[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: 94-18214]


[[Page Unknown]]

[Federal Register: July 27, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Parts 993 and 999

[Docket No. FV93-993-2FR]

 

Dried Prunes Produced in California and Dried Prunes Imported 
Into the United States; Final Rule Establishing a Separate Tolerance 
for Prunes Affected by Brown Rot

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes a separate brown rot tolerance for 
dried prunes produced in California and for dried prunes imported into 
the United States. This rule specifies a separate tolerance of 3 
percent for brown rot affected prunes, within the combined tolerance 
allowance of 5 percent. The separate tolerance should benefit 
producers, handlers, and consumers, and foster continued growth of the 
market for dried prunes. This rule is based on a unanimous 
recommendation of the Prune Marketing Committee (Committee), which is 
responsible for local administration of the order. As provided under 
section 8e of the Agricultural Marketing Agreement Act of 1937, a 
corresponding change is being made in the prune import regulation.

EFFECTIVE DATE: August 1, 1994.

FOR FURTHER INFORMATION CONTACT: Valerie L. Emmer, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P. O. 
Box 96458, Room 2523-S., Washington, D. C. 20090-6456; telephone: (202) 
205-2829, or FAX (202) 720-5698; or Richard P. Van Diest, California 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Division, AMS, USDA, 2202 Monterey Street, Suite 102B, 
Fresno, California 93721, telephone: (209) 487-5901, OR FAX (202) 487-
5906; or

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Agreement and Order No. 993 [7 CFR Part 993], both as amended, 
hereinafter referred to as the ``order'', regulating the handling of 
dried prunes produced in California. The marketing agreement and order 
are authorized 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, which also amends the prune import regulation 
(section 999.200), is also issued pursuant to section 8e of the Act. 
Section 8e provides that whenever certain specified commodities, 
including prunes, are regulated under a Federal marketing order, 
imports of that commodity must meet the same or comparable grade, size, 
quality, and maturity requirements as those in effect for the 
domestically produced commodity. Marketing order No. 993, as amended [7 
CFR Part 993] prescribes grade and size requirements for dried prunes 
produced in California.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. This 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/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 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 requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of 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. Thus, they also have small 
entity orientation, and impact both small and large business entities 
in a manner comparable to rules issued under such marketing orders.
    There are approximately 20 handlers of dried prunes produced in 
California subject to regulation under the marketing order, and 
approximately 1,360 producers in the regulated area. In addition, at 
least two importers of dried prunes are subject to import regulations 
and will be affected by this action. 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 are defined as those whose annual receipts 
are less than $5,000,000. The majority of handlers and producers of 
California dried prunes may be classified as small entities. The 
majority of the importers of dried prunes may also be classified as 
small entities.
    This rule revises Sec. 993.601 of Subpart--Grade Regulations and is 
based on a unanimous recommendation of the Committee and other 
available information.
    Paragraphs (a) and (b) of Sec. 993.49 of the marketing order 
provide the Secretary the authority to modify the minimum standards for 
natural condition prunes received from producers and dehydrators 
(inbound inspection). Likewise, paragraphs (a) and (b) of Sec. 993.50 
provide the Secretary authority for the modification of the minimum 
standards for prunes that are shipped or otherwise disposed of by a 
handler (outbound inspection). Whenever a regulation is established 
that increases grade requirements, it normally applies to both natural 
condition (unprocessed) prunes and processed (cleaned or treated with 
water or steam) prunes. Minimum grade standards are specified under 
Sec. 993.97 and have been modified in the rules and regulations under 
Secs. 993.149 and 993.150.
    Under current procedures for handling and scoring (inspecting) 
prunes, clusters of brown rot affected prunes are removed from inbound 
samples during the initial grading process and are not scored against 
the lot. However, single prunes affected with brown rot are often not 
removed during initial grading and are subsequently scored as defective 
during inspection. For both incoming and outgoing prune inspections, 
the combined defect allowance, which includes mold, imbedded dirt, 
insect infestation and decay, cannot exceed 5 percent.
    There has been a high incidence of brown rot infection in the 1992 
and 1993 California prune crops. Brown rot is caused by two closely 
related fungi in the blossoms and fruit of prunes and other stone 
fruits. Success of treatment varies, making control of brown rot very 
difficult. Previously infected orchards are more susceptible to re-
infection, and, thus, a reoccurrence of brown rot in the 1994 prune 
crop is expected.
    Harvested prunes affected by brown rot cannot be marketed as prunes 
and, thus, have no value to handlers, since even blending them with 
good prunes for the manufacture of prune products, such as prune juice 
and concentrate, yields an unacceptable flavor.
    Because of the expected high incidence of prunes affected by brown 
rot in the 1994 crop, the Committee met on December 8, 1993, and 
unanimously recommended establishing a separate defect tolerance of 3 
percent for brown rot to be included in the current 5 percent combined 
defects tolerance for mold, imbedded dirt, insect infestation and 
decay. Finally, the Committee recommended that the new tolerance be 
applied to both inbound and outbound inspections. This rule will have 
the effect of lowering the brown rot tolerance from the current maximum 
of 5 percent (assuming no other defects) to a maximum of 3 percent.
    The Committee believes the addition of specific brown rot 
tolerances will encourage growers to improve their cultural practices 
to reduce the incidence of brown rot in their 1994 crops. In addition, 
notification of the new requirements early in the growing season would 
provide growers with sufficient time to implement cultural practices 
that should reduce the incidence of brown rot in their prunes. The 
California prune industry will benefit through increased sales, which 
is expected to improve growers' returns. Handlers will benefit by 
paying for fewer prunes that have no value and by lowering their 
sorting costs. Finally, this rule will result in a consistently higher 
quality product being shipped, which will benefit consumers.
    This tolerance also applies to imported prunes. Section 8e of the 
Act requires that whenever grade, size, quality or maturity 
requirements are in effect for dried prunes under a domestic marketing 
order, imported dried prunes must meet the same or comparable 
requirements. Because this final rule establishes an additional 
tolerance for dried prunes under the domestic handling regulation, a 
corresponding change to the import prune regulation [7 CFR part 
999.200] is also included in this rule.
    The Committee recommended that this rule become effective by early 
July 1994, to ensure that implementation be in place by the beginning 
of the 1994-95 crop year, which begins August 1, 1994.
    Based on the above, the Administrator of the AMS has determined 
that this final rule will not have a significant economic impact on a 
substantial number of small entities.
    The proposed rule concerning this action was published in the 
Federal Register on May 18, 1994, [59 FR 25841]. Comments on the 
proposed rule were invited from interested persons until June 17, 1994. 
No comments were received.
    After consideration of all available information, it is found that 
the action, as hereinafter set forth, will tend to effectuate the 
declared policy of the Act.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this final rule.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this action until 
30 days after publication in the Federal Register because: (1) This 
action was unanimously recommended by the Committee; (2) the 1994-95 
crop year begins August 1, 1994, and this rule should be effective 
promptly to cover as many of the 1994-95 season prunes as possible; and 
(3) the proposed rule provided a 30-day comment period and no comments 
were received.

List of Subjects

7 CFR Part 993

    Marketing agreements, Plums, Prunes, Reporting and recordkeeping 
requirements

7 CFR Part 999

    Import regulations, Dates, Filberts, Prunes, Raisins, Walnuts.
    For the reasons set forth in the preamble, 7 CFR parts 993 and 999 
are amended as follows:
    1. The authority citation for 7 CFR parts 993 and 999 continues to 
read as follows:

    Authority: 7 U.S.C. 601-674.

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

    2. Paragraph (a) of Sec. 993.601 is revised to read as follows:


Sec. 993.601  More restrictive grade regulation.

    (a) Incoming and outgoing regulation. Whenever the estimated season 
average price to producers for prunes does not exceed the parity level 
specified in section 2(1) of the act, the minimum standards which 
handlers' receipts of natural condition prunes are required to meet 
pursuant to Sec. 993.49(a) shall be the standards specified in 
Sec. 993.49(a) and Sec. 993.97(I), and the minimum standards which 
handlers' shipments or other final dispositions of prunes are required 
to meet pursuant to Sec. 993.50(a) shall be the applicable standards 
set forth in Sec. 993.97 Exhibit A; minimum standards, except that the 
following revised tolerance allowances shall apply in lieu of the 
tolerance allowances prescribed in paragraphs I C(2), II C(3), I C(5) 
and II C(6) of Sec. 993.97 as follows:
    (1) The combined tolerance allowance for off-color, inferior meat 
condition, end cracks, fermentation, skin or flesh damage, scab, 
burned, mold, imbedded dirt, insect infestation, and decay shall not 
exceed fifteen percent (15%), except that the first eight percent (8%) 
of end cracks shall be given one-half value and any additional 
percentage of end cracks shall be given full value.
    (2) The combined tolerance allowance for mold, brown rot, imbedded 
dirt, insect infestation, and decay shall not exceed five percent (5%), 
and, within such tolerance, brown rot shall not exceed three percent 
(3%).
* * * * *

PART 999--SPECIALTY CROPS; IMPORT REGULATIONS

    3. Section 999.200 is amended by revising paragraph C.(3) of 
Exhibit A--Grade Requirements to read as follows:


Sec. 999.200  Regulation governing the importation of prunes.

* * * * *

Exhibit A

Grade Requirements

* * * * *
    C. * * *
    (3) The combined tolerance allowance for mold, brown rot, imbedded 
dirt, insect infestation, and decay shall not exceed five percent (5%), 
and, within such tolerance, brown rot shall not exceed three percent 
(3%).
* * * * *
    Dated: July 21, 1994.
Terry C. Long,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-18214 Filed 7-26-94; 8:45 am]
BILLING CODE 3410-02-P