1032 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

Dated: October 1, 1996.

Dan Glickman,

Secretary of Agriculture.

For Subpart F.

Eugene Moos,

Under Secretary for Farm and Foreign

Agriculture Services.

For Subpart J.

Dated: October 2, 1996.

James R. Lyons,

Under Secretary for Natural Resources and

Environment.

[FR Doc. 97–360 Filed 1–7–97; 8:45 am]

BILLING CODE 3410–14–M

Agricultural Marketing Service

7 CFR Part 33

[Docket No. FV96–33–1 FIR]

Regulations Issued Under the Export

Apple and Pear Act; Relaxation of

Grade Requirements for Apples and

Pears Shipped to Pacific Ports of

Russia

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting as

a final rule, with appropriate

modifications, the provisions of an

interim final rule relaxing the minimum

grade requirements issued under the

Export Apple and Pear Act for U.S.-

grown apples and pears shipped to

Pacific ports of Russia. Container

marking provisions also are relaxed for

such shipments. These changes are

designed to develop Eastern Russia as

an export market for apples and pears.

This rule was recommended by the

Northwest Horticultural Council

(Council), an organization representing

the Northwest fruit industry.

EFFECTIVE DATE: This final rule becomes

effective January 9, 1997.

FOR FURTHER INFORMATION CONTACT:

Dennis L. West, Marketing Specialist,

Northwest Marketing Field Office,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, 1220 SW Third Avenue,

room 369, Portland, Oregon 97204–

2807; telephone: (503) 326–2724, Fax #

(503) 326–7440; or William R.

Addington, Marketing Specialist,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, D.C. 20090–6456;

telephone: (202) 720–2412, Fax # (202)

720–5698. Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2523–S, Washington, D.C. 20090–6456;

telephone: (202) 720–2491, Fax # (202)

720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under authority of the Export

Apple and Pear Act, as amended, [7

U.S.C. 581–590], hereinafter referred to

as the ‘‘Act.’’ This rule amends

‘‘Regulations Issued Under Authority of

the Export Apple and Pear Act’’ [7 CFR

part 33].

The Department 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. 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.

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. 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.

The Act and regulations effective

thereunder apply to exporters and

export carriers of apples and pears. In

the United States, there are

approximately 450 firms which pack

and export apples and 300 firms which

pack and export pears that are

potentially subject to regulations under

the authority of the Act. Small

agricultural service firms, which

include firms that pack and export

apples and pears, have been defined by

the Small Business Administration (13

CFR 121.601) as those having annual

receipts of less than $5,000,000. The

majority of apple and pear exporters

regulated under the Act may be

classified as small entities. This rule

relaxes the minimum grade

requirements issued under the Act for

U.S.-grown apples and pears shipped

only to Pacific ports of Russia.

Container marking provisions also are

relaxed for such shipments. This rule

provides all exporters additional

flexibility in marketing apples and pears

of different grades and quality in

Russian port cities and areas along the

Pacific Ocean. These changes are

designed to develop export markets for

apples and pears in these areas. This

rule does not preclude shipments of

apples and pears of higher than the

minimum quality from being shipped to

Russian Pacific ports. This benefits both

large and small exporters of apples and

pears. Therefore, the AMS has

determined that this action will not

have a significant economic impact on

a substantial number of small entities.

Section 33.10 of the ‘‘Regulations

Issued Under Authority of the Export

Apple and Pear Act’’ establishes

minimum grade and container marking

requirements for export shipments of

apples and pears. Prior to the issuance

of the interim final rule, export

shipments of apples were required to

meet a minimum grade of U.S. No. 1 or

U.S. No. 1 Early as specified in the

United States Standards for Grades of

Apples (7 CFR part 51, sections 51.300–

51.323). Exports of summer and fall

pears were required to meet a minimum

grade of U.S. No. 2 as specified in the

United States Standards for Grades of

Summer and Fall Pears (7 CFR part 51,

sections 51.1260–51.1280). Exports of

winter pears were required to meet a

minimum grade of U.S. No. 2 as

specified in the United States Standards

for Grades of Winter Pears (7 CFR part

51, sections 51.1300–51.1323).

Additional restrictions for apple maggot

and San Jose scale apply to both apples

and pears.

This final rule continues in effect the

reduction of the minimum grade

requirements, as follows:

The minimum grade for fresh apples

exported to Russian Pacific ports is

reduced to U.S. Utility grade (7 CFR part

51, section 51.303) or U.S. No. 1 Hail (7

CFR part 51, section 51.302(b)) for

apples damaged by hail.

The minimum requirements for

summer and fall pears exported to

Russian Pacific ports are listed in the

regulatory text of this final rule. The

requirements provide that the pears be

of one variety that are mature, hand

picked, clean, sound and free from hardend; and free from serious damage

caused by broken skin, insects, disease,

hail marks, limbrubs, heavy russet, or

other means; and not so excessively

elongated or flattened as to preclude the

cutting of one good half. The

requirements also include necessary

definitions and explanations of some

provisions and a list of tolerances which

are applied to each lot at the time of

packing.

Finally, the minimum requirements

for winter pears exported to Russian

Pacific ports also are listed in the

regulatory text of this final rule. The

requirements provide that the pears be

of one variety which are mature, hand
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 1033

picked, clean, sound, not very seriously

misshapen, free from black end, free

from damage caused by hard end,

broken skins, and free from serious

damage caused by cork spot or bruises.

‘‘Very seriously misshapen’’ means that

the pear is excessively flattened,

elongated for the variety, or is

constricted or deformed so it will not

cut one good half or two fairly uniform

quarters. The requirements also include

necessary definitions and explanations

of some provisions and a list of

tolerances which are applied to each lot

at the time of packing.

Handlers may ship apples and pears

of higher grade quality than the

minimum requirements established in

this regulation.

The additional restrictions for apple

maggot and San Jose scale continue to

apply to apples and pears shipped to

any foreign destination.

The Council, an organization that

represents a substantial portion of the

fruit industry in the Northwest States of

Oregon, Washington, and Idaho,

recommended these changes in the

current export regulations.

The Council advised that a change in

requirements is needed to develop

export markets for apples and pears to

Pacific ports of Russia. According to the

Council, exporters indicate that there is

a demand in this relatively new export

market of Eastern Russia for apples and

pears of a lower grade than the previous

requirements allowed. This change will

increase sales opportunities in a market

willing to accept apples and pears that

are lower in overall quality and less

uniform in appearance than most export

markets will accept.

The Council reported that weather

and growing conditions are expected to

adversely affect the appearance and

quality of a significant portion of the

1996 pear crop. The Council believes

this change will facilitate market

development efforts for apples and

pears to Pacific ports of Russia. Apples

and pears which are not shipped for

fresh consumption in either domestic or

foreign markets are usually disposed of

in processing outlets, such as juice.

Processing outlets are not normally as

profitable as fresh market outlets.

The interim final rule concerning this

action was published in the September

26, 1996, Federal Register (61 FR

50421), with a 30-day comment period

ending October 28, 1996. One comment

was received in favor of the interim

final rule suggesting several revisions.

The comment was submitted by

Northwest Fruit Exporters (NFE), a nonprofit organization, whose members

grow, pack, ship, and export fresh

apples and pears regulated under the

Act. NFE members are located in

Washington, Oregon, and Idaho. NFE

suggested that the U.S. Utility grade not

be added as an option for apple exports

because the intent of the rule is to allow

shipments of hail damaged apples. NFE

suggested using U.S. No. 1 Hail grade

which is specifically designed to allow

shipment of hail damaged apples. NFE

stated further that the Utility grade

makes an allowance for other quality

factors but remains restrictive regarding

hail damaged apples. The Department

believes that it would not be appropriate

to remove the U.S. Utility grade because

it allows exporters the opportunity to

sell apples of a lower grade even though

they are not hail damaged. This

provision is intended to provide

exporters with flexibility. Therefore, no

change is being made to the rule in

response to this comment.

NFE pointed out the word ‘‘apples’’ is

incorrectly used in paragraph (b) in

Section 33.10. The paragraph refers to

pears. The Department will make this

correction in the regulatory text.

NFE pointed out that the proposed

general definition of ‘‘damage by hard

end’’ does not apply to the quality

requirements for winter pears as stated

in Section 33.10 (b)(2) and should be

replaced with language commonly used

to describe damage to winter pears. The

following language was recommended:

‘‘Damage by skin break means any pear

with one skin break larger than 3⁄16 inch

in diameter or depth, or with more than

one skin break 1⁄8 inch or larger in

diameter or depth. Such pear shall be

considered damaged, and scored against

the grade tolerance.’’ The Department

concurs with this recommended change.

The regulatory text will be modified

accordingly.

NFE further suggested additional

language establishing grade defect lot

tolerances be included under Section

33.10(b)(2) because grade defect

tolerances for a lot of pears were

omitted. The Department inadvertently

omitted lot tolerances for pears and

therefore, the regulatory text will be

modified accordingly.

NFE went on to suggest that grade

defect tolerances are applicable at the

time of packing; however, subsequent to

storage and/or transit, only permanent

type quality defects should be

considered as grade defects and applied

to the stated grade tolerance. NFE stated

that the provision ‘‘condition after

storage or transit’’ exists in the current

U.S. Standards for Grades of Winter

Pears and a new paragraph should be

added to section 33.10 to capture this

type of language. The Department

recognizes that this provision currently

exists in the U.S. Standards for Grades

of Winter Pears as well as in the U.S.

Standards for Grades of Summer/Fall

pears and apples. For the sake of clarity,

the regulatory text will be modified by

adding a new paragraph (c) to state that

decay, scald or any other deterioration

which may have developed on apples or

pears after they have been in storage or

transit shall be considered as affecting

condition and not the grade.

Finally, NFE suggested that

requirements be modified to permit

shipments of U.S. No. 1 Hail grade

apples to Mexico, using the same

rationale and justification for this

request as stated for shipments of U.S.

No. 1 Hail grade apples to Russia. The

Department believes this

recommendation is beyond the scope of

the interim final rule.

After analyzing the comment received

and other available information, the

Department finds that this final rule is

appropriate.

It is further found that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register (5

U.S.C. 553) because: (1) This rule

continues in effect a relaxation of the

grade requirements for apples and pears

shipped to Pacific ports of Russia; (2)

exporters have indicated that sales

opportunities exist in Eastern Russia

and shipments have already begun to

take advantage of these opportunities;

(3) apples and pears are shipped

throughout the year, and this rule

should be in effect promptly so

exporters can make marketing plans;

and (4) a 30-day comment period was

provided for in the interim final rule

and recommended modifications should

be implemented as soon as possible.

List of Subjects in 7 CFR Part 33

Administrative practice and

procedure, Apples, Exports, Pears,

Reporting and record keeping

requirements.

Accordingly, the interim rule

amending 7 CFR part 33 which was

published at 61 FR 50421 on September

26, 1996, is adopted as a final rule with

the following changes:

PART 33—EXPORT APPLE AND PEAR

ACT

1. The authority citation for 7 CFR

part 33 continues to read as follows:

Authority: 7 U.S.C. 581–590.

2. In § 33.10, paragraphs (c) and (d)

are redesignated as (d) and (e),

respectively; a new paragraph (c) is

added; and paragraph (b) is revised to

read as follows:
1034 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

§ 33.10 Minimum requirements.

* * * * *

(b) Pears grade at least U.S. No. 2 as

specified in the United States Standards

for Summer and Fall Pears, such as

Bartlett, Hardy, and other similar

varieties (Sections 51.1260–51.1280 of

this chapter), or in the United States

Standards for Winter Pears, such as

Anjou, Bosc, Comice, and other similar

varieties (Sections 51.1300–51.1323 of

this chapter), do not contain apple

maggot, and do not have more than 2

percent, by count, of pears with apple

maggot injury, nor more than 2 percent,

by count, of pears infested with San Jose

scale or scale of similar appearance:

Provided, That the minimum quality

requirements for pears exported to

Pacific ports of Russia are as follows:

(1) Summer and fall pears shall be of

one variety which are mature, hand

picked, clean, sound and free from hardend; and free from serious damage

caused by broken skin, insects, disease,

hail marks, limbrubs, heavy russet, or

other means; and shall not be so

excessively elongated or flattened as to

preclude the cutting of one good half.

Broken skin must not exceed 1/4 inch

in diameter. The following definitions

shall apply to all varieties:

Clean means reasonably free from

dust, dirt, or honey dew.

Free from serious damage means

defects when taken singly or

collectively shall not seriously affect the

edible or culinary value of the fruit.

Hand picked means that pears do not

show evidence of rough handling or of

having been on the ground.

Hard-end means pears which show an

abnormally yellow or green color at the

blossom end or an abnormally smooth

rounded base with little or no

depression at the calyx, or if the flesh

near the calyx is abnormally dry and

tough or woody. Pears affected by hardend shall be considered defects. Rat-tail

shaped pears, or second bloom pears

that are tough or ridged shall be

considered defects. At the time of

packing, not more than 10 percent, by

count, of any lot may be below the

requirements of the grade, and not more

than one-tenth of this amount or 1%

shall be allowed for decay and/or

breakdown. For a tolerance of 10

percent or more, individual packages in

any lot may contain not more than one

and one-half times the tolerance

specified, except that when the package

contains 15 specimens or less,

individual packages may contain not

more than double the tolerance

specified. For a tolerance of less than 10

percent, individual packages in any lot

may contain not more than double the

tolerance specified, provided at least

one specimen which does not meet the

requirements shall be allowed in any

one package. Slight imperfections which

are not discernible in good commercial

sorting practice shall not be considered

as defects. Small inconspicuous skin

breaks of less than 1⁄8 inch in diameter

or depth shall not be considered as

damage, and not more than 15 percent

of the pears in any container may have

not more than one skin break from 1⁄8

inch to 3⁄16 inch, inclusive, in diameter

or depth. After pears have been placed

in storage, or in transit; scald,

breakdown, decay, bitter pit, or physical

injury affecting keeping quality, which

may have developed or may only have

become evident after pears are packed,

are defined as applying to condition

rather than to grade. Pears also shall not

contain apple maggot, and shall not

have more than 2 percent, by count, of

pears with apple maggot injury, nor

more than 2 percent, by count, of pears

infested with San Jose scale or scale of

similar appearance.

Mature means having reached the

stage of maturity which will insure a

proper completion of the ripening

process. Firmness of the flesh shall be

considered only in connection with

other factors to determine the degree of

maturity.

Sound means that pears at time of

packing are free from visible defects

such as decay, breakdown, scald, bitter

pit, or physical injury affecting keeping

quality. The following conditions shall

not be considered serious damage:

healed insect depressions or other

surface blemishes which do not prevent

the cutting of one good half;

(2) Winter pears shall be of one

variety which are mature, hand picked,

clean, sound, not very seriously

misshapen, free from black end, free

from damage caused by hard end,

broken skins, and from serious damage

caused by cork spot or bruises. The

following definitions shall apply to all

varieties:

Black end is evidenced by an

abnormally deep green color around the

calyx, or black spots usually occurring

on one-third of the surface nearest to the

calyx, or by an abnormally shallow

calyx cavity.

Clean means free from excessive dirt,

dust, spray residue, or other foreign

material. Damage by skin break means

any pear with one skin break larger than

3⁄16 inch in diameter or depth, or with

more than one skin break 1⁄8 inch or

larger in diameter or depth. Such pear

shall be considered damaged, and

scored against the grade tolerance.

Damage by skin break means any pear

with one skin break larger than 3⁄16 inch

in diameter or depth, or with more than

one skin break 1⁄8 inch or larger in

diameter or depth. Such pear shall be

considered damaged, and scored against

the grade tolerance.

Handpicked means that the pears do

not show evidence of having been on

the ground.

Hard end is an abnormal yellow color

at the blossom end, or an abnormally

smooth, rounded base with little or no

depression at the calyx, or if the flesh

near the calyx is abnormally dry and

tough or woody.

Mature means that the pear has

reached the stage of maturity which will

insure the proper completion of the

ripening process.

Overripe means dead ripe, very mealy

or soft, past commercial utility.

Serious damage by cork spot is when

more than two cork spots are visible

externally, or when the visible external

injury affects an aggregate area of more

than 1⁄2 inch in diameter. Serious

damage by bruising is bruising which

seriously affects the appearance, edible

or shipping quality. For a tolerance of

10 percent or more, individual packages

in any lot may contain not more than

one and one-half times the tolerance

specified, except that when the package

contains 15 specimens or less,

individual packages may contain not

more than double the tolerance

specified. For a tolerance of less than 10

percent, individual packages in any lot

may contain not more than double the

tolerance specified, provided at least

one specimen which does not meet the

requirements shall be allowed in any

one package. Pears also shall not

contain apple maggot, and shall not

have more than 2 percent, by count, of

pears with apple maggot injury, nor

more than 2 percent, by count, of pears

infested with San Jose scale or scale of

similar appearance;

(c) Decay, scald or any other

deterioration which may have

developed on apples or pears after they

have been in storage or transit shall be

considered as affecting condition and

not the grade.

* * * * *

Dated: December 31, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–279 Filed 1–7–97; 8:45 am]

BILLING CODE 3410–02–P