[Federal Register Volume 62, Number 5 (Wednesday, January 8, 1997)]
[Rules and Regulations]
[Pages 1032-1034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-279]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 33

[Docket No. FV96-33-1 FIR]


Regulations Issued Under the Export Apple and Pear Act; 
Relaxation of Grade Requirements for Apples and Pears Shipped to 
Pacific Ports of Russia

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, with appropriate modifications, the provisions of an 
interim final rule relaxing the minimum grade requirements issued under 
the Export Apple and Pear Act for U.S.-grown apples and pears shipped 
to Pacific ports of Russia. Container marking provisions also are 
relaxed for such shipments. These changes are designed to develop 
Eastern Russia as an export market for apples and pears. This rule was 
recommended by the Northwest Horticultural Council (Council), an 
organization representing the Northwest fruit industry.

EFFECTIVE DATE: This final rule becomes effective January 9, 1997.

FOR FURTHER INFORMATION CONTACT: Dennis L. West, Marketing Specialist, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Division, AMS, USDA, 1220 SW Third Avenue, 
room 369, Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax # 
(503) 326-7440; or William R. Addington, Marketing Specialist, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, room 2525-S, Washington, D.C. 20090-6456; 
telephone: (202) 720-2412, Fax # (202) 720-5698. 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 rule is issued under authority of the 
Export Apple and Pear Act, as amended, [7 U.S.C. 581-590], hereinafter 
referred to as the ``Act.'' This rule amends ``Regulations Issued Under 
Authority of the Export Apple and Pear Act'' [7 CFR part 33].
    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This rule has been reviewed under Executive Order 12988, 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. There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of this rule.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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.
    The Act and regulations effective thereunder apply to exporters and 
export carriers of apples and pears. In the United States, there are 
approximately 450 firms which pack and export apples and 300 firms 
which pack and export pears that are potentially subject to regulations 
under the authority of the Act. Small agricultural service firms, which 
include firms that pack and export apples and pears, have been defined 
by the Small Business Administration (13 CFR 121.601) as those having 
annual receipts of less than $5,000,000. The majority of apple and pear 
exporters regulated under the Act may be classified as small entities. 
This rule relaxes the minimum grade requirements issued under the Act 
for U.S.-grown apples and pears shipped only to Pacific ports of 
Russia. Container marking provisions also are relaxed for such 
shipments. This rule provides all exporters additional flexibility in 
marketing apples and pears of different grades and quality in Russian 
port cities and areas along the Pacific Ocean. These changes are 
designed to develop export markets for apples and pears in these areas. 
This rule does not preclude shipments of apples and pears of higher 
than the minimum quality from being shipped to Russian Pacific ports. 
This benefits both large and small exporters of apples and pears. 
Therefore, the AMS has determined that this action will not have a 
significant economic impact on a substantial number of small entities.
    Section 33.10 of the ``Regulations Issued Under Authority of the 
Export Apple and Pear Act'' establishes minimum grade and container 
marking requirements for export shipments of apples and pears. Prior to 
the issuance of the interim final rule, export shipments of apples were 
required to meet a minimum grade of U.S. No. 1 or U.S. No. 1 Early as 
specified in the United States Standards for Grades of Apples (7 CFR 
part 51, sections 51.300-51.323). Exports of summer and fall pears were 
required to meet a minimum grade of U.S. No. 2 as specified in the 
United States Standards for Grades of Summer and Fall Pears (7 CFR part 
51, sections 51.1260-51.1280). Exports of winter pears were required to 
meet a minimum grade of U.S. No. 2 as specified in the United States 
Standards for Grades of Winter Pears (7 CFR part 51, sections 51.1300-
51.1323). Additional restrictions for apple maggot and San Jose scale 
apply to both apples and pears.
    This final rule continues in effect the reduction of the minimum 
grade requirements, as follows:
    The minimum grade for fresh apples exported to Russian Pacific 
ports is reduced to U.S. Utility grade (7 CFR part 51, section 51.303) 
or U.S. No. 1 Hail (7 CFR part 51, section 51.302(b)) for apples 
damaged by hail.
    The minimum requirements for summer and fall pears exported to 
Russian Pacific ports are listed in the regulatory text of this final 
rule. The requirements provide that the pears be of one variety that 
are mature, hand picked, clean, sound and free from hard-end; and free 
from serious damage caused by broken skin, insects, disease, hail 
marks, limbrubs, heavy russet, or other means; and not so excessively 
elongated or flattened as to preclude the cutting of one good half. The 
requirements also include necessary definitions and explanations of 
some provisions and a list of tolerances which are applied to each lot 
at the time of packing.
    Finally, the minimum requirements for winter pears exported to 
Russian Pacific ports also are listed in the regulatory text of this 
final rule. The requirements provide that the pears be of one variety 
which are mature, hand

[[Page 1033]]

picked, clean, sound, not very seriously misshapen, free from black 
end, free from damage caused by hard end, broken skins, and free from 
serious damage caused by cork spot or bruises. ``Very seriously 
misshapen'' means that the pear is excessively flattened, elongated for 
the variety, or is constricted or deformed so it will not cut one good 
half or two fairly uniform quarters. The requirements also include 
necessary definitions and explanations of some provisions and a list of 
tolerances which are applied to each lot at the time of packing.
    Handlers may ship apples and pears of higher grade quality than the 
minimum requirements established in this regulation.
    The additional restrictions for apple maggot and San Jose scale 
continue to apply to apples and pears shipped to any foreign 
destination.
    The Council, an organization that represents a substantial portion 
of the fruit industry in the Northwest States of Oregon, Washington, 
and Idaho, recommended these changes in the current export regulations.
    The Council advised that a change in requirements is needed to 
develop export markets for apples and pears to Pacific ports of Russia. 
According to the Council, exporters indicate that there is a demand in 
this relatively new export market of Eastern Russia for apples and 
pears of a lower grade than the previous requirements allowed. This 
change will increase sales opportunities in a market willing to accept 
apples and pears that are lower in overall quality and less uniform in 
appearance than most export markets will accept.
    The Council reported that weather and growing conditions are 
expected to adversely affect the appearance and quality of a 
significant portion of the 1996 pear crop. The Council believes this 
change will facilitate market development efforts for apples and pears 
to Pacific ports of Russia. Apples and pears which are not shipped for 
fresh consumption in either domestic or foreign markets are usually 
disposed of in processing outlets, such as juice. Processing outlets 
are not normally as profitable as fresh market outlets.
    The interim final rule concerning this action was published in the 
September 26, 1996, Federal Register (61 FR 50421), with a 30-day 
comment period ending October 28, 1996. One comment was received in 
favor of the interim final rule suggesting several revisions.
    The comment was submitted by Northwest Fruit Exporters (NFE), a 
non-profit organization, whose members grow, pack, ship, and export 
fresh apples and pears regulated under the Act. NFE members are located 
in Washington, Oregon, and Idaho. NFE suggested that the U.S. Utility 
grade not be added as an option for apple exports because the intent of 
the rule is to allow shipments of hail damaged apples. NFE suggested 
using U.S. No. 1 Hail grade which is specifically designed to allow 
shipment of hail damaged apples. NFE stated further that the Utility 
grade makes an allowance for other quality factors but remains 
restrictive regarding hail damaged apples. The Department believes that 
it would not be appropriate to remove the U.S. Utility grade because it 
allows exporters the opportunity to sell apples of a lower grade even 
though they are not hail damaged. This provision is intended to provide 
exporters with flexibility. Therefore, no change is being made to the 
rule in response to this comment.
    NFE pointed out the word ``apples'' is incorrectly used in 
paragraph (b) in Section 33.10. The paragraph refers to pears. The 
Department will make this correction in the regulatory text.
    NFE pointed out that the proposed general definition of ``damage by 
hard end'' does not apply to the quality requirements for winter pears 
as stated in Section 33.10 (b)(2) and should be replaced with language 
commonly used to describe damage to winter pears. The following 
language was recommended: ``Damage by skin break means any pear with 
one skin break larger than \3/16\ inch in diameter or depth, or with 
more than one skin break \1/8\ inch or larger in diameter or depth. 
Such pear shall be considered damaged, and scored against the grade 
tolerance.'' The Department concurs with this recommended change. The 
regulatory text will be modified accordingly.
    NFE further suggested additional language establishing grade defect 
lot tolerances be included under Section 33.10(b)(2) because grade 
defect tolerances for a lot of pears were omitted. The Department 
inadvertently omitted lot tolerances for pears and therefore, the 
regulatory text will be modified accordingly.
    NFE went on to suggest that grade defect tolerances are applicable 
at the time of packing; however, subsequent to storage and/or transit, 
only permanent type quality defects should be considered as grade 
defects and applied to the stated grade tolerance. NFE stated that the 
provision ``condition after storage or transit'' exists in the current 
U.S. Standards for Grades of Winter Pears and a new paragraph should be 
added to section 33.10 to capture this type of language. The Department 
recognizes that this provision currently exists in the U.S. Standards 
for Grades of Winter Pears as well as in the U.S. Standards for Grades 
of Summer/Fall pears and apples. For the sake of clarity, the 
regulatory text will be modified by adding a new paragraph (c) to state 
that decay, scald or any other deterioration which may have developed 
on apples or pears after they have been in storage or transit shall be 
considered as affecting condition and not the grade.
    Finally, NFE suggested that requirements be modified to permit 
shipments of U.S. No. 1 Hail grade apples to Mexico, using the same 
rationale and justification for this request as stated for shipments of 
U.S. No. 1 Hail grade apples to Russia. The Department believes this 
recommendation is beyond the scope of the interim final rule.
    After analyzing the comment received and other available 
information, the Department finds that this final rule is appropriate.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because: (1) This rule continues in 
effect a relaxation of the grade requirements for apples and pears 
shipped to Pacific ports of Russia; (2) exporters have indicated that 
sales opportunities exist in Eastern Russia and shipments have already 
begun to take advantage of these opportunities; (3) apples and pears 
are shipped throughout the year, and this rule should be in effect 
promptly so exporters can make marketing plans; and (4) a 30-day 
comment period was provided for in the interim final rule and 
recommended modifications should be implemented as soon as possible.

List of Subjects in 7 CFR Part 33

    Administrative practice and procedure, Apples, Exports, Pears, 
Reporting and record keeping requirements.

    Accordingly, the interim rule amending 7 CFR part 33 which was 
published at 61 FR 50421 on September 26, 1996, is adopted as a final 
rule with the following changes:

PART 33--EXPORT APPLE AND PEAR ACT

    1. The authority citation for 7 CFR part 33 continues to read as 
follows:

    Authority: 7 U.S.C. 581-590.


    2. In Sec. 33.10, paragraphs (c) and (d) are redesignated as (d) 
and (e), respectively; a new paragraph (c) is added; and paragraph (b) 
is revised to read as follows:

[[Page 1034]]

Sec. 33.10  Minimum requirements.

* * * * *
    (b) Pears grade at least U.S. No. 2 as specified in the United 
States Standards for Summer and Fall Pears, such as Bartlett, Hardy, 
and other similar varieties (Sections 51.1260-51.1280 of this chapter), 
or in the United States Standards for Winter Pears, such as Anjou, 
Bosc, Comice, and other similar varieties (Sections 51.1300-51.1323 of 
this chapter), do not contain apple maggot, and do not have more than 2 
percent, by count, of pears with apple maggot injury, nor more than 2 
percent, by count, of pears infested with San Jose scale or scale of 
similar appearance: Provided, That the minimum quality requirements for 
pears exported to Pacific ports of Russia are as follows:
    (1) Summer and fall pears shall be of one variety which are mature, 
hand picked, clean, sound and free from hard- end; and free from 
serious damage caused by broken skin, insects, disease, hail marks, 
limbrubs, heavy russet, or other means; and shall not be so excessively 
elongated or flattened as to preclude the cutting of one good half. 
Broken skin must not exceed 1/4 inch in diameter. The following 
definitions shall apply to all varieties:
    Clean means reasonably free from dust, dirt, or honey dew.
    Free from serious damage means defects when taken singly or 
collectively shall not seriously affect the edible or culinary value of 
the fruit.
    Hand picked means that pears do not show evidence of rough handling 
or of having been on the ground.
    Hard-end means pears which show an abnormally yellow or green color 
at the blossom end or an abnormally smooth rounded base with little or 
no depression at the calyx, or if the flesh near the calyx is 
abnormally dry and tough or woody. Pears affected by hard-end shall be 
considered defects. Rat-tail shaped pears, or second bloom pears that 
are tough or ridged shall be considered defects. At the time of 
packing, not more than 10 percent, by count, of any lot may be below 
the requirements of the grade, and not more than one-tenth of this 
amount or 1% shall be allowed for decay and/or breakdown. For a 
tolerance of 10 percent or more, individual packages in any lot may 
contain not more than one and one-half times the tolerance specified, 
except that when the package contains 15 specimens or less, individual 
packages may contain not more than double the tolerance specified. For 
a tolerance of less than 10 percent, individual packages in any lot may 
contain not more than double the tolerance specified, provided at least 
one specimen which does not meet the requirements shall be allowed in 
any one package. Slight imperfections which are not discernible in good 
commercial sorting practice shall not be considered as defects. Small 
inconspicuous skin breaks of less than \1/8\ inch in diameter or depth 
shall not be considered as damage, and not more than 15 percent of the 
pears in any container may have not more than one skin break from \1/8\ 
inch to \3/16\ inch, inclusive, in diameter or depth. After pears have 
been placed in storage, or in transit; scald, breakdown, decay, bitter 
pit, or physical injury affecting keeping quality, which may have 
developed or may only have become evident after pears are packed, are 
defined as applying to condition rather than to grade. Pears also shall 
not contain apple maggot, and shall not have more than 2 percent, by 
count, of pears with apple maggot injury, nor more than 2 percent, by 
count, of pears infested with San Jose scale or scale of similar 
appearance.
    Mature means having reached the stage of maturity which will insure 
a proper completion of the ripening process. Firmness of the flesh 
shall be considered only in connection with other factors to determine 
the degree of maturity.
    Sound means that pears at time of packing are free from visible 
defects such as decay, breakdown, scald, bitter pit, or physical injury 
affecting keeping quality. The following conditions shall not be 
considered serious damage: healed insect depressions or other surface 
blemishes which do not prevent the cutting of one good half;
    (2) Winter pears shall be of one variety which are mature, hand 
picked, clean, sound, not very seriously misshapen, free from black 
end, free from damage caused by hard end, broken skins, and from 
serious damage caused by cork spot or bruises. The following 
definitions shall apply to all varieties:
    Black end is evidenced by an abnormally deep green color around the 
calyx, or black spots usually occurring on one-third of the surface 
nearest to the calyx, or by an abnormally shallow calyx cavity.
    Clean means free from excessive dirt, dust, spray residue, or other 
foreign material. Damage by skin break means any pear with one skin 
break larger than \3/16\ inch in diameter or depth, or with more than 
one skin break \1/8\ inch or larger in diameter or depth. Such pear 
shall be considered damaged, and scored against the grade tolerance.
    Damage by skin break means any pear with one skin break larger than 
\3/16\ inch in diameter or depth, or with more than one skin break \1/
8\ inch or larger in diameter or depth. Such pear shall be considered 
damaged, and scored against the grade tolerance.
    Handpicked means that the pears do not show evidence of having been 
on the ground.
    Hard end is an abnormal yellow color at the blossom end, or an 
abnormally smooth, rounded base with little or no depression at the 
calyx, or if the flesh near the calyx is abnormally dry and tough or 
woody.
    Mature means that the pear has reached the stage of maturity which 
will insure the proper completion of the ripening process.
    Overripe means dead ripe, very mealy or soft, past commercial 
utility.
    Serious damage by cork spot is when more than two cork spots are 
visible externally, or when the visible external injury affects an 
aggregate area of more than \1/2\ inch in diameter. Serious damage by 
bruising is bruising which seriously affects the appearance, edible or 
shipping quality. For a tolerance of 10 percent or more, individual 
packages in any lot may contain not more than one and one-half times 
the tolerance specified, except that when the package contains 15 
specimens or less, individual packages may contain not more than double 
the tolerance specified. For a tolerance of less than 10 percent, 
individual packages in any lot may contain not more than double the 
tolerance specified, provided at least one specimen which does not meet 
the requirements shall be allowed in any one package. Pears also shall 
not contain apple maggot, and shall not have more than 2 percent, by 
count, of pears with apple maggot injury, nor more than 2 percent, by 
count, of pears infested with San Jose scale or scale of similar 
appearance;
    (c) Decay, scald or any other deterioration which may have 
developed on apples or pears after they have been in storage or transit 
shall be considered as affecting condition and not the grade.
* * * * *
    Dated: December 31, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-279 Filed 1-7-97; 8:45 am]
BILLING CODE 3410-02-P