Dried Prunes Produced in California and Dried Prunes Imported Into the United States; Final Rule Establishing a Separate Tolerance for Prunes Affected by Brown Rot

DEPARTMENT OF AGRICULTURE

7 CFR Parts 993 and 999

[Docket No. FV93-993-2FR]

Dried Prunes Produced in California and Dried Prunes Imported

Into the United States; Final Rule Establishing a Separate Tolerance

for Prunes Affected by Brown Rot

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes a separate brown rot tolerance for

dried prunes produced in California and for dried prunes imported into

the United States. This rule specifies a separate tolerance of 3

percent for brown rot affected prunes, within the combined tolerance

allowance of 5 percent. The separate tolerance should benefit

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

market for dried prunes. This rule is based on a unanimous

recommendation of the Prune Marketing Committee (Committee), which is

responsible for local administration of the order. As provided under

section 8e of the Agricultural Marketing Agreement Act of 1937, a

corresponding change is being made in the prune import regulation.

EFFECTIVE DATE: August 1, 1994.

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, D. C. 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 final 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 final rule, which also amends the prune import regulation

(section 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 Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This final rule has been reviewed under Executive Order 12778,

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

effect. This 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/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 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 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. 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 two importers of dried prunes are subject to import regulations

and will 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 rule revises Sec. 993.601 of Subpart--Grade Regulations and is

based on a unanimous recommendation of the Committee 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 rule will 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 will benefit through increased sales, which

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

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

sorting costs. Finally, this rule will result in a consistently higher

quality product being shipped, which will benefit consumers.

This tolerance also applies 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. Because this final rule establishes an additional

tolerance for dried prunes under the domestic handling regulation, a

corresponding change to the import prune regulation [7 CFR part

999.200] is also included in this rule.

The Committee recommended that this rule 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.

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

that this final rule will not have a significant economic impact on a

substantial number of small entities.

The proposed rule concerning this action was published in the

Federal Register on May 18, 1994, [59 FR 25841]. Comments on the

proposed rule were invited from interested persons until June 17, 1994.

No comments were received.

After consideration of all available information, it is found that

the action, as hereinafter set forth, will tend to effectuate the

declared policy of the Act.

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

Representative has concurred with the issuance of this final rule.

Pursuant to 5 U.S.C. 553, it is also found and determined that good

cause exists for not postponing the effective date of this action until

30 days after publication in the Federal Register because: (1) This

action was unanimously recommended by the Committee; (2) the 1994-95

crop year begins August 1, 1994, and this rule should be effective

promptly to cover as many of the 1994-95 season prunes as possible; and

(3) the proposed rule provided a 30-day comment period and no comments

were received.

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 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: July 21, 1994.

Terry C. Long,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-18214 Filed 7-26-94; 8:45 am]

BILLING CODE 3410-02-P