[Federal Register Volume 59, Number 214 (Monday, November 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27517]
[[Page Unknown]]
[Federal Register: November 7, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944
[Docket No. FV93-932-3FIR]
Olives Grown in California and Imported Olives; Revisions of
Outgoing Inspection Requirements and Size Requirements for Whole Pitted
Olives
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with changes, the provisions of an interim final rule
amending outgoing inspection regulations under the California olive
marketing order to authorize handlers to use in-plant Quality Assurance
Programs (QAPs) in lieu of continuous in-line inspection. This rule
also permits handlers to size whole pitted olives by diameter as an
alternative to the requirement that such olives be sized by weight
prior to pitting. Conforming changes are made to the size requirements
for imported whole pitted olives so that the requirements for domestic
and imported olives are applied similarly. The changes in the
California olive requirements are designed to result in more efficient
handling operations. The changes in import requirements are necessary
under section 8e of the Agricultural Marketing Agreement Act of 1937.
EFFECTIVE DATE: Effective on December 7, 1994.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, California Marketing
Field Office, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey
Street, Suite 102B, Fresno, California 93721, telephone 209-487-5901;
or Caroline Thorpe, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2525-S, Washington,
DC 20090-6456, telephone (202) 720-5127.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement No. 148 and Marketing Order No. 932 [7 CFR Part 932], both as
amended, regulating the handling of olives 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.
This final rule is also issued pursuant to section 8e of the Act,
which provides that whenever certain specified commodities, including
olives, are subject to grade, size, quality, or maturity requirements
under a Federal marketing order, the same or comparable requirements
shall be applied to imports of those commodities.
The Department is issuing this final rule in conformance with
Executive Order 12866.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This final 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 the Secretary 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 requesting 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 the Secretary 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the impact of this final rule on small
entities.
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. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are 5 handlers of olives regulated under the order, and
approximately 1,350 producers in the regulated area. In addition, there
are approximately 25 importers of olives subject to the requirements of
the olive import regulation. Small agricultural producers have been
defined by the Small Business Administration [13 CFR 121.601] as those
having annual receipts of less than $500,000, and small agricultural
service firms, which include olive handlers and importers, are defined
as those whose annual receipts are less than $5,000,000. The majority
of the olive producers and importers may be classified as small
entities. None of the olive handlers may be so classified.
The interim final rule was issued on July 21, 1994, and published
in the Federal Register [59 FR 38104, July 27, 1994], with an effective
date of July 27, 1994. That rule amended Secs. 932.152, and 932.401 of
regulations in effect under the order. That rule provided a 30-day
comment period which ended August 26, 1994. No comments were received.
The California Olive Committee (committee), the agency responsible
for local administration of the order, met on December 14, 1993, and
unanimously recommended revising outgoing inspection procedures to
permit handlers to establish a QAP in lieu of maintaining continuous
in-line outgoing inspection of processed olives. Outgoing inspection is
the assignment of a final grade to the product after processing is
completed, according to the requirements of the U.S. Standards for
Grades of Canned Ripe Olives (Standards) [7 CFR 52.3751 to 52.3764].
The committee also recommended that handlers be allowed to size whole
pitted olives by diameter after pitting, as an alternative to the
requirement that such olives be sized by weight prior to pitting.
Prior to the interim final rule, Sec. 932.52 of the order and
Sec. 932.152 of the regulations required handlers to maintain
continuous in-line outgoing inspection for the handling of processed
olives. Also, pursuant to Sec. 932.53, such outgoing inspection is
performed by the Processed Products Branch (PPB) of the Department.
Continuous in-line outgoing inspection consists of inspection and
grading services in an approved plant whereby one or more PPB
inspector(s) are present at all times the plant is in operation to make
in-process checks on the preparation, processing, packing, and
warehousing of all products and to assure compliance with sanitary
requirements. However, costs for continuous in-line outgoing inspection
have increased in recent years. Thus, the PPB is prepared to develop
QAP inspection procedures which will provide quality assurance
certification for California olive handlers, thereby reducing handlers'
inspection costs.
Currently, most handlers employ their own quality-control
personnel. The PPB is prepared to establish QAPs with individual
handlers as provided in the ``Regulations Governing Inspection and
Certification of Processed Fruits and Vegetables and Related Products''
[7 CFR Part 52.2]. As established, handlers will be permitted to use a
QAP inspection procedure rather than continuous in-line outgoing
inspection. Under a QAP, the PPB provides training for the handler's
quality-control personnel. The handler's quality- control personnel
will be trained in the same procedures currently used by the PPB
inspectors. Once the handler's quality-control personnel are trained to
properly perform the same duties and responsibilities as a PPB
inspector, a period of evaluation of the reliability of the handler's
quality control responsibilities begins. This is the reliability
evaluation period. At such time as the handler's quality-control
personnel successfully complete the reliability evaluation period, a
QAP will begin operation with oversight provided by the PPB. The PPB
inspectors will continue to issue certificates of inspection.
Certificates of inspection will be based on outgoing inspection records
maintained by the handler's QAP personnel. These will be verified
through spot-checks and sample regrading by PPB inspectors. A QAP will
continue to assure safe, wholesome, and uniformly high-quality
processed products.
Under a QAP, each handler and the PPB will develop an individually
written plan tailored to each handler's facility. A contract between
the handler and the PPB will also be developed based upon the terms of
the QAP. The contract will be signed at the beginning of the
reliability evaluation. Once a handler's QAP is approved, the handler
is notified in writing and the PPB begins verifying the work of the
handler's QAP personnel. Such verification may include reviews of plant
sanitation, quality and non-quality product analyses, procedures and/or
techniques, case-stamping, checkloading, condition of container, or
other types of procedures normally performed by the PPB. Inclusion of
any or all of these verification procedures will be determined by the
operating characteristics of each handler's facility or facilities.
In the event deviations from proper QAP procedures are detected by
the PPB during the reliability verification process, the handler will
be informed of the problem and corrective action required. If
corrective action is taken, the QAP continues in operation. Continued
deviations may result in suspension of QAP approval. The suspension may
be permanent or temporary and may only be restored upon concurrence by
the PPB. During any suspension, the handler would be required to use
continuous in-line inspection.
Establishing a QAP inspection procedure meets marketing order
inspection requirements, and provides handlers with an alternative to
continuous in-line inspection (which requires the presence of a PPB
inspector during final processing prior to the packaging of olives). To
effectuate this change, paragraphs (a) and (b)(1) of Sec. 932.152,
Outgoing regulations, are revised to add authority for handlers to use
either the QAP process or continuous in-line inspection.
Section 932.52 authorizes sizing of whole pitted olives based upon
count-per-pound designations (the actual weight of individual fruit) or
modifications recommended by the committee and approved by the
Secretary. Prior to the interim final rule, Sec. 932.152 specified that
all processed olives must be sized in accordance with the count-per-
pound designations established for canned whole ripe olives, and
further required that such sizing be done prior to pitting. This final
rule provides an alternative method for sizing whole pitted olives to
provide handlers with more flexibility in their operations while
ensuring that appropriate size standards are continued for whole pitted
olives.
The Standards provide a method for sizing whole pitted fruit on the
basis of illustrations and approximate diameter ranges (Sec. 52.3754,
Table I). For example, olives that are ``Jumbo'' in size are those that
are approximately 22 to 24 millimeters in diameter and conform closely
with the applicable illustration in Table I. The committee believes
that this sizing method may be more appropriate for whole pitted
olives, which now account for a substantial majority of the California
olives packaged in the whole form. Thus, this rule authorizes the
sizing of whole pitted olives after pitting in accordance with the
illustrations and approximate diameter ranges provided in the
Standards.
The Standards also provide allowances for size variances for whole
pitted olives in Sec. 52.3756. The requirements of U.S. Grade C (the
minimum allowed under the order), provide that of the 60 percent, by
count, of the olives that are most uniform in size, the diameter of the
largest olive cannot exceed the diameter of the smallest olive by more
than 4 millimeters. These variances will be applied to whole pitted
olives when handlers choose to have their pitted olives sized by
diameter, after pitting. The committee believes that these guidelines
for sizing whole pitted olives are sufficient and that no additional
specifications relating to size are needed at this time.
To provide for this change in whole pitted olive sizing
requirements, paragraph (f) of Sec. 932.152 is revised to add authority
for sizing by diameter as provided in the Standards. In addition,
paragraph (b)(1) of Sec. 932.152 is revised by deleting the sentence
which requires sizing prior to pitting. Also, paragraph (b)(2) is
revised to reflect the elimination of the in-line inspection and sizing
prior to pitting requirements.
This rule changes the interim final rule published in the Federal
Register July 27, 1994 [59 FR 38104]. That rule modified Table II in
Sec. 932.152, paragraph (g)(1), to conform to rule changes made in
1991. However, further changes were made to Table II in an interim
final rule published in the Federal Register on September 13, 1994 [59
FR 46907]. This final rule therefore conforms with the changes in the
most recent interim final rule.
In accordance with section 8e of the Act, olives imported into the
United States are subject to comparable size requirements as
established for domestically grown olives under the order. Those
requirements are found in Olive Regulation 1 [7 CFR 944.401].
Under the import regulation, canned pitted ripe olives are subject
to minimum size requirements in terms of a minimum diameter and a
specific tolerance for undersized fruit. The undersize tolerances set
forth in the import regulation are based upon those established for
canned whole olives under the California olive marketing order.
As previously explained, this final rule establishes size
requirements for canned pitted olives under the order in terms of
illustrations, approximate diameter ranges, and size variances which
are set forth in the Standards. Thus, in accordance with section 8e of
the Act, conforming changes are made in the minimum size requirements
for imported canned pitted olives so that such requirements are applied
in a manner similar to that under the order.
Based on the above, the Administrator of the AMS has determined
that this rule will not have a significant economic impact on a
substantial number of small entities.
In accordance with section 8e of the Act, the U.S. Trade
Representative has concurred with the issuance of this final rule.
After consideration of all relevant matter presented, including
information and recommendations submitted by the committee and other
available information, it is found that finalizing the interim final
rule, with changes, as published in Federal Register [59 FR 38104],
will tend to effectuate the declared policy of the Act.
Lists of Subjects
7 CFR Part 932
Marketing agreements, Olives, Reporting and recordkeeping
requirements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble, 7 CFR Parts 932 and 944
are amended as follows:
1. The authority citation for both 7 CFR Parts 932 and 944
continues to read as follows:
Authority: 7 U.S.C. 601-674.
PART 932--OLIVES GROWN IN CALIFORNIA
2. Accordingly, the interim final rule amending 7 CFR Part 932
which was published at 57 FR 38104 on July 27, 1994, is adopted as a
final rule with the following change:
Table II in Sec. 932.152(g)(1) is revised to read as follows:
Sec. 932.152 Outgoing regulations.
* * * * *
(g) * * *
(1) * * *
Table II.--Limited Use Size Olives
------------------------------------------------------------------------
Average count range (per
Variety pound)
------------------------------------------------------------------------
Group 1, except Ascolano, Barouni, and St. 76-90, inclusive.
Agostino.
Group 1, Ascolano, Barouni, and St. Agostino 106-140, inclusive.
Group 2, except Obliza...................... 141-180, inclusive.
Group 2, Obliza............................. 128-140, inclusive.
------------------------------------------------------------------------
* * * * *
PART 944--FRUITS, IMPORT REGULATIONS
3. Accordingly, the interim final rule amending 7 CFR Part 944
which was published at 59 FR 38104 on July 27, 1994, is adopted as a
final rule without change.
Dated: November 1, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-27517 Filed 11-4-94; 8:45 am]
BILLING CODE 3410-02-P
