[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