[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18215]
[[Page Unknown]]
[Federal Register: July 27, 1994]
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944
[Docket No. FV93-932-3IFR]
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: Interim final rule with request for comments.
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SUMMARY: This interim final rule amends 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 current 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.
DATES: Effective on August 1, 1994. Comments which are received by
August 26, 1994 will be considered prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2525-S, Washington DC 20090-6456; or by facsimile at 202-720-5698.
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: 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, 20090-64565, telephone (202) 720-5127.
SUPPLEMENTARY INFORMATION: This interim 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 interim 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 interim final rule in conformance
with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12778, Civil Justice Reform. This interim final rule is not intended to
have retroactive effect. This interim 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 interim 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 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
current requirement that such olives be sized by weight prior to
pitting.
Pursuant to Sec. 932.52 of the order, and Sec. 932.152 of the
current regulations, handlers are required to maintain continuous in-
line outgoing inspection for the handling of processed olives. 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 52.2]. As established, handlers will be permitted to use a QAP
inspection procedure rather than the currently-mandated 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. Section 932.152 currently specifies that all processed
olives must be sized in accordance with the count-per-pound
designations established for canned whole ripe olives, and further
requires that such sizing be done prior to pitting. This interim 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 (section
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.
The outgoing regulations contain a table pertaining to size
certification of limited size olives for limited use styles at
Sec. 932.152(g)(1). In 1991, the committee recommended and the
Secretary approved modifications in the sizes of limited use olives.
While such modifications were reflected elsewhere in the regulations, a
conforming change was not made in Table II of Sec. 932.152(g)(1). This
rule corrects the table, bringing it into conformance with the rules as
they were modified in 1991.
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 interim 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 interim final
rule.
After consideration of all relevant matter presented, including
information and recommendations 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.
Pursuant to 5 U.S.C. 553, it is also found and determined, upon
good cause, that it is impracticable, unnecessary, and contrary to the
public interest to give preliminary notice prior to putting this rule
into effect, and that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register because: (1) This rule relaxes requirements currently
in effect; (2) this rule should be in effect as soon as possible
because handlers are currently processing olives; (3) this rule was
unanimously recommended by the committee at a public meeting; and (4)
this rule provides a 30-day comment period, and any comments received
will be considered prior to finalization of this rule.
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. Section 932.152 is amended by revising paragraphs (a), (b),
(f)(2), (f)(3), and Table II in paragraph (g)(1) to read as follows:
Sec. 932.152 Outgoing regulations.
(a) Inspection stations. Processed olives shall be sampled and
graded only at an inspection station which shall be any olive
processing plant having facilities for in-line inspection which are
satisfactory to the Inspection Service and the committee, or at an
olive processing plant which has an approved Quality Assurance Program
in effect.
(b) Inspection--(1) General. Inspection of packaged olives for
conformance with Sec. 932.52 shall be by a Quality Assurance Program
approved by the Processed Products Branch (PPB), USDA; or by in-line
inspection. A PPB approved Quality Assurance Program shall be pursuant
to a Quality Assurance contract as referred to in Sec. 52.2. During in-
line inspection, no handler shall perform the final processing
operations which immediately precede the packaging of the olives unless
an inspector is present when the olives are so processed.
(2) Pitting operations. If olives are sized prior to pitting and
such olives meet the size requirements for packaging as canned whole
ripe olives but are held in containers prior to final processing, such
olives shall be identified to the satisfaction of the Inspection
Service and be held separate and apart from other olives until such
time as they are submitted for inspection prior to being packaged. If
olives are sized prior to pitting and such olives do not meet the size
requirements for packaging as canned whole ripe olives but meet the
applicable size requirements specified in Sec. 932.52 for halved,
sliced, chopped, or minced styles of canned ripe olives, such olives
shall be identified to the satisfaction of the Inspection Service and
be held separate and apart from other olives until such time as they
are submitted for inspection prior to being packaged.
* * * * *
(f) Size designations (1) * * *
(2) The size of the canned whole olives shall conform with the
applicable count per pound range indicated in Table I of paragraph
(f)(1) of this section. When the count per pound of whole olives falls
between two count ranges, the size designation shall be that of the
smaller size. The average count for canned whole ripe olives is
determined from all containers in the sample and is calculated on the
basis of the drained weight of the olives.
(3) Pitted olives must meet the size requirements for canned whole
olives specified in paragraphs (f)(1) and (f)(2) of this section prior
to pitting, or must meet the size designations specified in
Sec. 52.3754 of the U.S. Standards for Grades of Canned Ripe Olives
subsequent to pitting, subject to the following minimum size
requirements:
(i) Variety group 1 olives, except Ascolano, Barouni, and St.
Agostino varieties, shall be at least ``Extra Large;''
(ii) Variety group 1 olives of the Ascolano, Barouni, and St.
Agostino varieties shall be at least ``Large;''
(iii) Variety group 2 olives, except the Obliza variety, shall be
at least ``Small;''
(iv) Variety group 2 olives of the Obliza variety shall be at least
``Medium.''
(g) * * *
(1) * * *
Table II.--Limited Use Size Olives
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Variety Average count range (per pound)
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Group 1, except Ascolano, Barouni, 76-105, inclusive.
and St. Agostino
Group 1, Ascolano, Barouni, and St. 106-180, inclusive.
Agostino
Group 2, except Obliza 141-205, inclusive.
Group 2, Obliza 128-180, inclusive.
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* * * * *
PART 944--FRUITS, IMPORT REGULATIONS
3. Section 944.401 is amended by revising paragraphs (b)(7) through
(b)(11) to read as follows:
Sec. 944.401 Olive Regulation 1.
(a) * * *
(b) * * *
(7) Canned pitted ripe olives of Variety Group 1, except the
Ascolano, Barouni, and St. Agostino varieties, shall be at least
``Extra Large'' as defined in Sec. 52.3754 of the U.S. Standards for
Grades of Canned Ripe Olives.
(8) Canned pitted ripe Variety Group 1 olives of the Ascolano,
Barouni, and St. Agostino varieties shall be at least ``Large'' as
defined in Sec. 52.3754 of the U.S. Standards for Grades of Canned Ripe
Olives.
(9) Canned pitted ripe olives of Variety Group 2, except the Obliza
variety, shall be at least ``Small'' as defined in Sec. 52.3754 of the
U.S. Standards for Grades of Canned Ripe Olives.
(10) Canned pitted ripe Variety Group 2 olives of the Obliza
variety shall be at least ``Medium'' as defined in Sec. 52.3754 of the
U.S. Standards for Grades of Canned Ripe Olives.
(11) Canned pitted ripe olives not identifiable as to variety or
variety group shall be at least ``Small'' as defined in Sec. 52.3754 of
the U.S. Standards for Grades of Canned Ripe Olives.
* * * * *
Dated: July 21, 1994.
Terry C. Long,
Acting Deputy Director Fruit and Vegetable Division.
[FR Doc. 94-18215 Filed 7-26-94; 8:45 am]
BILLING CODE 3410-02-P
