[Federal Register Volume 65, Number 128 (Monday, July 3, 2000)]
[Proposed Rules]
[Pages 41018-41021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16737]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Proposed 
Rules  

[[Page 41018]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV00-927-1 PR]


Winter Pears Grown in Oregon and Washington; Establishment of 
Quality Requirements for the Beurre D'Anjou Variety of Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on establishing quality 
requirements for the Beurre D'Anjou (Anjou) variety of pears under the 
winter pear marketing order. The marketing order regulates the handling 
of winter pears grown in Oregon and Washington and is administered 
locally by the Winter Pear Control Committee (Committee). This rule 
would require that Anjou variety pears shipped to North America during 
the period of August 15 through November 1 of each year be certified by 
the Federal-State Inspection Service as having their core/pulp 
temperature lowered to 35 degrees Fahrenheit or less and having an 
average pressure test of 14 pounds or less. Establishing quality 
requirements for Anjou pears would enhance the ripening process. This 
is expected to result in higher quality Anjou pears reaching the market 
and to benefit producers, handlers, and consumers. A minimum quantity 
exemption from the quality and inspection requirements also is 
proposed.

DATES: Comments must be received by July 18, 2000.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-5698, or E-mail: [email protected]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register and will be made available for public 
inspection in the Office of the Docket Clerk during regular business 
hours or can be viewed at http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, 
Portland, Oregon 97204; telephone: (503) 326-2724, Fax: (503) 326-7440; 
or George Kelhart, Technical Advisor, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 
720-5698.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-5698, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreement No. 89 and Order No. 927, both as amended (7 CFR part 927), 
regulating the handling of winter pears grown in Oregon and Washington, 
hereinafter referred to as the ``order.'' The marketing agreement and 
order are effective under the Agricultural Marketing Agreement Act of 
1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.''
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposal 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 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 to review the Secretary's 
ruling on the petition, provided an action is filed not later than 20 
days after the date of the entry of the ruling.
    This proposed rule invites comments on establishing quality 
requirements under the order for Anjou variety pears. This rule would 
require that Anjou pears shipped to North America (Continental United 
States, Canada, or Mexico) during the period of August 15 through 
November 1 of each year, be certified by the Federal-State Inspection 
Service as having their core/pulp temperature lowered to 35 degrees 
Fahrenheit or less and having an average pressure test of 14 pounds or 
less. Application of the quality and inspection requirements to 
shipments to these three markets is proposed because shipments to other 
important markets outside of North America are transported in cold 
storage containers and arrive after November 1. This rule would also 
establish a minimum quantity exemption under which Anjou pear shipments 
of 8,800 pounds or less on any one conveyance may be shipped without 
regard to the proposed inspection and quality requirements.
    Section 927.51 of the order provides authority for the issuance, 
modification, suspension, or termination of regulations for grade, 
size, and quality for any variety of winter pears grown in any district 
during a specified period and for different requirements applicable to 
shipments for different export markets.
    Section 927.60 provides that when such regulations are in effect, 
no person shall handle such pears unless they are inspected and 
certified by the Federal-State Inspection service as meeting such 
requirements. Section 927.60 further provides authority for the 
establishment of minimum quantity exemptions from such requirements.

[[Page 41019]]

    Section 927.52 provides that any vote on size, grade, and quality 
regulations be conducted based upon an affirmative vote of not less 
than 80 percent of the applicable total number of votes for that 
variety. This section provides that for the Anjou variety of pears, 
each member shall have one vote as an individual and, in addition, 
shall have an equal share of the vote of the district represented by 
the member. Each district is given an additional vote for each 25,000 
boxes of the average quantity of Anjou pears produced in the particular 
district and shipped therefrom during the immediately preceding three 
fiscal periods. Using this formula, there are 453 applicable total 
votes for Anjou pears.
    At its meeting on March 30, and further discussed at subsequent 
meetings on May 4 and June 2, 2000, the Committee recommended the 
establishment of quality and inspection requirements for the Anjou 
variety of pears for shipments to North America from August 15 through 
November 1 of each year. The Committee recommended, with 83 percent 
(373 votes) of the applicable total number of votes voting in favor, 
that it be required that such pears have their core/pulp temperature 
lowered to 35 degrees Fahrenheit or less and have an average pressure 
test of 14 pounds or less. The Committee, for over 20 years, has 
recommended that handlers of Anjou pears voluntary comply with these 
two quality requirements because they are necessary for Anjou pears to 
ripen properly. In addition, the Committee has regularly provided 
handlers with research studies collected over the years supporting the 
importance of proper chilling for Anjou pears and the fruit being 
harvested and shipped at appropriate hardness.
    While the voluntary program worked well for many years, an 
increasing number of handlers in recent years have not consistently 
complied with these voluntary recommendations. At these three meetings, 
all Committee members supported the need for Anjou pears meeting these 
minimum quality requirements prior to shipment to North American 
markets (Continental United States, Canada, or Mexico). The three 
members who voted against the establishment of quality regulations 
supported continuation of the voluntary program.
    Anjou pears are unique to most other pear varieties because they 
are harvested in a mature, but unripe condition. For Anjou pears to 
ripen properly, these pears should be stored in cold storage facilities 
until their core/pulp temperature is reduced to 35 degrees Fahrenheit 
or less. Once the core/pulp temperature is reduced to 35 degrees 
Fahrenheit or less, these pears will ripen properly when purchased by a 
consumer. To further assist the ripening process and result in a higher 
quality pear, Anjou pears should also have an average pressure of 14 
pounds or less prior to shipment. Anjou pears that have been properly 
chilled will naturally ripen, and soften, over time. The storage and 
handling practices of a few handlers have allowed Anjou pears to be 
marketed at much higher pressure levels, sometimes well over 20 pounds, 
as well as without adequate chilling. In such cases, the consumer finds 
it is virtually impossible to ripen these pears after purchasing them. 
This has caused consumer dissatisfaction, hurt repeat purchases, 
depressed the market for later market pears and resulted in decreased 
producer returns.
    The Committee does not anticipate the establishment of these 
quality requirements would prevent any producer from ultimately being 
able to have his fruit marketed. The requirements would simply ensure 
the proper handling practices that are necessary to prevent poor 
quality fruit from being shipped early in the marketing year. The 
Committee further anticipates that these requirements would be 
relatively easy for each handler to meet. Winter pears are marketed 
throughout the year. Therefore, all handlers either have cold storage 
facilities or have access to such facilities.
    In the same motion recommending quality requirements, the Committee 
also recommended the establishment of a minimum quantity exemption 
under which shipments of 8,800 pounds or less on any one conveyance may 
be shipped without regard to the inspection and quality requirements. 
This minimum quantity exemption would eliminate any adverse impacts on 
handlers making small shipments or on sales at roadside stands and 
farmer markets.
    The Committee recommended that this rule be effective by August 15 
because shipments of Anjou pears are expected to begin shortly 
thereafter. This rule would apply only through November 1 of each year. 
Anjou pears harvested in August and stored in cold storage facilities 
through November 1 would naturally drop to the proposed minimum 
temperature because the pears are stored at that temperature, or lower. 
It is also unusual for pressure to be a problem in pears shipped after 
this date because pears soften naturally. Therefore, after November 1, 
enforcement of this regulation would no longer be necessary. Similarly 
the Committee recommended exemption of shipments to areas other than 
North America since Anjou pears shipped to overseas ports are 
refrigerated during transit and most shipments are sold and arrive at 
foreign ports after November 1. Consistent with the experience of many 
years with the voluntary program, the Committee's intent is to keep 
regulations at the minimum level necessary to ensure that a quality 
product is shipped to the consumer and to maintain reasonable returns 
to producers.
    The Committee estimates the total 2000-2001 winter pear shipments 
at approximately 15,300,000 standard boxes. Of that amount, Anjou pear 
shipments are estimated at approximately 11,800,000 standard boxes. 
Last year, the total winter pear crop was about 13,800,000 standard 
boxes. Of that amount, Anjou pear shipments were approximately 
10,100,000 standard boxes. In recent years approximately 7-8 percent of 
the total Anjou pear crop has been shipped from August 15 through 
November 1 into the domestic market.
    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. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    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.
    There are approximately 90 handlers of winter pears who are subject 
to regulation under the marketing order and approximately 1,800 winter 
pear producers in the regulated area. Small agricultural service firms 
are defined by the Small Business Administration (13 CFR 121.201) as 
those having annual receipts of less than $5,000,000, and small 
agricultural producers are defined as those having annual receipts of 
less than $500,000.
    The Committee estimates, based upon handler shipment totals and an 
average price of $14 per standard box, that about 87 percent of winter 
pear handlers could be considered small businesses under SBA's 
definition, excluding receipts from other sources. In addition, based 
on acreage, production, and

[[Page 41020]]

producer prices reported by the National Agricultural Statistic 
Service, and the total number of winter pear producers, the average 
annual producer receipts are approximately $43,200, excluding receipts 
from other sources. In view of the foregoing, it can be concluded that 
the majority of handlers and producers of winter pears may be 
classified as small entities.
    This rule would require that Anjou pears shipped to North America 
(Continental United States, Mexico, or Canada) during the period of 
August 15 through November 1 of each year, be certified by the Federal-
State Inspection Service as having their core/pulp temperature lowered 
to 35 degrees Fahrenheit or less and having an average pressure test of 
14 pounds or less. Shipments to other markets outside of North America 
are transported in cold storage containers and the fruit arrives after 
November 1. This rule would also establish a minimum quantity exemption 
under which Anjou pear shipments of 8,800 pounds or less on any one 
conveyance may be shipped without regard to the inspection and quality 
requirements.
    At its meeting on March 30, and further discussed at subsequent 
meetings on May 4 and June 2, 2000, the Committee recommended the 
establishment of quality and inspection requirements for the Anjou 
variety of pears for shipments to North America from August 15 through 
November 1 of each year. The Committee recommended, with 83 percent 
(373 votes) in favor, that it be required that such pears have their 
core/pulp temperature lowered to 35 degrees Fahrenheit or less and have 
an average pressure test of 14 pounds or less. The Committee, for over 
20 years, has recommended that handlers of Anjou pears voluntarily 
comply with these two quality factors necessary to enhance the ripening 
process. In addition, the Committee has regularly provided handlers 
with a compilation of research data that has been collected over the 
years supporting the importance of proper chilling for Anjou pears and 
the fruit being harvested and shipped at appropriate hardness.
    While the voluntary program has worked well for many years, an 
increasing number of handlers in recent years have not consistently 
complied with these voluntary recommendations. At these three meetings, 
all Committee members supported the need for Anjou pears to meet these 
quality requirements prior to shipment. The three members who voted 
against the establishment of quality regulations supported continuation 
of the voluntary program.
    Anjou pears are unique to most other pear varieties because they 
are harvested in a mature, but unripe condition. For Anjou pears to 
ripen properly, these pears should be stored in cold storage facilities 
until their core/pulp temperature is reduced to 35 degrees Fahrenheit 
or less. Once the core/pulp temperature is reduced to 35 degrees 
Fahrenheit or less, these pears will ripen properly when purchased by a 
consumer. To further assist the ripening process and result in a higher 
quality pear, Anjou pears should have an average pressure test of 14 
pounds or less prior to shipment. Anjou pears that have been properly 
chilled will naturally ripen, and soften, over time. The storage and 
handling practices of a few handlers have allowed Anjou pears to be 
marketed at much higher pressure levels, sometimes well over 20 pounds, 
as well as without adequate chilling. In such cases, the consumer finds 
that it is virtually impossible to ripen these pears after purchasing 
them. This has caused consumer dissatisfaction, hurt repeat purchases, 
depressed the market for later market pears and resulted in decreased 
producer returns.
    The Committee does not anticipate the establishment of these 
quality requirements would prevent any producer from ultimately being 
able to have his fruit marketed. The requirements would simply ensure 
that handlers follow the handling practices necessary to prevent poor 
quality fruit from being shipped early in the marketing year. The 
Committee further anticipates that these requirements would be 
relatively easy for each handler to meet. Winter pears are marketed 
throughout the year. Therefore, all handlers either have cold storage 
facilities or have access to such facilities.
    In the same motion recommending quality requirements, the Committee 
also recommended the establishment of a minimum quantity exemption 
under which shipments of 8,800 pounds or less on any one conveyance may 
be shipped without regard to the inspection and quality requirements. 
This minimum quantity exemption would eliminate any adverse impacts on 
handlers making small shipments or on sales at roadside stands and 
farmer markets.
    The Committee recommended that this rule be effective by August 15 
because shipments of Anjou pears are expected to begin shortly 
thereafter. This rule would apply only through November 1 of each year. 
Anjou pears harvested in August and stored in cold storage facilities 
through November 1 would naturally drop to the minimum temperature 
because they are stored at that temperature, or lower. It is also 
unusual for pressure to be a problem in pears shipped after this date 
because pears soften naturally. Therefore, after November 1, 
enforcement of this regulation would no longer be necessary. Similarly 
the Committee recommended exemption of shipments to areas other than 
North America since Anjou pears shipped to overseas ports are 
refrigerated during transit and most shipments are sold and arrive at 
foreign ports after November 1. Consistent with the experience of many 
years with the voluntary program, the Committee's intent is to keep 
regulations at the minimum level necessary to ensure a quality product 
is shipped to the consumer and to maintain reasonable returns to 
producers.
    This rule would impose some additional costs on handlers. Some of 
the additional costs may be passed on to producers. In recent years, 
approximately 9-10 percent of the total Anjou pear crop has been 
shipped from August 15 through November 1 into North American markets. 
The Committee currently estimates the Anjou pear crop to be 
approximately 11,800,000 standard boxes. An average inspection rate for 
pears within the production area would approximate $0.05 per standard 
box. Therefore, it is estimated that the establishment of quality and 
inspection requirements would result in mandatory inspection costs of 
approximately $56,050 (9.5 percent  x  11,800,000 standard boxes  x  
inspection rate of $0.05 per standard box). The actual increase in 
costs to the industry because of mandatory inspection requirements 
would be significantly less, however, because approximately 65-75 
percent of the Anjou pear crop is currently being inspected on a 
voluntary basis. These costs are expected to be significantly offset by 
the benefits of the proposed rule. The benefits for this proposed rule 
are not expected to be disproportionately greater or less for small 
handlers or producers than for larger entities.
    The Committee discussed alternatives to the quality requirements, 
including a longer time period of mandatory inspection as well as 
continuing with the voluntary program. The Committee believes that the 
requirements proposed are the minimum level necessary to ensure a 
quality product. The Committee believes that voluntary compliance is no 
longer effective. The Committee believes that this action would benefit 
producers, handlers, and consumers.

[[Page 41021]]

    This proposed rule would not impose any additional reporting or 
recordkeeping requirements on either small or large winter pear 
handlers. As with all Federal marketing order programs, reports and 
forms are periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this proposed rule.
    In addition, the Committee's meetings were widely publicized 
throughout the winter pear industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the March 30, 
May 4, and June 2, 2000, meetings were public meetings and all 
entities, both large and small, were able to express views on this 
issue. The Committee itself is composed of twelve members, of whom six 
are handlers and six are producers. Finally, interested persons are 
invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposal. Fifteen days is deemed appropriate because 
this rule would need to be in place by August 15, 2000, because 
shipments of Anjou pears are expected to begin shortly thereafter. All 
written comments timely received will be considered before a final 
determination is made on this matter.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 927 is 
proposed to be amended as follows:

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 927 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. A new Sec. 927.316 is added to read as follows:


Sec. 927.316  Handling regulation.

    During the period August 15 through November 1, no person shall 
handle any Beurre D'Anjou variety of pears for shipments to North 
America (Continental United States, Mexico, or Canada), unless such 
pears meet the following requirements:
    (a) Beurre D'Anjou variety of pears shall have a certification by 
the Federal-State Inspection Service, issued prior to shipment, showing 
that (1) the core/pulp temperature of such pears has been lowered to 35 
degrees Fahrenheit or less and
    (2) Any such pears have an average pressure test of 14 pounds. The 
handler shall submit, or cause to be submitted, a copy of the 
certificate issued on the shipment to the Control Committee.
    (b) Each handler may ship on any one conveyance 8,800 pounds or 
less of Beurre D'Anjou variety of pears without regard to the quality 
and inspection requirements in paragraph (a) of this section.

    Dated: June 27, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-16737 Filed 6-30-00; 8:45 am]
BILLING CODE 3410-02-P