[Federal Register Volume 86, Number 55 (Wednesday, March 24, 2021)]
[Rules and Regulations]
[Pages 15561-15563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05926]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 55 / Wednesday, March 24, 2021 / 
Rules and Regulations  

[[Page 15561]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule modifies the handling regulation prescribed 
under the Federal marketing order regulating the handling of pears 
grown in Oregon and Washington.

DATES: Effective April 23, 2021.

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, or 
email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This 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 
Fresh Pear Committee (Committee) locally administers the Order and is 
comprised of growers and handlers of pears operating within Oregon and 
Washington, and a public member.
    The Department of Agriculture (USDA) is issuing this final 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.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 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 no later than 20 days after the 
date of the entry of the ruling.
    This final rule modifies the handling regulation prescribed under 
the marketing order for pears grown in Oregon and Washington. This 
action decreases from 14 pounds to 13 pounds, the maximum acceptable 
pressure for early season Beurre D'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 remains at 14 pounds. In 
addition, this action removes 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 authorizes 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 regulations 
established under the authority of Sec.  927.51. Section 927.316 sets 
forth the handling requirements for fresh Anjou pears.
    At its May 26, 2020, meeting, the Committee 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. 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 represented very 
little, if any, Anjou production.
    The Committee 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

[[Page 15562]]

purchase. Lowering the maximum pressure requirement by 1 pound, from 14 
pounds to 13 pounds for the Continental United States and Canada, will 
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 will 
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 rule lowers the acceptable pressure, from 14 pounds to 13 
pounds, of early season Anjou pear shipments destined for the 
Continental United States and Canada, and removes the minimum quantity 
exemption for all early season Anjou shipments. It is the Committee's 
determination that this modification will increase consumer preference 
for Anjou pears in the fresh fruit market by delivering a better eating 
experience and will provide increased returns to handlers and growers.

Final 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 final 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 $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 bag 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 
bags 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, the majority of 
producers and handlers of pears in the production area may be 
classified as small entities.
    This final rule decreases 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 remains unchanged at 14 pounds. 
In addition, this action removes 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 remain unchanged. 
Authority for this action is contained in Sec.  927.51.
    This rule is expected to benefit the growers, handlers, and 
consumers of fresh pears. The Committee anticipates that this 
modification will 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 was the most beneficial option for the industry and 
consumers of pears.
    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 are necessary as a result of 
this action. Should any changes become necessary, they would be 
submitted to OMB for approval.
    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. USDA has not identified any relevant 
Federal rules that duplicate, overlap, or conflict with this final 
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 May 26, 2020, meeting was widely publicized 
throughout the pear industry. All interested persons were invited to 
attend the meeting and encouraged to participate in the deliberations 
on all issues. Like all Committee meetings, the meeting was a public 
meeting, and all entities, both large and small, were able to express 
their views on these issues.
    A proposed rule concerning this action was published in the Federal 
Register on October 19, 2020 (85 FR 66283). Copies of the proposal were 
provided by the Committee to its members and handlers. The proposed 
rule was made available through the internet by USDA and the Office of 
the Federal Register. A 60-day comment period ending December 18, 2020, 
was provided to allow interested persons to

[[Page 15563]]

respond to the proposal. Two comments were received. One of the 
comments favored this action, and the other was not supportive of this 
rule.
    The comment that supported the rule did not address the merits of 
this action. The comment not in favor of the rule challenged the 
assumption--that these changes affecting the ripening of Anjou pears 
would increase sales--as being without merit. This comment also 
included that the removal of the minimum quantity exemption for 
shipments will affect small farmers. The Committee-funded research 
showed that fruits at lower pressures were ripening properly; and 
following consumer preferences, would lead to a better eating 
experience, increased repeat purchases, and increased sales of Anjou 
pears. By removing the minimum quantity exemption for shipments, all 
Anjou pears are subjected to the new regulation which will improve 
grower returns including those to small farmers.
    Accordingly, no changes will be made to the rule as proposed.
    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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule will tend to 
effectuate the declared policy of the Act.

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. 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. 2021-05926 Filed 3-23-21; 8:45 am]
BILLING CODE 3410-02-P