Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-18-072.

     Title of Rule and Other Identifying Information: This proposal is the result of the department's ongoing commitment to review and revise its rules, when necessary, as mandated by Executive Order 97-02. The department proposes to amend chapter 16-439 WAC, Pears, summer and fall, by making amendments that are necessary to update the chapter and increase its clarity. This rule-making proposal is only to make the rule language clear and readable; pear standards are not changing.

     Hearing Location(s): Tree Fruit Research Center (park on Western), Conference Room (Large Conference Room), 1100 North Western Avenue, Wenatchee, WA 98801, on Thursday, December 4, 2008, at 1:00 p.m.; and at the WSDA Yakima Office, Conference Room 238 (Primary Conference Room), Suite 226, 21 North First Avenue, Yakima, WA 98902, on Friday, December 5, 2008, at 9:00 a.m.

     Date of Intended Adoption: December 16, 2008.

     Submit Written Comments to: Teresa Norman, Rules Coordinator, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by 5:00 p.m. on December 8, 2008.

     Assistance for Persons with Disabilities: Contact Rachel Lopez by November 26, 2008, (360) 902-1976, TTY 800-833-6388.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department proposes to amend chapter 16-439 WAC, Pears, summer and fall, by making amendments that are necessary to update the chapter and increase its clarity. All sections are amended or removed and new sections are added to accomplish this intent. This rule-making proposal is only to make the rule language clear and readable; pear standards are not changing.

     Reasons Supporting Proposal: This proposal is the result of the department's ongoing commitment to review and revise its rules, when necessary, as mandated by Executive Order 97-02.

     Statutory Authority for Adoption: Chapter 15.17 RCW, Standards of grades and packs, specifically RCW 15.17.030 Enforcement -- Director's duties -- Rules and chapter 34.05 RCW, Administrative Procedure Act.

     Statute Being Implemented: Chapter 15.17 RCW, Standards of grades and packs.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Washington state department of agriculture, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Quigley, Program Manager, P.O. Box 42560, Olympia, WA 98504-2560, (360) 902-1833.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires an agency to prepare a small business economic impact statement for proposed rules that impose a more than minor cost on the business in an industry. The proposed change would not impose "more than minor impact" upon the regulated industry.

     RCW 19.85.040(1) requires that an agency determine whether the proposed rule will have a disproportionate impact on small businesses by comparing the cost of compliance for small business with the cost of compliance for the 10% of businesses that are the largest businesses required to comply. The proposed change would not impose "more than minor impact" upon the regulated industry.

     A cost-benefit analysis is not required under RCW 34.05.328. Washington state department of agriculture is not a named agency in RCW 34.05.328.

October 22, 2008

Dennis Hannapel

Assistant Director

OTS-1867.1

AMENDATORY SECTION(Amending Order 1033, filed 10/10/66, effective 11/10/66)

WAC 16-439-001   ((Promulgation.)) Purpose.   ((I, Donald W. Moos, director of agriculture of the state of Washington, by virtue of the authority vested in me under chapter 15.17 RCW, after due notice and public hearing held at Olympia, Washington on September 30, 1966, (pursuant to chapters 42.32 and 34.04 RCW), do hereby establish the Washington)) This chapter establishes standards for Bartlett and other summer and fall pears((, container minimum size and marking requirements)) that are packed and marketed within the state of Washington.

[Order 1033, Promulgation, filed 10/10/66, effective 11/10/66; Order 930, Promulgation, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (3))) chapter:

     "Aggregate area" means areas under consideration on a pear's surface that may be combined into an area with a diameter equal to the maximum diameter specified.

     "Carefully picked" means pears do not show evidence of either rough handling or having been on the ground.

     "Clean" means reasonably free from dust, dirt, or honey dew.

     (((4) "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.

     (5) "Aggregate area" means that all the areas of the blemish under consideration may be assembled into one circular area of the maximum diameter specified.)) "Department" means the Washington state department of agriculture.

     "Director" means the director of the department or the director's representative.

     "Free from damage" means the fruit is free from any blemish that materially affects the appearance of the fruit.

     "Free from serious damage" means the fruit is not seriously deformed or disfigured or the edible or culinary value is not seriously affected by defects. Healed insect depressions or other surface blemishes that do not prevent the cutting of one good half are not considered serious damage.

     "Hard end pear" means a pear that shows 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 a pear with an abnormally dry and tough or woody flesh near the calyx. Hard end pears are considered defects of all grades.

     "Mature" means pears that have reached a stage of maturity that will ensure proper completion of the ripening process.

     "Not seriously misshapen" means the pear must have a shape that permits the cutting of three fairly uniform quarters, is not excessively flattened or elongated for the variety, and is free from excessive creases or folds.

     "Rat tail pear" means any rat tail shaped or second bloom pear that is tough or ridged. Rat tail pears are considered defects of all grades.

     "Sound" means pears, at the time of packing, are free from visible defects such as decay, breakdown, scald, bitter pit, or from physical injury that affects keeping quality.

     "Well formed" means having the shape characteristic of the variety.

[Order 1033, § 1, filed 10/10/66, effective 11/10/66; Order 930, General Regulation, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     D. When fancy and C grade pears are packed together, the packages may be marked "combination fancy and C grade," but must contain at least 50%, by count, of pears meeting the requirements of fancy grade.)) (1) The following grades apply to summer and fall pears packed and marketed in Washington state:

     (a) Washington extra fancy;

     (b) Washington fancy;

     (c) Washington combination; and

     (d) Washington C grade.

     (2) All pears packed and marketed in Washington state that are graded to U.S. grade standards must also meet the requirements of the lowest Washington state grade or better.

[Order 1033, Regulation 1, filed 10/10/66, effective 11/10/66; Order 930, Regulation 1, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (2) Bartlett pears must have a characteristic pyriform shape of a length not less than one and one-fourth times the diameter of the pear. Bartlett pears may be slightly irregular as long as the shape does not detract from the general appearance of the pear.

     (3) Other varieties shall have shapes characteristic of the varieties or slightly irregular shapes as long as they do not detract from the general appearance of the fruit.

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     (1) When extra fancy and fancy pears are packed together, the packages may be marked "Washington combination extra fancy and fancy." At least fifty percent of the pears, by count, shall be extra fancy.

     (2) When extra fancy, fancy, and C grade pears are packed together, the packages may be marked "Washington combination extra fancy, fancy, and C grade." At least fifty percent of the pears, by count, must be extra fancy.

     (3) When extra fancy and C grade pears are packed together, the packages may be marked "Washington combination extra fancy and C grade." At least fifty percent of the pears, by count, must be extra fancy.

     (4) When fancy and C grade pears are packed together, the packages may be marked "Washington combination fancy and C grade." At least fifty percent of the pears, by count, must be fancy.

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     (a) Slight handling bruises and carton bruises that are incident to proper handling.

     (b) Sunburn or sprayburn, if there is no change in the normal color of the fruit, softening of the flesh, or blistering or cracking of the skin.

     (c) Russeting at the calyx end of Bartlett pears, as long as the russeting is not visible for more than one-half inch when the pear is placed calyx end down on a flat surface.

     (d) Light russeting that is not characteristic of the variety, when the affected area does not exceed an aggregate of fifteen percent of the surface.

     (e) Slight pebbling on Bartlett pears that does not materially detract from the appearance.

     (2) In addition, a pear may show one or a combination of the following as long as the aggregate area does not exceed three-fourths inch in diameter:

     (a) Limb rubs that are light, not soft, and affect an aggregate area not to exceed three-fourths inch in diameter.

     (b) Hail marks when the injury is superficial and affects an aggregate area not to exceed one-fourth inch in diameter.

     (c) Heavy russeting, such as is characteristic of frost injury, as long as the aggregate area does not exceed one-half inch in diameter.

     (d) Two slight, healed depressions that do not materially affect the general appearance of the fruit.

     (e) Sooty blotch that affects an aggregate area of ten percent when the blotch is slight or thin, or one-half inch when the blotch is moderate, or three-eights inch when the blotch is heavy.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 16-439-218   Serious damage defects.   (1) More than the following shall be considered serious damage:

     (a) Slight handling bruises and carton bruises that are incident to proper handling.

     (b) Sunburn or sprayburn, if there is only a slight change to the normal color of the fruit and no softening of the flesh or blistering or cracking of the skin.

     (c) Russeting that is characteristic of the variety.

     (d) Pebbling on Bartlett pears that does not seriously affect the culinary or edible value of the fruit.

     (e) Limb rubs that are light, not soft, and do not affect an aggregate area to exceed ten percent of the surface of the fruit.

     (f) Drought spots that affect an aggregate area not to exceed one-fourth inch in diameter.

     (2) In addition, a pear may show any one or a combination of the following as long as the aggregate area does not exceed the maximum area specified for each variety mentioned below:

     (a) Heavy or dark heavy limb rubs that are not soft and do not affect an aggregate area exceeding three-fourths of an inch in diameter.

     (b) Hail marks when they affect an aggregate area exceeding three-fourths inch in diameter.

     (c) Frost damage.

     (i) Frost rings on Bartlett pears that do not completely encircle the pear and when the surface is only slightly grooved.

     (ii) Frost damage on Bartlett pears such as occurs at the calyx end and does not materially detract from the appearance of the pear.

     (iii) On other varieties other than Bartlett, heavy russeting by frost that is not soft and affects an aggregate area not to exceed three-fourths inch in diameter.

     (d) Scab spot affecting an aggregate area not to exceed one-half inch in diameter.

     (e) Shallow healed depressions not seriously affecting the general appearance of the fruit and affecting an aggregate area not to exceed three-fourths of an inch in diameter.

     (f) Sooty blotch that affects an aggregate area of not more than fifty percent of the surface when the spots are thin and widely scattered, or not more than one and one-fourth inch in diameter when the blotch is moderate, or not more than three-fourths inch in diameter when the blotch is heavy.

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     (a) In order to allow for variations incident to commercial grading and handling, ((in each of the foregoing grades)) not more than ((10%)) ten percent, by count, of the pears in any lot may be below the requirements of the grade, and not more than ((one-tenth)) one percent, by count, of ((this)) that amount ((shall be)) is allowed for decay ((and/)) or internal breakdown. Slight imperfections ((which)) that are not discernible in good commercial sorting practice ((shall not be)) are not considered ((as)) defects of grade.

     (b) ((In addition to the above, a 10% tolerance for a total of all defects from the standards defined for uniformity of size, wrapping, and tightness of pack shall be permitted, and shall be computed by counting, weighing, or measuring the specimens judged to be below the standard.

     (c))) In order to allow for variations incident to proper sizing, not more than five percent, by count, of the pears in any lot may be below any specified minimum size and not more than ten percent, by count, of the pears in any lot may be above any specified maximum size.

     (((d))) (c) For a tolerance of ten percent or more, individual packages in any lot may contain not more than one and one-half times the tolerance specified. For tolerances less than ten percent, individual packages in any lot may contain not more than double the tolerance specified. At least one specimen that does not meet the requirements is allowed in any one package.

     (2) Additional tolerance: No more than fifteen percent of the pears in any container may have more than one skin break measuring one-eighth inch to three-sixteenths inch, inclusive, in diameter or depth. Small inconspicuous skin breaks((,)) less than one-eighth inch in diameter or depth((, shall)) are not ((be)) considered damage. ((In addition, not more than 15 percent of the pears in any container may have not more than one skin break from one-eighth inch to three-sixteenths inch, inclusive, in diameter or depth.

     (2) Tolerances which apply after pears have been placed in storage or in transit in Washington state: 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.))

[Order 1033, Regulation 2, filed 10/10/66, effective 11/10/66; Order 930, Regulation 2, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

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     (2) Infested culls((. Pears which are not graded in conformity with the foregoing grades and which contain 5% or more)) are pears that do not conform to the grades and standards of pears in this chapter and contain at least five percent infestation from codling moth, San Jose scale, ((and)) or other horticultural pests((, shall be designated as "infested culls.")).

[Order 1033, Regulation 3, filed 10/10/66, effective 11/10/66; Order 930, Regulation 3, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (a))) The following lists the terms and describes the degrees of uniform sizing required of pears packed in containers. Packing shall conform to industry practices.

     (1) A ten percent tolerance for all defects from the standards for uniformity of size, wrapping, and tightness of pack is allowed. To compute the tolerance, the pears considered below standard must be counted, weighed, or measured.

     (2) Uniform ((when the container contains not more than two sizes, the majority of which must be of the size with which the container is marked;

     (b) Fairly uniform when the container actually contains a range of not more than three sizes, one size larger and one size smaller than the size with which the container is marked;

     (c) Slightly irregular when not more than 10% of the pears in the container exceed the range of three sizes mentioned above;

     (d) Irregular when more than 10% of the pears in the container exceed the range of three sizes mentioned above. (Note: Packages in which the size must be described as "irregular" do not comply with the state grading and packing regulations and cannot legally be shipped.))): The container must not contain more than two sizes of pears, and the majority of the pears must be the size that is marked on the container.

     (3) Fairly uniform: The container contains a range of three sizes or less, and pears are one size larger and/or one size smaller than the size marked on the container.

     (4) Slightly irregular: No more than ten percent of the pears in the container can exceed the three-size range "fairly uniform" requirement in subsection (3) of this section.

     (5) Irregular:

     (a) More than ten percent of the pears in the container exceed the three-size range mentioned in the fairly uniform requirement.

     (b) Packages describing the content size as "irregular" do not comply with Washington state grading and packing regulations and cannot be legally shipped in Washington state.

     (6) Standard carton packs:

     (a) Except when jumbled, all packed pears must be arranged in clean cartons according to industry approved and recognized methods.

     (b) Pears in standard carton packs must be tightly packed and all packages must be well filled.

     (c) Each wrapped pear must be well wrapped.

     (7) Tray packs:

     (a) All pears packed in tray pack containers must be uniformly sized and arranged according to the approved method for the tray pack.

     (b) Pears packed in trays must be properly sized to minimize movement.

     (c) Tray packs must be packed with the same size and count of fruit as listed on the container.

[Order 1033, Regulation 4, filed 10/10/66, effective 11/10/66; Order 930, Regulation 4, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (2) Upon request, the director may((, after receiving application, grant)) approve the use of experimental ((packages)) shipping containers.

[Order 1033, Regulation 6, filed 10/10/66, effective 11/10/66; Order 930, Regulation 6, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (1) Correct name of the variety or marked "variety unknown," ((the)) or when more than one variety and/or commodity is in the container, the name of each variety and/or commodity;

     (2) Name and address of the grower, packer, or shipper((, and his address, the));

     (3) Grade((, and the));

     (4) Correct number of pears ((or)) and the net contents either in terms of dry measure or weight. ((Any of these marks may be printed on the label but in case they are not, they must be stamped on the end of the container. The grower's, packer's, or shipper's name and address, if not included on the label, must be placed either in line with the grade marks above the label or on the opposite end of the container.

     (2) When pears are packed in other than standard boxes or tray cartons, the container shall be marked with the correct number of pears and the net weight.)) (5) Consumer packages and jumbled packs must be marked with minimum diameter. Count may be used if pears can be readily counted.

[Order 1033, Regulation 7, filed 10/10/66, effective 11/10/66; Order 930, Regulation 7, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     (2) ((When U.S. grades are used, pears must meet the requirements of the lowest Washington state grade or better.)) The department maintains a copy of this document for public inspection. The information may be found on the internet at: http://www.ams.usda.gov/standards/pearsmer.pdf.

[Order 1033, Regulation 8, filed 10/10/66, effective 11/10/66; Order 930, Regulation 8, filed 8/6/63; Emergency Order 922, filed 6/7/63.]

     The following sections of the Washington Administrative Code are decodified as follows:

Old WAC Number	New WAC Number
16-439-230	16-439-216
16-439-280	16-439-205

REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 16-439-250

Containers.

© Washington State Code Reviser's Office