[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22614]


[[Page Unknown]]

[Federal Register: September 13, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket Nos. FV94-916-1-FIR and FV94-916-2-FIR]

 

Nectarines and Peaches Grown in California; Finalize Revised 
Handling Requirements for Fresh Nectarines and Peaches

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule finalizes without change two interim final rules 
which revised the handling requirements for California nectarines and 
peaches by expanding the regulatory periods and by modifying the grade, 
maturity, size, container, and pack requirements for fresh shipments of 
these fruits, beginning with 1994 season shipments. This finalization 
will enable handlers to continue shipping fresh nectarines and peaches 
meeting consumer needs in the interest of producers, handlers, and 
consumers of these fruits.

EFFECTIVE DATE: October 13, 1994.

FOR FURTHER INFORMATION CONTACT: Mark Kreaggor, Marketing Specialist, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, DC 20090-6456; 
telephone: (202) 720-5127; or Terry Vawter, California Marketing Field 
Office, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno, 
California, 93721; telephone: (209) 487-5901.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Marketing Order Nos. 916 and 917 [7 CFR Parts 916 and 
917] regulating the handling of nectarines and peaches grown in 
California, hereinafter referred to as the orders. The orders are 
effective under the Agricultural Marketing Agreement Act of 1937, as 
amended [7 U.S.C. 601-674], hereinafter referred to as the Act.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, 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.
    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 an order may file with the Secretary 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 the Secretary 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after the date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of 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. Marketing 
orders issued pursuant to the Act, and rules issued thereunder, are 
unique in that they are brought about through group action of 
essentially small entities acting on their own behalf. Thus, both 
statutes have small entity orientation and compatibility.
    There are about 300 California nectarine and peach handlers subject 
to regulation under the orders covering nectarines and peaches grown in 
California, and about 1,800 producers of these fruits in California. 
Small agricultural producers have been defined by the Small Business 
Administration [13 CFR 121.601] as those having annual receipts of less 
than $500,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $5,000,000. A majority of 
these handlers and producers may be classified as small entities.
    The Nectarine Administrative Committee (NAC) recommended revision 
of the handling requirements for California nectarines, and the Peach 
Commodity Committee (PCC) recommended revision of the handling 
requirements for California peaches. These committees meet prior to and 
during each season to review the rules and regulations effective on a 
continuous basis for California nectarines and peaches under the 
orders. These committee meetings are open to the public, and interested 
persons may express their views at these meetings. The Department 
reviews committee recommendations and information, as well as 
information from other sources, and determines whether modification, 
suspension, or termination of the rules and regulations would tend to 
effectuate the declared policy of the Act.
    This rule finalizes two interim final rules that revised the 
handling requirements for nectarines in Sec. 916.350 California 
Nectarine Container and Pack Regulation [7 CFR 916.350], and in 
Sec. 916.365 California Nectarine Grade and Size Regulation [7 CFR 
916.365], and for peaches in Sec. 917.442 California Peach Container 
and Pack Regulation [7 CFR 917.442] and in Sec. 917.459 California 
Peach Grade and Size Regulation [7 CFR 917.459]. The first interim 
final rule was issued on March 29, 1994, and published in the Federal 
Register [59 FR 15835, April 5, 1994], and the second interim final 
rule was issued on June 9, 1994, and published in the Federal Register 
[59 FR 31118, June 17, 1994].
    The first interim final rule provided a 30-day comment period 
ending May 5, 1994, and two comments were received. The first comment 
received was from John Kovacevich, Jr., a California peach grower and 
shipper, requesting a change in the peach grade requirements to permit 
handlers to ship peaches with additional amounts of open sutures. The 
change requested by this commentor was included in the first interim 
final rule.
    The second comment received was from Harold McClarty of The HMC 
Group of Kingsburg, California, supporting the weight-count revisions 
made in the handling requirements for fresh nectarines and peaches by 
the first interim final rule, since such revisions will be beneficial 
when they packed fruit in volume-filled containers.
    The second interim final rule provided a 30-day comment period 
ending July 18, 1994, and one comment was received. The comment was 
received from Gary W. Van Sickle, Field Director for the PCC and the 
NAC, reaffirming the PCC's and the NAC's support of the revised pack 
requirements contained in the second interim final rule.

Regulatory Periods (Nectarines)

    The first interim final rule amended paragraph (a) in Sec. 916.350 
and paragraph (a) in Sec. 916.356 to change the regulatory periods in 
each of these sections to April 1 through October 31 each year, so that 
all nectarine shipments made each season are covered by these 
regulatory requirements. Correspondingly, paragraph (a)(7) of 
Sec. 916.356 was revised to change the beginning date of the regulatory 
requirements to April 1 from April 15 each year. Handlers ship fresh 
nectarines during the April 1-April 15 period when the harvest season 
begins early. The NAC unanimously recommended this change. Prior to 
amendment, Secs. 916.350 and 916.356 were effective for the period 
April 15 through October 31 each year.

Container and Pack Requirements (Nectarines)

    Section 916.350 specifies container and pack requirements for fresh 
nectarine shipments. Paragraph (a)(4)(iv) of Sec. 916.350 specifies the 
tray-pack size designations which must be marked on loose-filled or 
tight-filled containers, depending on the size of the fruit. The size 
designations specify the maximum number of nectarines in a 16-pound 
sample for each tray-pack size designation. The first interim final 
rule revised paragraph (a)(4)(iv) of Sec. 916.350 by modifying Table I 
to specify weight-count standards for early-season and mid-season 
nectarine varieties, and by adding a new Table 2 to specify weight-
count standards for late-season nectarine varieties.
    The NAC recommended these revised container marking requirements 
for nectarines after a comprehensive review of the appropriate size 
pack-count relationships between the tray-pack containers and loose-
filled or tight-filled containers for all nectarine varieties. The 
revised provisions more precisely reflect the characteristics of 
different varieties of fruit during the course of the season.
    The first interim final rule also revised Sec. 916.350 by adding a 
proviso to paragraph (a)(4)(iv), and revises Sec. 916.356 by 
redesignating current paragraph (b) as (c) and adding a new paragraph 
(b) to that section. These revisions specify the procedure to be used 
in determining whether nectarines meet the minimum size requirements 
specified for each size category in this section when applying the 16-
pound sample requirements. Under this procedure, a sample consisting of 
one-half of the number of fruit specified for a 16-pound sample for a 
particular size category shall be used, provided such sample weighs at 
least 8 pounds. When one-half the specified number of fruit in a sample 
results in a number ending with one-half a fruit, the smaller full 
number of fruit is used to determine the sample weight. If a sample 
fails with respect to minimum size requirements on the basis of an 8-
pound sample, a full 16-pound sample must be used to determine if the 
fruit meets minimum size requirements.
    The NAC recommended this sampling procedure change after 
determining that the size of nectarines could be adequately determined 
by using an 8-pound sample in most instances, and finding that 
application of this procedure would reduce inspection time and 
inspection costs.
    The second interim final rule further revised Sec. 916.350 by 
adding a new proviso to paragraph (a)(1) specifying that the nectarines 
in any volume-filled container need only be filled to within one inch 
of the top of the container. The second interim final rule also removed 
the proviso in paragraph (a)(1) of Sec. 916.350 reading ``That 
nectarines in any container shall be fairly uniform in size'', because 
such requirements are included within the definition of ``standard 
pack'' in the United States Standards for Grades of Nectarines, and 
therefore are not needed in this paragraph.
    The NAC recommended these revised pack requirements for fresh 
nectarines in volume-filled containers after a comprehensive review of 
changes in the nectarine industry packing practices over the years, and 
the need to make appropriate changes in the pack requirements to reduce 
bruising of the fruit due to excessively tight packs. The revision 
provided handlers with more flexibility in packing their nectarines and 
selecting the appropriate size container for certain volume-filled 
packs to help prevent fruit bruising.

Maturity Requirements (Nectarines)

    Section 916.356 specifies maturity guides for fresh nectarines in 
paragraph (a)(1)(i), including Table I, for fruit being inspected and 
certified as meeting the maturity requirements for ``well matured'' 
fruit. Such maturity guides (e.g., color chips) are specified in Table 
I of Sec. 916.356 for nectarines. The first interim final rule revised 
Table I of paragraph (a)(1)(i) of Sec. 916.356 for nectarines to add 
maturity guides for 18 nectarine varieties and to change the maturity 
guide for two nectarine varieties.
    The NAC recommended these maturity guide changes for these 
nectarine varieties based on a continuing review of their individual 
maturity characteristics, and the identification of the appropriate 
color chip corresponding to the ``well matured'' level of maturity for 
such varieties.

Size Requirements (Nectarines)

    Section 916.356 specifies size requirements for fresh nectarines in 
paragraphs (a)(2) through (a)(9). The first interim final rule revised 
Sec. 916.356 to establish variety-specific size requirements for seven 
nectarine varieties that were produced in commercially significant 
quantities of more than 10,000 packages for the first time during the 
1993 season. Paragraph (a)(3) was revised to include the May Kist 
variety; and paragraph (a)(6) of Sec. 916.356 was revised to include 
the Arctic Rose, Del Rio Rey, Kay Diamond, Late Red Jim, Prima Diamond, 
and Red Glen varieties.
    The first interim final rule also revised Sec. 916.356 to remove 
five nectarine varieties from the variety-specific size requirements 
specified in the section, because less than 5,000 packages of each of 
these varieties were produced during the 1993 season. Paragraph (a)(4) 
of that section was revised to remove the Apache and Early May Grande 
nectarine varieties; and paragraph (a)(6) was revised to remove the 
Nectarine #4, Tasty Free, and 9-86-04-87 nectarine varieties. The 
nectarine varieties removed from the nectarine variety-specific list 
became subject to the non-listed variety size requirements specified in 
paragraphs (a)(7), (a)(8), and (a)(9) of Sec. 916.356.
    The first interim final rule also lowered the minimum size 
requirement for the Zee Grand variety by permitting as many as 88 
nectarines to be packed in a lug box rather than 84 nectarines, and as 
many as 83 nectarines when packed otherwise rather than 75 nectarines. 
This was accomplished by reassigning that variety to paragraph (a)(4) 
from paragraph (a)(5) in Sec. 916.356. The NAC recommended this change 
based on a more accurate evaluation of this variety's sizing and 
maturity characteristics.
    Further, in Sec. 916.356, paragraphs (a)(6)(i) and (a)(9)(i) were 
revised to permit as many as 84 nectarines to be packed in a No. 22D 
standard lug box if they are ``well matured'', and paragraphs 
(a)(6)(ii) and (a)(9)(ii) were revised to permit as many as 75 
nectarines in a 16-pound sample if they are ``well matured''. These 
changes permit late-season nectarine varieties to be shipped to the 
fresh market at a slightly smaller size than in past seasons, if they 
meet the higher ``well matured'' maturity standard. The higher maturity 
standard is important for such smaller size fruit, because it will 
assure that the smaller fruit is of acceptable maturity and quality to 
be shipped to the fresh market in the interest of growers, handlers, 
and consumers.
    In addition, the first interim final rule changed the minimum size 
requirements for several varieties of nectarines packed in loose-filled 
and tight-filled containers by revising the count-size for nectarines 
specified in paragraphs (a)(2)(ii), (a)(3)(ii), (a)(4)(ii), (a)(5)(ii), 
(a)(7)(ii), and (a)(8)(ii). These size changes correspond to the 
weight-count changes made in column 2 of both Table I for early-season 
and mid-season nectarine varieties, and Table 2 for late-season 
nectarine varieties cited in paragraph (a)(4)(iv) of Sec. 916.350.
    The NAC recommended these changes in the minimum size requirements 
based on a continuing review of the sizing and maturity relationships 
for these nectarine varieties, and consumer acceptance levels for 
various sizes of fruit. The first interim final rule was designed to 
establish minimum size requirements for fresh nectarines consistent 
with expected crop and market conditions.

Regulatory Periods (Peaches)

    The first interim final rule amended paragraph (a) in Sec. 917.442 
and paragraph (a) in Sec. 917.459 to change the regulatory periods in 
each of these sections to April 1 through November 23 each year, so 
that all peach shipments made each season are covered by these 
regulatory requirements. Correspondingly, paragraph (b) of Sec. 917.459 
was revised to change the beginning date of the regulatory requirements 
to April 1 from April 15 each year. Handlers ship fresh peaches during 
the April 1-April 15 period when the harvest season begins early. The 
PCC unanimously recommended this change. Prior to amendment, 
Secs. 917.442 and 917.459 were effective for the period April 15 
through November 23 each year.

Container and Pack Requirements (Peaches)

    Section 917.442 currently specifies container and pack requirements 
for fresh peach shipments. Paragraph (a)(4)(iv) of Sec. 917.442 
specifies the tray-pack size designations which must be marked on 
loose-filled or tight-filled containers, depending on the size of the 
fruit. The size designations specify the maximum number of peaches in a 
16-pound sample for each tray pack size designation. The first interim 
final rule revised paragraph (a)(4)(iv) of Sec. 917.442 by modifying 
Table I to specify weight-count standards for early-season and mid-
season peach varieties, and by adding a new Table 2 to specify weight-
count standards for late-season peach varieties.
    The PCC recommended these revised container marking requirements 
for peaches after a comprehensive review of the appropriate size pack-
count relationships between the tray-pack containers and loose-filled 
or tight-filled containers for all peach varieties. The revised 
provisions more precisely reflect the characteristics of different 
varieties of fruit during the course of the season.
    The first interim final rule also revised Sec. 917.442 by adding a 
proviso to paragraph (a)(4)(iv), and revised Sec. 917.459 by 
redesignating current paragraph (d) as (e) and by adding a new 
paragraph (d) to that section. These revisions specify the procedure to 
be used in determining whether peaches meet the minimum size 
requirements specified for each size category in this section when 
applying the 16-pound sample requirement. Under this procedure a sample 
consisting of one-half of the number of fruit specified for a 16-pound 
sample for a particular size category shall be used, provided such 
sample weighs at least 8 pounds. When one-half the specified number of 
fruit in a sample results in a number ending with one-half a fruit, the 
smaller full number of fruit is used to determine the sample weight. If 
a sample fails with respect to minimum size requirements on the basis 
of an 8-pound sample, a full 16-pound sample must be used to determine 
if the fruit meets the minimum size requirements.
    The PCC recommended this sampling procedure change after 
determining that the size of peaches could be adequately determined by 
using an 8-pound sample in most instances, and finding that application 
of this procedure would reduce inspection time and inspection costs.
    The second interim final rule further revised Sec. 917.442 by 
adding a new proviso to paragraph (a)(1) specifying that the peaches in 
any volume-filled container need only be filled to within one inch of 
the top of the container. The PCC recommended these revised pack 
requirements for fresh peaches in volume-filled containers after a 
comprehensive review of changes in the peach industry packing practices 
over the years, and the need to make appropriate changes in the pack 
requirements to reduce bruising of the fruit due to excessively tight 
packs. The revision provided handlers with more flexibility in packing 
their peaches and selecting the appropriate size container for certain 
volume-filled packs to help prevent fruit bruising.

Grade Requirements (Peaches)

    Section 917.459 specifies grade requirements for peaches in 
paragraph (a)(1), requiring peaches shipped fresh to meet the 
requirements of the U.S. No. 1 grade. The first interim final rule 
revised paragraph (a)(1) of Sec. 917.459 to provide an additional 25 
percent tolerance for fruit damaged by open sutures, but not seriously 
damaged, in addition to the 10 percent general lot tolerance currently 
permitted under the U.S. No. 1 grade.
    The PCC recommended this change to permit handlers to ship peaches 
with additional amounts of open sutures. Open sutures are not 
considered to be a serious grade defect since they affect only the 
appearance of the fruit. The open suture condition occurs infrequently 
in peaches and is most likely due to unusual weather and climatic 
conditions. However, this condition can cause considerable economic 
loss to growers when it does occur, because it sometimes affects a 
large portion of their crop.

Maturity Requirements (Peaches)

    Section 917.459 specifies maturity guides for fresh peaches in 
paragraph (a)(1)(i), including Table I, for fruit being inspected and 
certified as meeting the maturity requirements for ``well matured'' 
fruit. Such maturity guides (e.g., color chips) are specified in Table 
I of Sec. 917.459 for peaches. The first interim final rule revised 
Table I of paragraph (a)(1)(i) of Sec. 917.459 for peaches to add 
maturity guides for 19 peach varieties and to change the maturity guide 
for one peach variety.
    The PCC recommended these maturity guide changes for these peach 
varieties based on a continuing review of their individual maturity 
characteristics, and the identification of the appropriate color chip 
corresponding to the ``well matured'' level of maturity for such 
varieties.

Size Requirements (Peaches)

    Section 917.459 specifies size requirements for fresh peaches in 
paragraphs (a)(2) through (a)(6), and paragraphs (b) and (c). The first 
interim final rule revised Sec. 917.459 by redesignating current 
paragraph (a)(6) as paragraph (a)(3) and current paragraphs (a)(3), 
(a)(4), and (a)(5) as paragraphs (a)(4), (a)(5), and (a)(6), 
respectively, so that the size regulations are in sequential order. The 
first interim final rule also revised Sec. 917.459 to establish 
variety-specific size requirements for five peach varieties that were 
produced in commercially significant quantities of more than 10,000 
packages for the first time during the 1993 season. In Sec. 917.459 
redesignated paragraph (a)(5) was revised to include the Crimson Lady 
and Rich May peach varieties; and redesignated paragraph (a)(6) was 
revised to include the Fancy Lady, Snow Ball, and Sugar Lady peach 
varieties.
    The first interim final rule also revised Sec. 917.459 to remove 
four peach varieties from the variety-specific size requirements 
specified in that section, because less than 5,000 packages of each of 
these varieties were produced during the 1993 season. In Sec. 917.459 
redesignated paragraph (a)(5) of Sec. 917.459 was revised to remove the 
Flavor Red peach variety; and redesignated paragraph (a)(6) was revised 
to remove the July Lady, Red Cal, and Redglobe peach varieties. The 
peach varieties removed from the variety-specific list became subject 
to the non-listed variety size requirements specified in paragraphs (b) 
and (c) of Sec. 917.459.
    The first interim final rule also amended Sec. 917.459 by revising 
paragraph (b) to change the ending date of the regulatory requirements 
for the non-listed peach varieties referred to in that paragraph to 
June 30 from July 2, and paragraph (c) to change the beginning date of 
the regulatory requirements for the non-listed peach varieties referred 
to in that paragraph to July 1 from July 3. These changes reflect the 
sizing characteristics of such peach varieties.
    Further, in Sec. 917.459 redesignated paragraph (a)(6)(i) was 
revised to permit as many as 80 peaches to packed in a No. 22D standard 
lug box if they are ``well matured'', and redesignated paragraph 
(a)(6)(iii) was revised to permit as many as 73 peaches in a 16-pound 
sample if they are ``well matured''. These changes permit certain late-
season peach varieties to be shipped to the fresh market at a slightly 
smaller size than in past seasons, if they meet the higher ``well 
matured'' maturity standard. The higher maturity standard is important 
for such smaller size fruit, because it will assure that the smaller 
fruit is of acceptable maturity and quality to be shipped to the fresh 
market in the interest of growers, handlers, and consumers.
    In addition, the first interim final rule changed the minimum size 
requirements for several varieties of peaches packed in loose-filled 
and tight-filled containers by revising the count-size for peaches 
specified in paragraphs (a)(3)(iii), (a)(4)(iii), and (a)(5)(iii). 
These size changes correspond to the weight-count changes made in 
column 2 of both Table I for early-season and mid-season peach 
varieties, and Table 2 for late-season peach varieties cited in 
paragraph (a)(4)(iv) of Sec. 917.442.
    The PCC recommended these changes in the minimum size requirements 
based on a continuing review of the sizing and maturity relationships 
for these peach varieties, and the consumer acceptance levels for 
various sizes of fruit. The first interim final rule was designed to 
establish minimum size requirements for fresh peaches consistent with 
expected crop and market conditions.
    This rule reflects the committees' and the Department's appraisal 
of the need to finalize the revised handling requirements for 
California nectarines and peaches, as specified. The Department's 
determination is that this rule will have a beneficial impact on 
producers, handlers, and consumers of California nectarines and 
peaches.
    This rule finalizes the revised handling requirements for fresh 
California nectarines and peaches consistent with expected crop and 
market conditions, and will help ensure that all shipments of these 
fruits made each season will continue to meet acceptable handling 
requirements established under each of these orders. This rule will 
also help the California nectarine and peach industries continue to 
provide fruit desired by consumers. This rule is designed to maintain 
orderly marketing conditions for these fruits in the interest of 
producers, handlers, and consumers.
    Based on the above, the Administrator of the AMS has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
information, it is found that the finalization, as hereinafter set 
forth, will tend to effectuate the declared policy of the Act.

List of Subjects

7 CFR Part 916

    Marketing agreements, Nectarines, Reporting and recordkeeping 
requirements.

7 CFR Part 917

    Marketing agreements, Peaches, Pears, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR Parts 916 and 917 
are amended as follows:

PART 916--NECTARINES GROWN IN CALIFORNIA

    1. Accordingly, the interim final rules amending 7 CFR Part 916 
which were published at 59 FR 15835 on April 5, 1994, and at 59 FR 
31118 on June 17, 1994, are each adopted as a final rule without 
change.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

    2. Accordingly, the interim final rules amending 7 CFR Part 917 
which were published at 59 FR 15835 on April 5, 1994, and at 59 FR 
31118 on June 17, 1994, are each adopted as a final rule without 
change.

    Dated: September 8, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-22614 Filed 9-12-94; 8:45 am]
BILLING CODE 3410-02-P