examples. Previous Agency comments have actually caused some confusion within industry segments when using examples of shell-fish or meat when addressing fresh fruits or vegetables. While some of the basics may be the same, detailed explanations using unrelated commodity groupings may actually lead to greater confusion rather than clarification for those seeking Agency advice or rulings.

Sincerely,



Matthew M. McInerney
Executive Vice President

COOL Comment - California Grape and Tree Fruit League

From the federal docket on country of origin labeling, a comment from Barry Bedwell about COOL. He points out that too much flexibility in labeling can result in a variance in demands by buyers, and he also observe that a six month phase in period would do tree fruit growers little good since their season is all but over anyway.




September 29, 2008
VIA ELECTRONIC MAIL: www.regulations.gov
U.S. Department of Agriculture
Agricultural Marketing Service
Attn: Country of Origin Labeling Program
Room 2607-S; Stop 02541400 Independence Avenue
SWWashington, D.C. 20250

Re: Docket No. AMS-LS-07-0081; Mandatory Country-of-Origin Labeling (COOL)

With origins dating back to 1911, the California Grape & Tree Fruit League (League) is non-profit public policy and advocacy organization representing growers, packers, shippers, and exporters of California’s table grape and deciduous tree fruit communities. The League’s members collectively account for approximately eighty five percent of the volume of California table grape and tree fruit production. We appreciate the opportunity to provide comments on certain elements under the COOL Interim Final Rule. While we believe the rule is a vast improvement over the regulations as interpreted under the requirements of the 2002 Farm Bill and will serve well the needs of consumers and the produce industry, there are three specific areas we wish to provide input.The first concerns the reality that while the large majority of tree fruit is individually stickered, and even though under normal packing and handling procedures an estimated 10 to 30 percent of the stickers fall off prior to being displayed at retail establishments, the fact that a majority of the fruit remains identified should present no further problems in these cases. However, for growers and shippers who deal with shipments of non-stickered fruit, these entities may find themselves disproportionately impacted as retailers have the ability to require different labeling standards from their suppliers, all or none of which will be identical. We are concerned that the lack of a specific minimum labeling requirement could ultimately require suppliers to have multiple containers and packaging inventories available. In addition, a possible scenario is that a producer supplying fruit for bulk sale that is not currently stickering fruit may now be required by retailers to sticker individual pieces of fruit because the rule only “encourages” retailers to use placards or other methods. Under this rule, the fact is that a retailer will be able to pass the burden on to the supplier. This is going to be expensive, and those producers who can not comply could possibly be subject to a material loss in revenue. We believe the rule should have allowed for a minimum standard to ensure greater consistency in compliance. With a minimum standard, if a single requirement were in place (i.e. labeling on shipping container, individual clam shells, bill of lading, invoice, etc.) the supplier could meet, without question, the minimum requirement and thus the burden could be more equitably distributed. We firmly support the rule’s flexibility in making available various ways to discern origin information. The ability to comply through marking on a bill of lading, invoice, sticker, container or other vehicle carrying the covered commodity is a clear recognition that the marketplace is dynamic and will demonstrate the ability to adapt to various compliance methods.The second area of concern revolves around the creation of a reasonable phase-in period for the rule so that suppliers could use existing inventory to the greatest extent possible. We would support a one year phase-in as opposed to six months in that given the shipping season for table grapes and tree fruit, which generally runs May through October, a six month phase in from October through March would be of no benefit for our sector.The third and final area of comment concerns the use of state abbreviations in labeling practices. While we do not see this as a major issue for California, in the spirit of cooperation and flexibility and at the same time meeting the intent of the law, we believe that state abbreviations should be acceptable.As the September 30, 2008 compliance date approaches we look forward to both your response to these questions and to the educational outreach on retailer compliance to follow. Thank you for the opportunity to comment.

Sincerely,
Barry Bedwell
President