[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Proposed Rules]
[Pages 20756-20759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11459]
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 924 and 944
[Docket No. FV95-924-1PR]
Fresh Prunes Grown in Washington and Oregon: Proposed Handling
Requirement Revision; Fruits; Import Regulations; Proposed Fresh Prune
Import Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would change the effective period of the
handling regulations in effect for shipments of fresh prunes grown in
specified counties of Washington and in Umatilla County, Oregon under
Marketing Order No. 924 to coincide with the domestic shipping season.
This proposed rule would also establish grade, size, and quality
requirements for prune variety plums (fresh prunes) imported into the
United States. The proposed import requirements would be issued
pursuant to the authority in section 8e of the amended Agricultural
Marketing Agreement Act of 1937.
DATES: Comments must be received by June 7, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments should be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, PO
Box 96456, Washington, DC 20090-6456 or by FAX at (202) 720-5698. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be available for
public inspection in the office of the Docket Clerk during regular
business hours.
FOR FURTHER INFORMATION CONTACT: Britthany E. Beadle, Marketing Order
Administration Branch, AMS, USDA, PO Box 96456, room 2526-S,
Washington, DC 20090-6456; telephone: (202) 720-5127; or Teresa
Hutchinson, Northwest Marketing Field Office, AMS, USDA, 1220 SW Third
Avenue, room 369, Portland, Oregon 97204; telephone: (503) 326-2725.
SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing
Order No. 924 (7 CFR part 924), as amended, regulating the handling of
fresh prunes grown in specified counties of Washington and in Umatilla
County, Oregon, 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 proposed rule is also issued under section 8e of the Act,
which provides that whenever certain specified commodities, including
plums or fresh prunes, are regulated under a Federal marketing order,
imports of these commodities into the United States are prohibited
unless they meet the same or comparable grade, size, quality, or
maturity requirements as those in effect for the domestically produced
commodities. The Secretary has determined that the minimum grade,
quality, and size requirements for fresh prunes imported into the
United States should be the same as those established for fresh prunes
grown in Washington and Umatilla County, Oregon, under Marketing Order
No. 924.
The Department of Agriculture (Department) is issuing this proposed
rule in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This action is not intended to have retroactive
effect. This proposed 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 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 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 an action is filed not
later than 20 days after 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 Agricultural Marketing Service (AMS) has
considered the economic impact of this proposed 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 approximately 5 handlers subject to regulation under the
order and about 350 producers of Washington-Oregon fresh prunes. There
are no known importers of fresh prunes. Small agricultural service
firms, which include fresh prune handlers and importers, have been
defined by the Small Business Administration (13 CFR 121.601) as those
whose annual receipts are less than $5,000,000, and small agricultural
producers are defined as those whose annual receipts are less than
$500,000. A majority of these handlers and producers may be classified
as small entities.
Most of the prune variety plums (fresh prunes) grown in the United
States are produced in certain counties in Washington and in Umatilla
County, Oregon. Such fresh prunes are regulated under the order which
establishes
[[Page 20757]]
minimum grade, size, and quality requirements for fresh prunes. There
is no other Federal marketing order regulating plums or fresh prunes.
The Washington and Oregon fresh prune industry ships throughout the
United States. Between 1990 and 1994, shipments of fresh prunes from
Washington and Oregon ranged from 8.4 to 22.6 million pounds.
The grade, size, and quality of fresh prunes grown in Washington
and Oregon are regulated under the order. These handling requirements
do not change substantially from season to season, and they have been
issued on a continuing basis subject to amendment, modification, or
suspension as may be determined by the Secretary. Currently, the
handling regulations under the order are effective throughout the
entire year. This proposed rule would change the effective dates of the
handling regulations to July 15 through September 30 each year, so that
the regulatory period more closely coincides with the marketing season
for fresh prunes grown in Washington and Oregon. This proposed period
includes additional time after the last day of harvest when some lots
of fruit may be kept in cold storage prior to shipment.
Fresh prunes offered for importation into the United States would
be regulated based on the requirements under the order and during the
same period of time when Washington and Oregon fresh prunes are
regulated. However, fresh prunes are not, at this time, being imported
into the United States.
This rule proposes that, from July 15 through September 30 each
year, fresh prunes imported into the United States be required to meet
the same minimum grade, size, and quality requirements as those for
fresh prunes under the order.
This proposed rule would add a new Sec. 944.700 under 7 CFR part
944--Fruits; Import Regulations to require that fresh prunes imported
into the United States, except for the Brooks and President varieties,
meet modified requirements of the U.S. No. 1 grade as set forth in the
United States Standards for Grades of Fresh Plums and Prunes (7 CFR
51.1520 through 51.1538), and a minimum size requirement of 1\1/4\
inches in diameter. The modifications to the U.S. No. 1 standard would
be as follows: (1) At least two-thirds of the surface must be purplish
in color; and (2) there cannot be more than 15 percent total defects in
any lot. These defects, by count, cannot exceed the following
tolerances: (a) A maximum of 10 percent of the defects may not meet
color requirements; (b) a maximum of 10 percent of the defects may not
meet the minimum diameter requirements; and (c) a maximum of 10 percent
of the defects may be in the remaining grade requirements (misshapen
and dirty fresh prunes). However, not more than 5 percent of the
remaining grade requirements may constitute serious damage, including a
maximum of 1 percent for decay.
This proposed rule would also establish the period of time for the
regulation of imported fresh prunes. From July 15 through September 30
of each year, fresh prunes imported into the United States would be
subject to the minimum grade, size and quality requirements effective
under the order. This is the same period that such requirements are
proposed to be in effect for fresh prunes under the order. Imports
arriving before the domestic commodity's shipping season begins or
after the domestic commodity's shipping season ends would not be
subject to the proposed import requirements.
Importers would be responsible for arranging for the required
inspection and certification prior to importation. Importation is
defined to mean release from custody of the United States Customs
Service. Such inspection services are available on a fee-for-service
basis. This action could therefore result in increased costs associated
with importing fresh prunes. The additional costs should be offset,
however, by the benefits accrued by ensuring that only acceptable
quality fruit is present in the U.S. marketplace. Such quality
assurance promotes buyer satisfaction and increased sales.
This proposed rule would also authorize limited quantity exemptions
from the import requirements specified herein. Individual shipments of
Stanley and Merton variety fresh prunes of less than 500 pounds, and
individual shipments of other fresh prune varieties of less than 350
pounds, would be excluded from the proposed import requirements.
Additionally, fresh prunes imported for consumption by charitable
institutions, distribution by relief agencies, or commercial processing
into products would be exempt from the proposed import requirements.
The marketing order provides similar exemptions.
To ensure that fresh prunes imported exempt from the grade, size
and quality requirements are utilized in exempt outlets, this rule
proposes that such fresh prunes be subject to the safeguard procedures
for imported fruit established in Sec. 944.350 (61 FR 13051, March 26,
1996).
Under these procedures, an importer wishing to import fresh prunes
covered herein for exempt uses would complete in triplicate, prior to
importation, an ``Importer's Exempt Commodity Form.'' One copy would be
held by the importer or customs broker. The second copy would be sent
to the Marketing Order Administration Branch (MOAB) of the Fruit and
Vegetable Division, AMS, within 2 days of the entry of the shipment.
The third copy would accompany the exempt lot to the receiver.
The form could be obtained from the MOAB by calling (202) 720-6585
or sending a fax to (202) 720-5698. The form would be completed at the
time the commodity enters the United States. Information called for on
the ``Importer's Exempt Commodity Form'' would include:
(1) The commodity and the variety (if known) being imported,
(2) The date and place of inspection, if used to enter failing
product or culls as exempt (including a copy of the inspection
certficate),
(3) Identifying marks or numbers on the containers,
(4) Identifying numbers on the railroad car, truck or other
transportation vehicle transporting product to the receiver,
(5) The name and address of the importer,
(6) The place and date of entry,
(7) The quantity imported (in pounds),
(8) The name and address of the intended receiver (e.g., processor,
charity, or other exempt receiver),
(9) The intended use of the exempt commodity,
(10) The U.S. Customs Service entry number and harmonized tariff
code number, and
(11) Such other information as may be necessary to ensure
compliance with this regulation.
The third copy of the form would accompany the exempt lot to its
intended destination. The exempt receiver would certify that the lot
has been received and it will be utilized in an exempt outlet. After
the certification is signed by the receiver, the form would be returned
to MOAB by the receiver, within 2 days of receipt of the lot.
Lots that are exempt from the grade, size, and quality requirements
of the fresh prune import regulation would not be subject to the
inspection and certification requirements in such regulation. An
imported lot intended for non-exempt uses, or any portion of such a
lot, that fails established grade, size, and quality requirements,
could be exported, disposed of in an exempt outlet following the
procedure described above, or otherwise
[[Page 20758]]
destroyed, under the supervision of the Federal or Federal-State
Inspection Service with the costs of certifying the disposal of such
fruit borne by the importer.
This proposed rule would also amend paragraph (a) of Sec. 944.400
(7 CFR part 944). That paragraph designates the Federal or Federal-
State Inspection Service of the Fruit and Vegetable Division,
Agricultural Marketing Service, U.S. Department of Agriculture as the
organization to perform inspection and certification of imported fresh
fruits specified in section 8e of the Act. That paragraph also
specifies procedures to be followed for obtaining the required
inspections. This proposed rule would designate the Federal or Federal-
State Inspection Service and Agriculture and Agri-Food Canada as the
organizations authorized to inspect and certify foreign produced fresh
prunes as meeting import requirements issued pursuant to section 8e.
Paragraphs (b), (c), and (d) of Sec. 944.400, specifying additional
procedures for obtaining inspection and certification of imported
fruits listed in the section, would remain unchanged. These procedures
are followed by importers to obtain inspection and certification of
those fresh fruits specified in section 8e which are offered for
importation into the United States.
The information collection requirements contained in this proposed
rule have been previously approved by the Office of Management and
Budget (OMB) in accordance with the Paperwork Reduction Act of 1980 (44
U.S.C. Chapter 35), and have been assigned OMB number 0581-0167.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this proposed rule.
Based on the above, the Administrator of the AMS has determined
that this action would not have a significant economic impact on a
substantial number of small entities.
A 30-day period is provided to allow interested persons to comment
on this proposal. All written comments received within the comment
period will be considered before a final determination is made on this
matter.
List of Subjects
7 CFR Part 924
Marketing agreements, Plums, Prunes, 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 above, 7 CFR parts 924 and 944 are
proposed to be amended as follows:
1. The authority citation for 7 CFR parts 924 and 944 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 924--FRESH PRUNES GROWN IN DESIGNATED COUNTIES IN WASHINGTON
AND IN UMATILLA COUNTY, OREGON
2. In Sec. 924.319, the introductory text of paragraph (a) is
revised to read as follows:
Sec. 924.319 Prune Regulation 19.
(a) During the period beginning July 15 and ending September 30, no
handler shall handle any lot of prunes, except prunes of the Brooks
variety, unless:
* * * * *
PART 944--FRUITS; IMPORT REGULATIONS
3. In Sec. 944.350, the section heading and paragraphs (a)(1) and
(a)(2) are revised to read as follows:
Sec. 944.350 Safeguard procedures for avocados, grapefruit, kiwifruit,
limes, olives, oranges, prune variety plums (fresh prunes), and tables
grapes, exempt from grade, size, quality, and maturity requirements.
(a) * * *
(1) Avocados, grapefruit, kiwifruit, limes, olives, oranges, and
prune variety plums (fresh prunes) for consumption by charitable
institutions or distribution by relief agencies;
(2) Avocados, grapefruit, kiwifruit, limes, oranges, prune variety
plums (fresh prunes), and table grapes for processing;
* * * * *
4. Section 944.400 is amended by revising the section heading and
the introductory text of paragraph (a) to read as follows:
Sec. 944.400 Designated inspection services and procedure for
obtaining inspection and certification of imported avocados,
grapefruit, kiwifruit, limes, oranges, prune variety plums (fresh
prunes), and table grapes regulated under section 8e of the
Agricultural Marketing Agreement Act of 1937, as amended.
(a) The Federal or Federal-State Inspection Service, Fruit and
Vegetable Division, Agricultural Marketing Service, United States
Department of Agriculture is hereby designated as the governmental
inspection service for the purpose of certifying the grade, size,
quality, and maturity of avocados, grapefruit, limes, nectarines,
oranges, prune variety plums (fresh prunes), and table grapes that are
imported into the United States. Agriculture and Agri-Food Canada is
also designated as a governmental inspection service for the purpose of
certifying grade, size, quality and maturity of prune variety plums
(fresh prunes) only. Inspection by the Federal or Federal-State
Inspection Service or the Agriculture and Agri-Food Canada, with
appropriate evidence thereof in the form of an official inspection
certificate, issued by the respective services, applicable to the
particular shipment of the specified fruit, is required on all imports.
Inspection and certification by the Federal or Federal-State Inspection
Service will be available upon application in accordance with the
Regulations Governing Inspection, Certification and Standards for Fresh
Fruits, Vegetables, and Other Products (7 CFR part 51) but, since
inspectors are not located in the immediate vicinity of some of the
small ports of entry, such as those in southern California, importers
of avocados, grapefruit, limes, nectarines, oranges, prune variety
plums (fresh prunes), and table grapes should make arrangements for
inspection through the applicable one of the following offices, at
least the specified number of the days prior to the time when the fruit
will be imported:
* * * * *
5. A new Sec. 944.700 is added to read as follows:
Sec. 944.700 Fresh prune import regulation.
(a) Pursuant to section 8e of the Agricultural Marketing Agreement
Act of 1937, as amended, the importation into the United States of any
fresh prunes, other than the Brooks variety, during the period July 15
through September 30 of each year is prohibited unless such fresh
prunes meet the following requirements:
(1) Such fresh prunes grade at least U.S. No. 1, except that at
least two-thirds of the surface of the fresh prune is required to be
purplish in color, and such fresh prunes measure not less than 1\1/4\
inches in diameter as measured by a rigid ring: Provided, That the
following tolerances, by count, of the fresh prunes in any lot shall
apply in lieu of the tolerance for defects provided in the United
States Standards for Grades of Fresh Plums and Prunes (7 CFR 51.1520
through 51.1538): A total of not more than 15 percent for defects,
including therein not more than the following percentage for the defect
listed:
(i) 10 percent for fresh prunes which fail to meet the color
requirement;
[[Page 20759]]
(ii) 10 percent for fresh prunes which fail to meet the minimum
diameter requirement;
(iii) 10 percent for fresh prunes which fail to meet the remaining
requirements of the grade: Provided, That not more than one-half of
this amount, or 5 percent, shall be allowed for defects causing serious
damage, including in the latter amount not more than 1 percent for
decay.
(2) [Reserved]
(b) The importation of any individual shipment which, in the
aggregate, does not exceed 500 pounds net weight, of fresh prunes of
the Stanley or Merton varieties, or 350 pounds net weight, of fresh
prunes of any variety other than the Stanley or Merton varieties, is
exempt from the requirements specified in this section.
(c) The grade, size and quality requirements of this section shall
not be applicable to fresh prunes imported for consumption by
charitable institutions, distribution by relief agencies, or commercial
processing into products, but such prunes shall be subject to the
safeguard provisions in Sec. 944.350.
(d) The term U.S. No. 1 shall have the same meaning as when used in
the United States Standards for Grades of Fresh Plums and Prunes (7 CFR
51.1520 through 51.1538); the term ``purplish color'' shall have the
same meaning as when used in the Washington State Department of
Agriculture Standards for Italian Prunes (April 28, 1978), and the
Oregon State Department of Agriculture Standards for Italian Prunes
(October 5, 1977); the term ``diameter'' means the greatest dimension
measured at right angles to a line from the stem to the blossom end of
the fruit.
(e) The term Prunes means all varieties of plums, classified
botanically as Prunus domestica, except those of the President variety.
(f) The term importation means release from custody of the United
States Customs Service.
(g) Inspection and certification service is required for imports
and will be available in accordance with the regulation designating
inspection services and procedure for obtaining inspection and
certification (7 CFR 944.400).
(h) Any lot or portion thereof which fails to meet the import
requirements, and is not being imported for purposes of consumption by
charitable institutions, distribution by relief agencies, or commercial
processing into products, prior to or after reconditioning may be
exported or disposed of under the supervision of the Federal or
Federal-State Inspection Service with the costs of certifying the
disposal of such fresh prunes borne by the importer.
(i) It is determined that fresh prunes imported into the United
States shall meet the same minimum grade, size and quality requirements
as those established for fresh prunes under Marketing Order No. 924 (7
CFR part 924).
Dated: May 2, 1996.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-11459 Filed 5-7-96; 8:45 am]
BILLING CODE 3410-02-P
