Regulations Issued Under the Export Apple and Pear Act; Relaxation of Grade Requirements for Apples and Pears Shipped to Pacific Ports of Russia

DEPARTMENT OF AGRICULTURE

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.

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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 hard-end; 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

[[Page 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

non-profit 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 Sec. 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:

[[Page 1034]]

Sec. 33.10 Minimum requirements.

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(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 hard- end; 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 hard-end 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]

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