[Federal Register Volume 59, Number 214 (Monday, November 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27517]


[[Page Unknown]]

[Federal Register: November 7, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944

[Docket No. FV93-932-3FIR]

 

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: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, with changes, the provisions of an interim final rule 
amending 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 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.

EFFECTIVE DATE: Effective on December 7, 1994.

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 20090-6456, telephone (202) 720-5127.

SUPPLEMENTARY INFORMATION: This 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 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 final rule in conformance with 
Executive Order 12866.
    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This final 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 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 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 interim final rule was issued on July 21, 1994, and published 
in the Federal Register [59 FR 38104, July 27, 1994], with an effective 
date of July 27, 1994. That rule amended Secs. 932.152, and 932.401 of 
regulations in effect under the order. That rule provided a 30-day 
comment period which ended August 26, 1994. No comments were received.
    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 
requirement that such olives be sized by weight prior to pitting.
    Prior to the interim final rule, Sec. 932.52 of the order and 
Sec. 932.152 of the regulations required handlers to maintain 
continuous in-line outgoing inspection for the handling of processed 
olives. Also, 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 Part 52.2]. As established, handlers will be permitted to use a 
QAP inspection procedure rather than 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. Prior to the interim final rule, Sec. 932.152 specified that 
all processed olives must be sized in accordance with the count-per-
pound designations established for canned whole ripe olives, and 
further required that such sizing be done prior to pitting. This 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 (Sec. 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.
    This rule changes the interim final rule published in the Federal 
Register July 27, 1994 [59 FR 38104]. That rule modified Table II in 
Sec. 932.152, paragraph (g)(1), to conform to rule changes made in 
1991. However, further changes were made to Table II in an interim 
final rule published in the Federal Register on September 13, 1994 [59 
FR 46907]. This final rule therefore conforms with the changes in the 
most recent interim final rule.
    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 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 final rule.
    After consideration of all relevant matter presented, including 
information and recommendations submitted by the committee and other 
available information, it is found that finalizing the interim final 
rule, with changes, as published in Federal Register [59 FR 38104], 
will tend to effectuate the declared policy of the Act.

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. Accordingly, the interim final rule amending 7 CFR Part 932 
which was published at 57 FR 38104 on July 27, 1994, is adopted as a 
final rule with the following change:
    Table II in Sec. 932.152(g)(1) is revised to read as follows:


Sec. 932.152  Outgoing regulations.

* * * * *
    (g) * * *
    (1) * *  * 

                   Table II.--Limited Use Size Olives                   
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                                               Average count range (per 
                  Variety                               pound)          
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Group 1, except Ascolano, Barouni, and St.    76-90, inclusive.         
 Agostino.                                                              
Group 1, Ascolano, Barouni, and St. Agostino  106-140, inclusive.       
Group 2, except Obliza......................  141-180, inclusive.       
Group 2, Obliza.............................  128-140, inclusive.       
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* * * * *

PART 944--FRUITS, IMPORT REGULATIONS

    3. Accordingly, the interim final rule amending 7 CFR Part 944 
which was published at 59 FR 38104 on July 27, 1994, is adopted as a 
final rule without change.

    Dated: November 1, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-27517 Filed 11-4-94; 8:45 am]
BILLING CODE 3410-02-P