[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Proposed Rules]
[Pages 66283-66285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22169]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-SC-20-0063; SC20-927-1 PR]


Pears Grown in Oregon and Washington; Modification of the 
Handling Regulation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would modify the handling regulation 
prescribed under the marketing order for pears grown in Oregon and 
Washington (Order). This action would decrease the maximum acceptable 
pressure for early season Beurre D'Anjou (Anjou) variety pears shipped 
throughout the Continental United States and to Canada. In addition, 
this rule would remove the handling requirement exemption for small 
shipments of Anjou pears.

DATES: Comments must be received by December 18, 2020.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or internet: https://www.regulations.gov. Comments should reference the document 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, or can be viewed at: https://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: Dale Novotny, Marketing Specialist, or 
Gary Olson, Regional Director, Northwest Marketing Field Office, 
Marketing Order and Agreement Division, Specialty Crops Program, AMS, 
USDA; Telephone: (503) 326-2724 or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend regulations issued to carry out a marketing order as 
defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing 
Agreement and Order No. 927, as amended (7 CFR part 927), regulating 
the handling of pears grown in Oregon and Washington. Part 927 
(referred to as 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 Committee locally 
administers the Order and is comprised of growers and handlers of pears 
operating within the production area, and a public member.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed 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 a marketing order may file with USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order is not in accordance with law and request a 
modification of the order or to be exempted therefrom. Such 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.
    This proposed rule would modify the handling regulation prescribed 
under the marketing order for pears grown in Oregon and Washington. 
This action would decrease, from 14 pounds to 13 pounds, the maximum 
acceptable pressure for early season Anjou variety pears shipped 
throughout the Continental United States and to Canada during the 
period August 15 to November 1. The maximum pressure for Anjou pear 
shipments to Mexico during this period would remain at 14 pounds. In 
addition, this action would remove the exemption from handling 
requirements for Anjou pear shipments of 8,800 pounds or less. The 
Committee recommended these actions at its May 26, 2020, meeting.
    Section 927.51 provides authority for the Committee, with the 
approval of USDA, to regulate the handling of pears grown within the 
production area of Oregon and Washington. Section 927.52 stipulates the 
prerequisites for recommendations made by the Committee with regards to 
the issuance, modification, suspension, or termination of handling 
regulation established under the authority of Sec.  927.51. Section 
927.316 sets forth the handling requirements for fresh Anjou pears.
    The Committee met on May 26, 2020, and recommended modification of 
the handling regulation for the 2021-2022 and subsequent fiscal 
periods. The Committee's recommendation was not unanimous but met the 
requirements of Sec.  927.52 for recommendations to modify the Order's 
handling regulation. For recommendations to change the handling 
regulations, the Committee vote is weighted by volume. The Order 
provision allocates Committee members one vote for each 25,000 boxes of 
the average quantity of such variety or subvariety produced in their 
district and shipped therefrom during the immediately preceding three 
fiscal periods. The provision further requires that recommendations for 
changes to the handling regulations shall be affirmed by members 
representing no less than 80 percent of the volume of the variety or 
subvariety affected.
    Based on the above calculation, there were 397 votes cast at the 
meeting. The Committee voted 343 (86 percent) in favor of the 
recommendation, 48 votes (12 percent) opposed, with 6 votes (2 percent) 
abstaining. The voters in opposition expressed concern that the 
modification of the handling regulation could hamper total sales of 
early season Anjou pears. The members abstaining

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represented very little, if any, Anjou production.
    The Committee had discussed the modification of the handling 
regulation specific to early season Anjou pears several times in the 
past. The Committee established a subcommittee to talk with industry 
members and researchers to weigh the benefits of different regulatory 
options. Research conducted using Committee funds has demonstrated that 
Anjou pears harvested at higher pressures tend to not ripen properly. 
Most North American consumers prefer a pear that will ripen and be 
ready to eat quickly after purchase. Lowering the maximum pressure 
requirement by 1 pound, from 14 pounds to 13 pounds for the Continental 
United States and Canada would help ensure consumers in those areas 
consistently receive the product they prefer. International market and 
consumer research conducted for the Committee has demonstrated that the 
Mexican market is more receptive to a firmer pear, which led to the 
decision to leave the pressure at 14 pounds for early season shipments 
to Mexico.
    In addition, removing the 8,800 minimum quantity exemption would 
ensure that even small shipments of early season Anjou pears conform to 
the maximum pressure requirements and that all product shipped during 
this period is of similar quality.
    The Committee derived its recommendation to modify the handling 
regulation from lengthy discussions with industry members at multiple 
public meetings, from subcommittee input, and from research conducted 
using Committee funds.
    This proposed rule would lower the acceptable pressure, from 14 
pounds to 13 pounds, of early season Anjou pear shipments destined for 
the Continental United States and Canada, and would remove the minimum 
quantity exemption for all early season Anjou shipments. It is the 
Committee's determination that this modification would increase 
consumer preference for Anjou pears in the fresh fruit market by 
delivering a better eating experience and would provide increased 
returns to handlers and growers.

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 proposed rule 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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the 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 838 growers of pears for the fresh market 
in the regulated area and approximately 32 handlers of pears who are 
subject to regulation under the Order. Small agricultural producers are 
defined by the Small Business Administration (SBA) as those having 
annual receipts of less than $1,000,000, and small agricultural service 
firms have been defined as those whose annual receipts are less than 
$30,000,000 (13 CFR 121.201).
    According to the most recent data from the National Agricultural 
Statistics Service (NASS), the national average producer price for non-
Bartlett fresh pears for the 2017 marketing year (the most current year 
for NASS pear data) ranged from $748 to $788 per ton or $16.46 to 
$17.34 per 44-pound standard box. The Committee reported that for the 
same full year of records, total shipments of non-Bartlett pears for 
the fresh market from the production area were 11,875,202 boxes. Using 
the NASS price range from the 2017 marketing year, the total 2017 farm 
gate value of the fresh, non-Bartlett pear crop could therefore be 
estimated to be between at $195,465,825 and $205,916,003. Dividing the 
crop value by the estimated number of growers (838) yields an estimated 
average receipt per producer of between $233,253 and $245,723, which is 
well below the SBA threshold for small producers.
    USDA Market News reported a freight on board (FOB) average price 
(including palletizing and cooling) of $24.45 per 44-pound box or 
equivalent of pears shipped in 2019. Multiplying this average FOB price 
by the Committee recorded total 2019 shipments of 13,811,500 44-pound 
boxes of fresh pears results in an estimated gross value of fresh pear 
shipments of $337,691,175. Dividing this figure by the number of 
handlers (32) yields estimated average annual handler receipts of 
$10,552,849, which is below the SBA threshold for small agricultural 
service firms. Therefore, using the above data, and assuming a normal 
distribution, the majority of producers and handlers of pears in the 
production area may be classified as small entities.
    This proposal would decrease, from 14 pounds to 13 pounds, the 
maximum acceptable pressure for early season Anjou variety pears 
shipped throughout the Continental United States and to Canada from 
during the period August 15 to November 1. The maximum pressure for 
Anjou pear shipments to Mexico during this period would remain 
unchanged at 14 pounds. In addition, this action would remove the 
handling requirement exemption for early season Anjou pear shipments of 
8,800 pounds or less. All other requirements in the Order's handling 
regulations would remain unchanged. Authority for this action is 
contained in Sec.  927.51.
    This proposed rule is expected to benefit the growers, handlers, 
and consumers of fresh pears. The Committee anticipates that this 
modification would lead to greater returns to handlers and growers by 
encouraging repeat consumption of fresh Anjou pears due to an improved 
eating experience.
    Prior to arriving at its recommendation to modify the handling 
regulation, the Committee discussed various alternatives, including 
maintaining the current handling regulation, decreasing the acceptable 
pressure further, shortening the regulation period, and extending the 
requirement to shipments to Mexico. After several failed motions and 
much deliberation, the Committee determined that the recommended 
modification would most benefit the industry and consumers of pears.
    The Committee's meeting was widely publicized throughout the 
northwest pear industry. All interested persons were invited to attend 
the meeting. Like all Committee meetings, the May 26, 2020, meeting was 
a public meeting, and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit comments on this proposed rule, including the regulatory and 
information collection impacts of this action on small businesses.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by the OMB and assigned OMB No. 0581-0189, Fruit 
Crops. No changes in those requirements would be necessary as a result 
of this proposed rule. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would 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

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requirements and duplication by industry and public sector agencies. 
USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed 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.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposed rule. 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, Reporting and recordkeeping requirements, 
Pears.

    For the reasons set forth in the preamble, 7 CFR part 927 is 
proposed to be 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. Section 927.316 is revised to read as follows:


Sec.  927.316   Handling Regulation.

    During the period August 15 through November 1, no person shall 
handle any fresh Beurre D'Anjou variety pears unless such pears meet 
the following requirements:
    (a) Shipments of fresh Beurre D'Anjou variety pears throughout the 
Continental United States or to Canada shall have a certification by 
the Federal-State Inspection Service, issued prior to shipment, showing 
that the core/pulp temperature of such pears has been lowered to 35 
degrees Fahrenheit or less and any such pears have an average pressure 
test of 13 pounds or less.
    (b) Shipments of fresh Beurre D'Anjou variety pears to Mexico shall 
have a certification by the Federal-State Inspection Service, issued 
prior to shipment, showing that the core/pulp temperature of such pears 
has been lowered to 35 degrees Fahrenheit or less and any such pears 
have an average pressure test of 14 pounds or less.
    (c) The handler shall submit, or cause to be submitted, a copy of 
the certificate issued on the shipment to the Fresh Pear Committee.

Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-22169 Filed 10-16-20; 8:45 am]
BILLING CODE P