[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Rules and Regulations]
[Pages 4202-4204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1508]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-FV-10-0072; FV10-927-1 IR]


Pears Grown in Oregon and Washington; Amendment To Allow 
Additional Exemptions

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule adds an exemption to the marketing order for Oregon-
Washington pears that provides for the sale of fresh pears directly to 
consumers without regard to regulation. The marketing order regulates 
the handling of pears grown in Oregon and Washington. Local 
administration of the marketing order for the fresh pear industry is 
provided by the Fresh Pear Committee (Committee). For each customer, 
this rule exempts consumer-direct sales of up to 220 pounds of fresh 
pears per transaction, for home use only, made directly at orchards, 
packing facilities, roadside stands, or farmers' markets without regard 
to the marketing order's assessment, reporting, handling, and 
inspection requirements. This action is intended to provide regulatory 
flexibility to small pear handlers, while facilitating the sale of 
fresh, local pears directly to consumers.

DATES: Effective January 26, 2011; comments received by March 28, 2011 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document 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.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson or Gary Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, Portland, Oregon; 
Telephone: (503) 326-2724, Fax: (503) 326-7440, or E-mail: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 927, as amended (7 CFR part 927), regulating the handling of pears 
grown in Oregon and Washington, 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.''
    The Department of Agriculture (USDA) 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.
    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 USDA 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, USDA 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 USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    For each customer, this rule exempts consumer-direct sales of up to 
220 pounds of fresh pears per transaction, for home use only and made 
directly at orchards, packing facilities, roadside stands, or farmers' 
markets without regard to the marketing order's assessment, reporting, 
handling, and inspection requirements. This action is intended to 
provide regulatory flexibility to small pear handlers, while 
facilitating the sale of fresh, local pears directly to consumers.
    Section 927.65(a) provides the authority to exempt from regulation 
pears for consumption by charitable institutions and distribution by 
relief agencies. Section 927.65(b) provides the authority whereby 
certain quantities of pears or types of pear shipments may be exempted 
from any or all provisions of the order.
    On April 22, 2010, the Committee unanimously recommended adding an 
exemption to the order for the sale of small quantities of home-use 
only pears directly to consumers. Other exemptions under the order 
include Sec.  927.120 which provides for the regulation free 
distribution of pears for charitable or by-product use, and Sec.  
927.121, which provides an exemption for mail order sales of gift 
packages that are shipped directly to consumers. In order to facilitate 
the direct sale of local, fresh pears to consumers while relaxing the 
regulatory burden on small handlers, the Committee believes that 
specified quantities of pears sold at orchards, packing facilities, 
roadside stands, and farmers' markets should also be exempt from 
regulation.
    Some grower handlers have traditionally sold a portion of their 
pear harvest directly to consumers from their

[[Page 4203]]

orchards, or from roadside fruit stands and farmers markets. Under the 
order, such sales are considered ``handling'' and thus fall under the 
various regulations of the order including the assessment, reporting, 
handling, and inspection requirements. When growers sell produce 
directly to consumers, they become handlers and are frequently referred 
to as ``grower handlers.'' A few packing houses, those that are 
generally involved only in the handling aspect of the fresh pear 
industry, may also sell small quantities of pears directly to 
consumers. The Committee recommended that sales be limited to a maximum 
of 220 pounds of pears per customer per sale. This weight limitation is 
equivalent to five standard pear boxes weighing 44 pounds each and was 
chosen based on industry recommendations.
    By removing the requirement that these small consumer-direct sales 
be monitored, assessed, and regulated through the implementation of 
reporting requirements, quality regulations, and mandatory inspection, 
the Committee believes that this rule will facilitate the sale of pears 
within the local market, and reduce overall compliance expenses.
    The Committee emphasized that the volume represented by such pear 
sales is insignificant and will not adversely affect the domestic and 
international marketing of commercial quantities of fresh pears. 
Furthermore, the Committee stressed that the majority of the funds 
assessed under the order are earmarked for large-scale promotional 
efforts that do not have a direct relationship or benefit to the 
consumer-direct sales made directly at orchards, packing sheds, 
roadside stands, and farmers' markets. By recommending and implementing 
this regulatory relaxation, the Committee also believes that it is 
taking an important step in helping the small businesses within the 
Northwest pear industry to remain viable while also facilitating the 
current consumer interest in buying local, fresh produce.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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.
    There are approximately 1,537 growers of fresh pears in the 
regulated production area and approximately 38 handlers subject to 
regulation under the order. Small agricultural growers are defined by 
the Small Business Administration (SBA) (13 CFR 121.201) as those 
having annual receipts of less than $750,000, and small agricultural 
service firms are defined as those whose annual receipts are less than 
$7,000,000.
    According to the Noncitrus Fruits and Nuts 2010 Preliminary Summary 
issued in January 2010 by the National Agricultural Statistics Service, 
the average 2009 fresh pear price of $456 per ton places the farm-gate 
value of fresh pears grown in Oregon and Washington at $202,053,810. 
Based on the number of fresh pear growers in the Oregon and Washington, 
the average gross revenue for each can be estimated at approximately 
$131,460. Furthermore, based on Committee records, the Committee has 
estimated that 56 percent of Northwest pear handlers currently ship 
less than $7,000,000 worth of fresh pears on an annual basis. From this 
information, it is concluded that the majority of growers and handlers 
of Oregon and Washington pears may be classified as small entities.
    This rule exempts from regulation fresh pears that are sold 
directly to consumers--in quantities of 220 pounds or less per customer 
and transaction--at orchards, packing houses, roadside stands, and 
farmers' markets. This change should provide small pear handlers with 
increased marketing flexibility while facilitating the sale of pears in 
local markets.
    Section Sec.  927.65(b) of the order authorizes the establishment 
of regulations that exempt specified quantities of pears, or types of 
pear shipments from the order.
    This rule is expected to have a beneficial impact on the Northwest 
pear industry, especially on small grower handlers and handlers. The 
Committee's goal is that this exemption will reduce overall costs to 
the pear industry, relax the burden on small businesses, and facilitate 
the distribution of fruit at the local level. The Committee believes 
that this action will be especially beneficial to small independent 
businesses because such agricultural operations tend to utilize 
roadside stands and farmers' markets more than do large, vertically 
integrated entities. The Committee has stated that the majority of pear 
handlers are small businesses under the SBA definition. Although this 
rule was recommended by the Committee with the goal of helping small 
pear grower handlers and handlers, it does not prevent large businesses 
from realizing the same benefits.
    In discussing alternatives to this recommendation, the Committee 
contemplated maintaining the status quo. The Committee's stated goal in 
recommending this exemption is to reduce the regulatory burden on small 
entities to help them remain viable while enhancing the vibrancy of the 
local produce market. The Committee quickly reached the conclusion that 
this course of action is the only feasible option.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large 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. In addition, USDA has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rule.
    AMS is committed to complying with the E-government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    The Committee's meeting was widely publicized throughout the 
Oregon-Washington pear industry and all interested persons were invited 
to participate in Committee deliberations. Like all Committee meetings, 
the April 22, 2010, meeting was a public meeting and all entities, both 
large and small, were able to express views on this issue. Interested 
persons are invited to submit comments on this interim rule, including 
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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on the addition of an exemption under 
the Oregon-Washington pear order for specified small quantities of 
fresh pear sales directly to consumers. Any

[[Page 4204]]

comments received will be considered prior to finalization of this 
rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim rule, as hereinafter set forth, will tend to effectuate 
the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) Any changes resulting from this rule should be effective 
as soon as practicable because the Oregon-Washington pear shipping 
season began in August; (2) the Committee discussed and unanimously 
recommended this change at a public meeting and all interested parties 
had an opportunity to provide input; (3) this action is a relaxation of 
the handling regulations that is intended to benefit pear handlers 
while facilitating the sale of fresh, local pears directly to 
consumers; (4) the industry is aware of this action and wants to take 
advantage of the relaxation during this shipping season; and (5) this 
rule provides a 60-day comment period and any comments received will be 
considered prior to finalization of this rule.

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 
amended as follows:

PART 927--PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for 7 CFR part 927 continues to read as 
follows:


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

0
2. A new Sec.  927.122 is added to read as follows:


Sec.  927.122  Consumer direct pear sales.

    Notwithstanding any other provision of this section, fresh pears 
may be handled without regard to the provisions of Sec. Sec.  927.41, 
927.51, 927.60, and 927.70 under the following conditions:
    (a) Such pears are sold in person and sold directly to consumers on 
the premises where grown, at packing facilities, at roadside stands, or 
at farmers' markets.
    (b) Such pears are for home use only and are not for resale.
    (c) The total quantity of such pears sold to each consumer during 
any single transaction does not exceed 220 pounds.

    Dated: January 19, 2011.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2011-1508 Filed 1-24-11; 8:45 am]
BILLING CODE 3410-02-P