[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                   
------------------------------------------------------------------------
              Variety                  Average count range (per pound)  
------------------------------------------------------------------------
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.                
------------------------------------------------------------------------

* * * * * 
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