[Federal Register Volume 71, Number 234 (Wednesday, December 6, 2006)]
[Rules and Regulations]
[Pages 70643-70646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20659]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 234 / Wednesday, December 6, 2006 / 
Rules and Regulations  

[[Page 70643]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 33

[Docket No. FV-00-33-1 FR]


Regulations Issued Under the Export Apple Act; Removal of Pear 
Regulations From the Export Regulations for Apples and Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises export regulations issued under the 
Export Apple and Pear Act (now renamed as the Export Apple Act) to 
reflect an amendment to that Act. The amendment limits the 
applicability of the Act to apple exports and removes all references to 
pears. Accordingly, the provisions applicable to pears are removed from 
the regulations.

DATES: Effective Date: December 7, 2006.

FOR FURTHER INFORMATION CONTACT: Kenneth G. Johnson, DC Marketing Field 
Office, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA, Unit 155, 4700 River Road, Riverdale, Maryland 
20737, telephone number (301) 734-5243, fax number (301) 734-5275, or 
e-mail address: [email protected].
    Small businesses may request information on compliance with this 
regulation by contacting: Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW STOP 0237, Washington, DC 20250-0237, telephone number (202) 
720-2491, fax number (202) 720-2491, or e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: This rule revises export quality container, 
pack, and inspection regulations (7 CFR part 33) issued under authority 
of the Export Apple and Pear Act (Act), as amended, [7 U.S.C. 581 et 
seq.]. The Act was renamed as the Export Apple Act, and amended to 
limit the applicability of the Act to apple exports and removed all 
references to pears. The Act was enacted November 12, 1999. This rule 
revises the regulations to reflect the fact that pears are no longer 
regulated as part of the Act.
    In the past, the Act provided for the issuance of quality, 
container, container marking, and pack requirements for exports of 
apples and pears. The intent of the Act was to assure the quality of 
exported apples and pears, and to standardize the containers, container 
markings, and packs used by exporters.
    This rule revises the regulations to remove all of the provisions 
related to quality, container, container marking, and pack applicable 
to pears to be consistent with the amended Act. Pear exporters would no 
longer be required to meet these requirements under the amended Act.
    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.
    The Act promoted the foreign trade of U.S.-grown apples and pears 
by authorizing the implementation of regulations with minimum quality, 
container, container marking, and inspection requirements. The 
regulated entities are packers, exporters, and carriers of these 
fruits.
    In the 1990's, the U.S. pear industry sought greater flexibility in 
selling pears to developing export markets. Pear producers, handlers, 
and officials representing firms packing and exporting pears from the 
States Washington, Oregon, and California, which account for virtually 
all U.S. pear exports, petitioned Congress to remove provisions 
concerning pears from the Act. Congress voted in support of the 
removal, and on November 12, 1999, Public Law 106-96 was signed into 
law, amending and renaming the Act as the Export Apple Act.
    This action is necessary to remove the provisions relating to pears 
from the export regulations in 7 CFR part 33, and make them consistent 
with the export Apple Act.

Final Regulatory Flexibility Analysis

    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 final 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.
    Small agricultural service firms, which include firms that pack and 
export apples and pears, have been defined by the Small Business 
Administration (13 CFR 121.201) as those having annual receipts of less 
than $6,500,000. In the United States, there are approximately 450 
firms that pack and export apples that are potentially subject to 
regulations under the authority of the Act. The majority of apple 
exporters regulated under the Act may be classified as small entities.
    USDA's Foreign Agricultural Service reports U.S. pear exports of 
154,324 tons for the 2005/06 season. This is 5 percent below the 2004/
05 pear export volume of 163,784 tons. The smaller 2005/2006 pear 
export crop, higher prices, rising imports and weak demand from key 
U.S. trading partners contributed to the reduction in U.S. pear exports 
in 2005/2006.
    There are approximately 100 pear shippers with exporting 
capabilities in Washington, Oregon and California. A small number of 
exporters also ship pears from Michigan, New York, and Pennsylvania. 
U.S. pears were exported to over 30 countries in 2005/06, with the 
largest volumes going to Mexico, Canada, Brazil, Russia, and Columbia. 
Other export markets include New Zealand, India, Saudi Arabia, the 
United Arab Emirates, and Venezuela.
    The U.S. pear industry has become increasingly dependent on foreign 
markets. Thus, it is essential that the regulations governing the 
industry provide the packers and exporters with the means of 
effectively competing in those markets. Pear producers, handlers, and 
officials representing firms that pack and export pears from the States 
of

[[Page 70644]]

Washington, Oregon, and California, which account for virtually all 
U.S. pear exports, petitioned Congress to remove pears from the Act.
    The proponents to remove pears from the Act believe that private 
contractual arrangements between buyers and sellers control the quality 
of U.S. pear exports, and that mandatory Federal grade, size, quality, 
pack, container, and inspection requirements are no longer needed to 
assure the quality and condition of exported pears, and to assure that 
the pears are properly packed.
    The quality of pears demanded by most buyers in current export 
markets is higher than the minimum standards that were implemented 
under the enabling legislation. However, opportunities for the sale of 
lower quality fresh pears have arisen in recent years. Some export 
markets desire pears having external defects and blemishes, such as 
hail marks, which are of good eating quality.
    The pear industry believes that pear export markets can be better 
maintained, and expanded, by terminating the pear provisions and 
providing the U.S. pear industry greater flexibility in responding to 
international market needs. Prior to the removal of the pear 
regulations, packers and exporters of U.S. fresh pears have not been 
able to meet the demand for lower grade pears in other countries 
without changes to the export regulations made by the Department 
through informal rulemaking procedures under the Administrative 
Procedure Act (5 U.S.C. 553).
    Each of the major producing States have minimum quality and 
inspection requirements for outgoing pear shipments, and these 
requirements will continue to apply. Washington has minimum grade 
requirements, and both Oregon and California have minimum requirements 
for maturity and grade defects. In addition, one Federal marketing 
order for pears (7 CFR part 927) produced in Oregon and Washington 
offer the opportunity for pear growers and handlers in those States to 
implement minimum requirements for fresh pear exports.
    The regulation changes are expected to provide the U.S. pear 
industry with more flexibility in meeting buyer needs in international 
markets. The U.S. pear industry expects to be able to meet those needs 
more promptly with the removal of the pear regulations from the Act.
    In making this amendment, USDA is implementing Public Law 106-96. 
Thus, no alternatives were considered by USDA. The recordkeeping 
requirements have been approved by the Office of Management and Budget 
(OMB) under OMB No. 0581-0143; Export Fruit Acts.
    This action will not impose any additional reporting or 
recordkeeping requirements on either small or large apple or pear 
exporters. As with all Federal regulatory programs, reports and forms 
are periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, the 
Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following Web site: 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.
    Further, given the provisions of the Export Apple Act, it is found 
and determined upon good cause, that it is impracticable, unnecessary, 
and contrary to the public interest to postpone the effective date of 
this rule until 30 days after publication in the Federal Register. The 
export pear regulations have not been applied since November 12, 1999.

List of Subjects in 7 CFR Part 33

    Administrative practice and procedure, Exports, Apples, Reporting 
and recordkeeping requirements.


0
For the reasons set forth in the preamble, 7 CFR part 33 is revised as 
follows:

PART 33--REGULATIONS ISSUED UNDER AUTHORITY OF THE EXPORT APPLE ACT

0
1. 7 CFR part 33 is revised to read as follows:

PART 33--REGULATIONS ISSUED UNDER AUTHORITY OF THE EXPORT APPLE ACT

Definitions

Sec.
33.1 Act.
33.2 Person.
33.3 Secretary.
33.4 Carrier.
33.5 Apples.
33.6 Package.
33.7 Less than carload lot.

Regulations

33.10 Minimum requirements.
33.11 Inspection and certification.

Exemptions

33.12 Apples not subject to regulations.

Withholding Certificates

33.13 Notice.
33.14 Opportunity for hearing.
33.15 Suspension of inspection.
33.16 Service of notice or order.

Interpretive Rules

33.50 Apples for processing.
33.60 OMB control number assigned pursuant to the Paperwork 
Reduction Act.

    Authority: Sec. 7, 48 Stat. 124; 7 U.S.C. 587.

Definitions


Sec.  33.1  Act.

    Act and Export Apple Act are synonymous and mean ``An act to 
promote the foreign trade of the United States in apples to protect the 
reputation of American-grown apples in foreign markets, to prevent 
deception or misrepresentation as to the quality of such products 
moving to foreign commerce, to provide for the commercial inspection of 
such products entering such commerce, and for other purposes,'' 
approved June 10, 1933 (48 Stat. 123; 7 U.S.C. 581 et seq.), and 
amended November 12, 1999 (113 Stat. 1321; 7 U.S.C. 581 et seq.).


Sec.  33.2  Person.

    Person means an individual, partnership, association, corporation, 
or any other business unit.


Sec.  33.3  Secretary.

    Secretary means the Secretary of Agriculture of the United States 
or any officer or employee of the United States Department of 
Agriculture to whom authority has heretofore been delegated or to whom 
authority may hereafter be delegated to act in his stead.


Sec.  33.4  Carrier.

    Carrier means any common or private carrier, including, but not 
limited to trucks, railroads, airplanes, vessels, tramp or chartered 
steamers whether carrying for hire or otherwise.


Sec.  33.5  Apples.

    Apples mean fresh whole apples in packages whether or not they have 
been in storage.


Sec.  33.6  Package.

    Package means any container of apples.


Sec.  33.7  Less than carload lot.

    Less than carload lot means a quantity of apples in packages not 
exceeding 20,000 pounds gross weight or 400 standard boxes or 
equivalent.

[[Page 70645]]

Regulations


Sec.  33.10  Minimum requirements.

    No person shall ship, or offer for shipment, and no carrier shall 
transport, or receive for transportation, any shipment of apples to any 
foreign destination unless:
    (a) Apples grade at least U.S. No. 1 or U.S. No. 1 Early: Provided, 
That apples for export to Pacific ports of Russia shall grade at least 
U.S. Utility or U.S. No. 1 Hail for hail-damaged apples, as specified 
in the United States Standards for Apples (Sections 51.300-51.323 of 
this chapter): Provided further, That apples for export to any foreign 
destination do not contain apple maggot, and do not have more than 2 
percent, by count, of apples with apple maggot injury, nor more than 2 
percent, by count, of apples infested with San Jose scale or scale of 
similar appearance;
    (b) Decay, scald or any other deterioration which may have 
developed on apples after they have been in storage or transit shall be 
considered as affecting condition and not the grade.
    (c) Each package of apples is packed so that the apples in the top 
layer shall be reasonably representative in size, color, and quality of 
the contents of the package; and
    (d) Each package of apples is marked plainly and conspicuously 
with:
    (1) The name and address of the grower, packer, or domestic 
distributor: Provided, That the name of the foreign distributor may be 
placed on consumer unit packages shipped in a master container if such 
master container is marked with the name and address of the grower, 
packer, or domestic distributor;
    (2) The variety of the apples;
    (3) The name of the U.S. grade or the name of a state grade if the 
fruit meets each minimum requirement of a U.S. grade specified in this 
section.


Sec.  33.11  Inspection and certification.

    (a) Each person shipping, or offering for shipment, apples to any 
foreign destination shall cause them to be inspected by the Federal or 
Federal-State Inspection Service in accordance with regulations 
governing the inspection and certification of fresh fruits, and 
vegetables and other products (Part 51 of this chapter) and certified 
as meeting the requirements of the Act and this part. No carrier shall 
transport, or receive for transportation, apples to any foreign 
destination unless they have been so inspected and certified. 
Inspection and certification may be obtained at any time prior to 
exportation of the apples. Such a Federal or Federal-State certificate 
shall be designated as an ``Export Form Certificate'' and shall include 
the following statement: ``Meets requirements of Export Apple Act.'' 
The shipper shall deliver a copy of the Export Form Certificate or 
Memorandum of Inspection to the export carrier. Whenever apples are 
inspected and certified at any other point other than the port of 
exportation, the shipper shall deliver a copy of the Export Form 
Certificate or Memorandum of Inspection to the agent of the first 
carrier that thereafter transports such apples and such agent shall 
deliver such copy to the proper official of the carrier on which the 
apples, covered by such certificate or memorandum, are to be exported. 
A copy of the Export Form Certificate or Memorandum of Inspection shall 
be filed by the export carrier for a period of not less than three (3) 
years after date of export.
    (b) If the inspector has reason to believe that samples of a lot of 
apples have been obtained for a determination as to compliance with 
tolerance for spray residue, established under the Federal Food, Drug 
and Cosmetic Act, as amended (52 Stat. 1040; U.S.C. 301 et seq.), he 
shall not issue a certificate on the lot unless it complies with such 
tolerances.

Exemptions


Sec.  33.12  Apples not subject to regulation.

    Except as otherwise provided in this section, any person may, 
without regard to the provisions of this part, ship or offer for 
shipment, and any carrier may, without regard to the provisions of this 
part, transport or receive for transportation to any foreign 
destination:
    (a) A quantity of apples to any foreign country not exceeding a 
total of 5,000 pounds gross weight or 100 boxes of apples packed in 
standard boxes on a single conveyance:
    (b) Apples to Pacific ports west of the International Date Line 
which do not meet maturity standards of the grade specified in Sec.  
33.10, if the packages are conspicuously marked or printed with the 
words ``Immature Fruit;'' (in letters at least two inches high) if 
inspected and certified as meeting all other requirements of Sec. Sec.  
33.10 and 33.11.
    (c) Apples for processing which do not meet the grade standards 
specified in Sec.  33.10, if such apples grade at least U.S. No. 1 as 
specified in U.S. Standards for Apples for Processing (Sec. Sec.  
51.340 to 51.344 of this chapter), and if the containers are 
conspicuously marked ``Cannery'' (in letters at least two inches high) 
if inspected and certified as meeting all other requirements of 
Sec. Sec.  33.10 and 33.11.

Withholding Certificates


Sec.  33.13  Notice.

    If the Secretary is considering withholding the issuance of 
certificates under the Act for a period of not exceeding 90 days to any 
person who ships, or offers for shipment, apples to any foreign 
destination in violation of any provisions of the Act or this part, he 
or she shall cause notice to be given to the person accused of the 
nature of the charges against him or her and of the specific instances 
in which violation of the Act or the regulations in this part is 
charged.


Sec.  33.14  Opportunity for hearing.

    The person accused shall be entitled to a hearing, provided he or 
she makes written requests therefore and files a written responsive 
answer to the charges made not later than 10 days after service of such 
notice on him or her. The right to hearing shall be restricted to 
matters in issue. At such hearing, he or she shall have the right to be 
present in person or by counsel and to submit evidence and argument in 
his or her behalf. Failure to request a hearing within the specified 
time or failure to appear at the hearing when scheduled shall be deemed 
a waiver of the right to hearing. Such person may, in lieu of 
requesting an oral hearing, file a sworn written statement with the 
Secretary not later than 10 days after service of such notice upon him 
or her.


Sec.  33.15  Suspension of inspection.

    Any order to withhold the issuance of a certificate, as provided in 
section 6 of the Act, will be effective from the date specified in the 
order but no earlier than the date of its service upon the person found 
to have been guilty. Such order will state the inclusive dates during 
which it is to remain in effect, and during this period no inspector 
employed or licensed by the Secretary shall issue any Export Form 
Certificate or Memorandum of Inspection to such person.


Sec.  33.16  Service of notice or order.

    Service of any notice or order required by the Act or prescribed by 
the regulations in this part shall be deemed sufficient if made 
personally upon the person served, by registered mail, or by leaving a 
copy of such notice or order with an employee or agent at such person's 
usual place of business or abode or with any member of his immediate 
family at his or her place of abode. If the person named is a

[[Page 70646]]

partnership, association, or corporation, service may similarly be made 
by service on any member of the partnership or any officer, employee, 
or agent of the association or corporation.

Interpretive Rules


Sec.  33.50  Apples for processing.

    The terms ``apples for processing'' as used in Sec.  33.12 of this 
part apply only and is restricted to packages of apples which were 
originally packaged for processing and marked ``Cannery'' as required 
by Sec.  33.12(c) of this part. Packages of apples not so originally 
packaged and marked are not eligible for certification as ``apples for 
processing'' for purposes of this part.


Sec.  33.60  OMB control number assigned pursuant to the Paperwork 
Reduction Act.

    The OMB control number assigned pursuant to the Paperwork Reduction 
Act for this part is OMB No. 0581-0143.

    Dated: December 1, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-20659 Filed 12-5-06; 8:45 am]
BILLING CODE 3410-02-P