[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Rules and Regulations]
[Pages 40956-40959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20035]
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 924 and 944
[Docket No. FV95-924-1FR]
Fresh Prunes Grown in Washington and Oregon; Handling Requirement
Revision; Fruits; Import Regulations; Fresh Prune Import Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule changes 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 final
rule also establishes grade, size, and quality requirements for prune
variety plums (fresh prunes) imported into the United States. The
import requirements are issued pursuant to the authority in section 8e
of the amended Agricultural Marketing Agreement Act of 1937.
EFFECTIVE DATE: This final rule becomes effective September 6, 1996.
FOR FURTHER INFORMATION CONTACT: Anne M. Dec, Marketing Order
Administration Branch, AMS, USDA, P.O. Box 96456, room 2526-S,
Washington, D.C. 20090-6456; telephone: (202) 720-5127; or Teresa
Hutchinson, Northwest Marketing Field Office, AMS, USDA, 1220 S.W.
Third Avenue, room 369, Portland, Oregon 97204; telephone: (503) 326-
2725. Small businesses may request information on compliance with this
regulation by contacting: Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room
2523-S, Washington, D.C. 20090-6456; telephone (202) 720-2491, FAX
(202) 720-5698.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Order No. 924 (7 CFR Part 924), as amended, regulating the handling of
fresh prunes grown in Washington and 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 final rule is also issued under section 8e of the Act, which
provides that whenever certain specified commodities, including 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, and maturity requirements as
those in effect for the domestically produced commodities.
The Department of Agriculture (Department) is issuing this final
rule in conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This final rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with 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 will rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review 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 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 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 producers
are defined by the Small Business Administration (13 CFR 121.601) as
those whose annual receipts are less than $500,000 and small
agricultural service firms, which include fresh prune handlers and
importers, are defined as those whose annual receipts are less than
$5,000,000. A majority of these producers and handlers may be
classified as small entities.
Currently, the grade, size, and quality regulations under the order
are effective throughout the entire year. This final rule changes the
effective dates of these handling regulations to July 15 through
September 30 each year, so that the
[[Page 40957]]
regulatory period more closely coincides with the marketing season for
fresh prunes grown in Washington and Oregon. This period includes
additional time after the last day of harvest when some lots of fruit
may be kept in cold storage prior to shipment.
Consistent with section 8e of the Act, fresh prunes offered for
importation into the United States are to 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 states that, from July 15 through September 30 each year,
fresh prunes imported into the United States are required to meet the
same minimum grade, size, and quality requirements as those for fresh
prunes under the order. In addition, the reporting requirements that
importers would be required to comply with are the same as those
required for the importation of other commodities.
Therefore, the AMS has determined that this action will not have a
significant economic impact on a substantial number of 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 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 final rule changes 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 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 are
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 states that, from July 15 through September 30 each year,
fresh prunes imported into the United States are required to meet the
same minimum grade, size, and quality requirements as those for fresh
prunes under the order.
This rule adds 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
Parts 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 are
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 rule also establishes 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 will be subject to the
minimum grade, size and quality requirements effective under the order.
This is the same period that such requirements are 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 will not be subject to the import requirements.
Importers are 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 rule also authorizes 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, will
be excluded from the import requirements. Additionally, fresh prunes
imported for consumption by charitable institutions, distribution by
relief agencies, or commercial processing into products are exempt from
the 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
provides that such fresh prunes are 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 shall complete in triplicate, prior to
importation, an ``Importer's Exempt Commodity Form.'' One copy will be
held by the importer or customs broker. The second copy shall 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 shall accompany the exempt lot to the receiver.
The form can be obtained from the MOAB by calling (202) 720-6585 or
sending a fax to (202) 720-5698. The form shall be completed at the
time the commodity enters the United States. Information called for on
the ``Importer's Exempt Commodity Form'' shall 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
certificate),
(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),
[[Page 40958]]
(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 shall accompany the exempt lot to its
intended destination. The exempt receiver shall 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 will 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, can
be exported, disposed of in an exempt outlet following the procedure
described above, or otherwise 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 rule also amends 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 final rule
designates 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, 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 final
rule have been previously approved by the Office of Management and
Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35), and have been assigned OMB number 0581-0167.
The proposed rule concerning this action was published in the
Federal Register on May 8, 1996 (61 FR 20756). A 30-day comment period,
which ended June 7, 1996, was provided for interested persons. No
comments were received.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this final rule.
After consideration of all relevant matter presented, it is hereby
found that this rule, as hereinafter set forth, will tend to effectuate
the declared policy of the Act.
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
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 section 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 table
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
[[Page 40959]]
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;
(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: August 1, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-20035 Filed 8-6-96; 8:45 am]
BILLING CODE 3410-02-P
