Dried Prunes Produced in California and Dried Prunes Imported into the United States; Proposed Rule to Establish a Separate Tolerance for Prunes Affected by Brown Rot

SUMMARY: This proposed rule would establish a separate brown rot

tolerance for dried prunes produced in California and for imported

dried prunes. Currently, the combined allowance for mold, imbedded

dirt, insect infestation and decay cannot exceed 5 percent for inbound

and outbound inspections. This rule would specify a separate tolerance

of 3 percent for brown rot affected prunes, within the combined

tolerance allowance of 5 percent. The proposed tolerance should benefit

producers, handlers, and consumers, and foster continued growth of the

market for dried prunes. As provided under section 8e of the

Agricultural Marketing Agreement Act of 1937, a corresponding change

should be made in the prune import regulation.

DATES: Comments must be received on or before June 17, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule to: Docket Clerk, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456.

Three copies of all written material shall be submitted, and they will

be made available for public inspection at the Office of the Docket

Clerk during regular business hours. All comments should reference the

docket number and the date and page number of this issue of the Federal

Register.

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, DC 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 proposed 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 proposed rule, which would also amend the prune import

regulation (Sec. 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 U.S. Department of Agriculture (Department) is issuing this

rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This proposed rule is not intended to have

retroactive effect. This proposed rule would 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 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 action 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 2 importers of dried prunes are subject to import regulations and

would 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 action would amend paragraph (a) of Sec. 993.601 of the

California dried prune marketing order's rules and regulations. The

proposal is based on a unanimous recommendation of the Prune Marketing

Committee (Committee), the agency responsible for local administration

of the order, 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 proposal would

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 would benefit through increased sales, which

is expected to improve growers' returns. Handlers would benefit by

paying for fewer prunes that have no value and by lowering their

sorting costs. Finally, this recommendation would result in a

consistently higher quality product being shipped, which would benefit

consumers.

This tolerance would also apply 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, subject to concurrence by the United States Trade

Representative. Because this proposed rule would establish an

additional tolerance for dried prunes under the domestic handling

regulation, a corresponding change to the import prune regulation (7

CFR 999.200) is needed and is proposed in this rule.

The Committee recommended that this action 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. The

Committee believes that by delaying the effective date until the 1994-

95 season, growers will have ample opportunity to improve their

cultural practices to reduce their incidence of brown rot next year.

Based on the above, the Administrator of the AMS has determined

that this proposed rule would not have a significant economic impact on

a substantial number of small entities.

A 30-day comment period is provided to allow interested persons to

respond to this proposal. All written comments received within the

comment period will be considered before a final determination is made

on this matter.

In accordance with section 8e of the Act, the United States Trade

Representative has concurred with the issuance of this proposed rule.

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 proposed to be 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: May 12, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-12093 Filed 5-17-94; 8:45 am]

BILLING CODE 3410-02-P