[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Proposed Rules]
[Pages 20756-20759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11459]



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DEPARTMENT OF AGRICULTURE
7 CFR Parts 924 and 944

[Docket No. FV95-924-1PR]


Fresh Prunes Grown in Washington and Oregon: Proposed Handling 
Requirement Revision; Fruits; Import Regulations; Proposed Fresh Prune 
Import Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change 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 proposed rule would also establish grade, size, and quality 
requirements for prune variety plums (fresh prunes) imported into the 
United States. The proposed import requirements would be issued 
pursuant to the authority in section 8e of the amended Agricultural 
Marketing Agreement Act of 1937.

DATES: Comments must be received by June 7, 1996.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments should be sent in triplicate to the 
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, PO 
Box 96456, Washington, DC 20090-6456 or by FAX at (202) 720-5698. All 
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: Britthany E. Beadle, Marketing Order 
Administration Branch, AMS, USDA, PO Box 96456, room 2526-S, 
Washington, DC 20090-6456; telephone: (202) 720-5127; or Teresa 
Hutchinson, Northwest Marketing Field Office, AMS, USDA, 1220 SW Third 
Avenue, room 369, Portland, Oregon 97204; telephone: (503) 326-2725.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Order No. 924 (7 CFR part 924), as amended, regulating the handling of 
fresh prunes grown in specified counties of Washington and in Umatilla 
County, 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 proposed rule is also issued under section 8e of the Act, 
which provides that whenever certain specified commodities, including 
plums or 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, or 
maturity requirements as those in effect for the domestically produced 
commodities. The Secretary has determined that the minimum grade, 
quality, and size requirements for fresh prunes imported into the 
United States should be the same as those established for fresh prunes 
grown in Washington and Umatilla County, Oregon, under Marketing Order 
No. 924.
    The Department of Agriculture (Department) is issuing this proposed 
rule in conformance with Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This action is not intended to have retroactive 
effect. This proposed 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 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 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 proposed 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 service 
firms, which include fresh prune handlers and importers, have been 
defined by the Small Business Administration (13 CFR 121.601) as those 
whose annual receipts are less than $5,000,000, and small agricultural 
producers are defined as those whose annual receipts are less than 
$500,000. A majority of these handlers and producers may be classified 
as 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

[[Page 20757]]

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 proposed rule would change 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 proposed 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 would 
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 proposes that, from July 15 through September 30 each 
year, fresh prunes imported into the United States be required to meet 
the same minimum grade, size, and quality requirements as those for 
fresh prunes under the order.
    This proposed rule would add 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 
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 would 
be 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 proposed rule would also establish 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 would be 
subject to the minimum grade, size and quality requirements effective 
under the order. This is the same period that such requirements are 
proposed 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 would not be 
subject to the proposed import requirements.
    Importers would be 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 proposed rule would also authorize 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, would be excluded from the proposed import requirements. 
Additionally, fresh prunes imported for consumption by charitable 
institutions, distribution by relief agencies, or commercial processing 
into products would be exempt from the proposed 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 
proposes that such fresh prunes be 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 would complete in triplicate, prior to 
importation, an ``Importer's Exempt Commodity Form.'' One copy would be 
held by the importer or customs broker. The second copy would 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 would accompany the exempt lot to the receiver.
    The form could be obtained from the MOAB by calling (202) 720-6585 
or sending a fax to (202) 720-5698. The form would be completed at the 
time the commodity enters the United States. Information called for on 
the ``Importer's Exempt Commodity Form'' would 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 
certficate),
    (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),
    (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 would accompany the exempt lot to its 
intended destination. The exempt receiver would 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 would 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, 
could be exported, disposed of in an exempt outlet following the 
procedure described above, or otherwise

[[Page 20758]]

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 proposed rule would also amend 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 proposed rule would designate 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, would 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 proposed 
rule have been previously approved by the Office of Management and 
Budget (OMB) in accordance with the Paperwork Reduction Act of 1980 (44 
U.S.C. Chapter 35), and have been assigned OMB number 0581-0167.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    Based on the above, the Administrator of the AMS has determined 
that this action would not have a significant economic impact on a 
substantial number of small entities.
    A 30-day period is provided to allow interested persons to comment 
on this proposal. All written comments received within the comment 
period will be considered before a final determination is made on this 
matter.

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 
proposed to be 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 Sec. 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 tables 
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 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;

[[Page 20759]]

    (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: May 2, 1996.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-11459 Filed 5-7-96; 8:45 am]
BILLING CODE 3410-02-P