20756 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Proposed Rules

§ 911.329 [Amended]

3. In § 911.329, paragraph (a) is

amended by removing the words ‘‘No

handler’’ and adding in its place the

words ‘‘From January 1 through May 31

of each season, no handler’’.

§ 911.344 [Amended]

4. In § 911.344, paragraph (a), is

introductory text, is amended by

removing the words ‘‘No handler’’ and

adding in its place the words ‘‘From

January 1 through May 31 of each

season, no handler’’

PART 944—FRUITS, IMPORT

REGULATIONS

5. In § 944.209, paragraph (a) is

revised to read as follows:

§ 944.209 Lime Import Regulation 10.

(a) Applicability to imports. Pursuant

to section 8e of the act and Part 944–

Fruits; Import Regulations, the

importation into the United States from

January 1 through May 31 of any limes

is prohibited unless such limes meet the

minimum grade and size requirements

specified in § 911.344 Florida Lime

Regulation 43.

* * * * *

Dated: May 2, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96–11460 Filed 5–7–96; 8:45 am]

BILLING CODE 3410–02–P

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.

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 WashingtonOregon 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
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Proposed Rules 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

§ 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 11⁄4 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-forservice 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 § 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
20758 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Proposed Rules

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 § 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

§ 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 § 924.319, the introductory text

of paragraph (a) is revised to read as

follows:

§ 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 § 944.350, the section heading

and paragraphs (a)(1) and (a)(2) are

revised to read as follows:

§ 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:

§ 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 AgriFood 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 AgriFood 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 § 944.700 is added to read

as follows:

§ 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 twothirds of the surface of the fresh prune

is required to be purplish in color, and

such fresh prunes measure not less than

11⁄4 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;
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Proposed Rules 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 § 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

7 CFR Part 1160

[DA–96–07]

Fluid Milk Promotion Order; Invitation

To Submit Comments on Proposed

Amendments to the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This document invites written

comments on a proposal to amend the

Fluid Milk Promotion Order to modify

the term of the chairperson of the

National Fluid Milk Processor

Promotion Board. The proposal was

submitted by the National Fluid Milk

Processor Promotion Board which

contends the action is necessary to

enable it to operate more effectively.

DATES: Comments are due no later than

May 15, 1996.

ADDRESSES: Comments (two copies)

should be filed with the USDA/AMS/

Dairy Division, Promotion and Research

Staff, Room 2734, South Building, P.O.

Box 96456, Washington, DC 20090–

6456.

FOR FURTHER INFORMATION CONTACT:

Eugene E. Krueger, Head, Promotion

and Research Staff, USDA/AMS/Dairy

Division, Room 2734, South Building,

P.O. Box 96456, Washington, DC 20090–

6456, (202) 720–6909.

SUPPLEMENTARY INFORMATION: The

Regulatory Flexibility Act (5 U.S.C.

601–612) requires the Agency to

examine the impact of a proposed rule

on small entities. Pursuant to 5 U.S.C.

605(b), the Agricultural Marketing

Service has certified that this rule

would not have a significant economic

impact on a substantial number of small

entities. The proposed amendment

would modify the term of the

chairperson of the National Fluid Milk

Processor Promotion Board and would

not have an economic effect on any

entity engaged in the dairy industry.

The 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 rule is not intended

to have a 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 Fluid Milk Promotion Act of

1990, as amended, authorizes the Fluid

Milk Promotion Order. The Act

provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 1999K of the Act, any person

subject to a Fluid Milk Promotion 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 the law and request a

modification of the order or to be

exempted from the order. A person

subject to an order is afforded the

opportunity for a hearing on the

petition. After a 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 person is an inhabitant, or has his

principal place of business, has

jurisdiction to review the Secretary’s

ruling of the petition, provided a

complaint is filed not later than 20 days

after the date of the entry of the ruling.

In accordance with the Paperwork

Reduction Act (44 U.S.C. Chapter 35),

the forms and reporting and

recordkeeping requirements that are

included in the Fluid Milk Promotion

Order have been approved by the Office

of Management and Budget (OMB) and

were assigned OMB No. 0581–0093,

except for Board members’ nominee

information sheets that were assigned

OMB No. 0505–0001.

Statement of Consideration

Section 1160.209(a) of the Fluid Milk

Promotion Order currently provides that

the National Fluid Milk Processor

Promotion Board meet at least once a

year and elect from among its members

a chairperson to serve a term of one year

and not more than two consecutive

terms. The proposed amendment would

modify, from one year to a fiscal period,

the term of the chairperson and provide

that such chairperson may serve not

more than two consecutive fiscal

periods.

Currently, a term of office for the

chairperson of the National Fluid Milk

Processor Promotion Board is based on

an annual period, which expires on July

27, 1996, rather than a fiscal period. The