[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16286-16298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8140]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV02-916-1 IFR]


Nectarines and Peaches Grown in California; Revision of Handling 
Requirements for Fresh Nectarines and Peaches

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule revises the handling requirements for California 
nectarines and peaches by modifying the grade, size, maturity, 
container, container marking, and pack requirements for fresh shipments 
of these fruits, beginning with 2002 season shipments. This rule also 
continues a modification of the requirements for placement of Federal-
State Inspection Service lot stamps for the 2002 season only, adds a 
new standard container, and establishes weight-count standards for 
Peento (donut) variety peaches. The marketing orders regulate the 
handling of nectarines and peaches grown in California and are 
administered locally by the Nectarine Administrative and Peach 
Commodity Committees (committees). This rule enables handlers to 
continue shipping fresh nectarines and peaches meeting consumer needs 
in the interests of producers, handlers, and consumers of these fruits.

DATES: Effective April 6, 2002. Comments received by June 4, 2002, will 
be considered prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW STOP 
0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail: 
[email protected]. All comments should reference the docket 
number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection at the Office 
of the Docket Clerk during regular business hours, or can be viewed at: 
http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, 
California Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street,

[[Page 16287]]

suite 102B, Fresno, California, 93721; telephone (559) 487-5901, Fax: 
(559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491; Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement Nos. 124 and 85, and Marketing Order Nos. 916 and 917 (7 CFR 
parts 916 and 917) regulating the handling of nectarines and peaches 
grown in California, respectively, 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 (USDA) 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.
    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 USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule in the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    Under the orders, lot stamping, grade, size, maturity, container, 
container marking, and pack requirements are established for fresh 
shipments of California nectarines and peaches. Such requirements are 
in effect on a continuing basis. The Nectarine Administrative Committee 
(NAC) and the Peach Commodity Committee (PCC), which are responsible 
for local administration of the orders, met on November 29, 2001, and 
unanimously recommended that these handling requirements be revised for 
the 2002 season, which begins about the first or second week of April. 
The changes: (1) Continue the lot stamping requirements which were in 
effect for the 2000 and 2001 seasons; (2) authorize shipments of ``CA 
Utility'' quality fruit to continue during the 2002 season; (3) 
establish weight-count standards for the Peento (donut) variety 
peaches; (4) require shippers' names and addresses on all containers; 
(5) add the Euro five-down returnable plastic container as a standard 
container, establish a net weight for the container, and exempt the 
container from the ``well-filled'' requirement; and (6) revise varietal 
maturity, quality, and size requirements to reflect changes in growing 
and marketing practices.
    The committees meet prior to and during each season to review the 
rules and regulations effective on a continuing basis for California 
nectarines and peaches under the orders. Committee meetings are open to 
the public and interested persons are encouraged to express their views 
at these meetings. USDA 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.
    No official crop estimate was available at the time of the 
committees' meetings because the nectarine and peach trees were 
dormant. The committees will recommend a crop estimate at their 
meetings in early spring. However, preliminary estimates indicate that 
the 2002 crop will be similar in size and characteristics to the 2001 
crop, which totaled 21,924,566 containers of nectarines and 24,030,282 
containers of peaches.

Lot Stamping Requirements

    Sections 916.55 and 917.45 of the orders require inspection and 
certification of nectarines and peaches, respectively, handled by 
handlers. Sections 916.115 and 917.150 of the nectarine and peach 
orders' rules and regulations, respectively, require that all exposed 
or outside containers of nectarines and peaches, and at least 75 
percent of the total containers on a pallet, be stamped with the 
Federal-State Inspection Service (inspection service) lot stamp number 
after inspection and before shipment to show that the fruit has been 
inspected. These requirements apply except for containers that are 
loaded directly onto railway cars, exempted, or mailed directly to 
consumers in consumer packages.
    Lot stamp numbers are assigned to each handler by the inspection 
service, and are used to identify the handler and the date on which the 
container was packed. The lot stamp number is also used by the 
inspection service to identify and locate the inspector's corresponding 
working papers or field notes. Working papers are the documents each 
inspector completes while performing an inspection on a lot of 
nectarines or peaches. Information contained in the working papers 
supports the grade levels certified to by the inspector at the time of 
the inspection.
    The lot stamp number has value for the industries, as well. The 
committees utilize the lot stamp number and date codes to trace fruit 
in the container back to the orchard where it was harvested. This 
information is essential in providing quick information for a crisis 
management program instituted by the industries. Without the lot stamp 
information on each container, the ``trace back'' effort, as it is 
called, would be jeopardized.
    Over the last few years, several new containers have been 
introduced for use by nectarine and peach handlers. These containers 
are returnable plastic containers (RPCs). Use of RPCs may represent 
substantial savings to retailers for storage and disposal, as well as 
for handlers who do not have to pay for traditional, single-use, 
containers. Fruit is packed in the containers by the handler, delivered 
to the retailer, emptied, and returned to a central clearinghouse for 
cleaning and redistribution to the handler. However, because these 
containers are designed for reuse, RPCs do not support markings that 
are permanently affixed to the container. All markings must be printed 
on cards that slip into tabs on the front or sides of the containers. 
The cards are easily inserted and removed, and further contribute to 
the efficient reuse of RPCs.
    The cards are a concern for the inspection service and the 
industries because of their unique portability. There is some concern 
that the cards on pallets of inspected containers could easily be moved 
to pallets of uninspected containers, thus permitting a handler to 
avoid inspection on a lot

[[Page 16288]]

or lots of nectarines or peaches. This would also jeopardize the use of 
the lot stamp numbers for the industries' ``trace back'' program.
    To address this concern for the 2000 and 2001 seasons, the 
committees recommended that pallets of inspected fruit in RPCs be 
identified with a USDA-approved pallet tag containing the lot stamp 
number, in addition to the lot stamp number printed on the card on the 
container. In this way, noted the committees, an audit trail would be 
created, confirming that the lot stamp number on each container on the 
pallet corresponds to the lot stamp number on the pallet tag.
    The committees and the inspection service presented their concerns 
to the manufacturers of these types of containers prior to the 2000 
season. At that time, one manufacturer indicated a willingness to 
address the problem by offering an area on the principal display panel 
where the container markings would adhere to the container. Another 
possible improvement discussed was for an adhesive for the current 
style of containers which would securely hold the cards with the lot 
stamp numbers, yet would be easy for the clearinghouse to remove when 
the containers are washed. However, the changes were not in effect for 
the 2000 and 2001 seasons, but were anticipated to be in effect for the 
2002 season.
    In a meeting of the Returnable Plastic Container Task Force on 
November 15, 2001, it was determined that given the different styles 
and configurations of RPCs available, having a standardized display 
panel or a satisfactory adhesive for placement of the cards may not be 
realistic.
    For those reasons, the task force recommended to the committees 
that the regulation in effect for the 2000 and 2001 seasons requiring 
lot stamp numbers on USDA-approved pallet tags, as well as on 
individual containers on a pallet, be again required for the 2002 
season. The committees, in turn, recommended unanimously that such 
requirement be extended for the 2002 season, as well.
    Thus, Secs. 916.115 and 917.150 will be amended to require the lot 
stamp number to be printed on a USDA-approved pallet tag, in addition 
to the requirement that the lot stamp number be applied to cards on all 
exposed or outside containers, and not less than 75 percent of the 
total containers on a pallet, during the 2002 season.

Container and Pack Requirements

    Sections 916.52 and 917.41 of the orders authorize establishment of 
container, pack, and marking requirements for shipments of nectarines 
and peaches, respectively. Under this rule, the well-filled 
requirements, container marking requirements, and list of standard 
containers are revised in accordance with the recommendations of the 
NAC and PCC.

Well-Filled Requirements

    Under paragraphs (a)(1) of Secs. 916.350 and 917.442, all 
containers of nectarines and peaches, respectively, are required to 
conform to the requirements of standard pack, and volume-filled 
containers are further required to be ``well-filled.'' ``Well-filled'' 
means that nectarines and peaches in any volume-filled container must 
be filled to within one inch of the top of the container.
    With the addition of the RPCs, handlers are frequently unable to 
well-fill those containers without either damaging the fruit inside or 
making the container too heavy. For this reason, applying the 
requirements of ``well-filled'' to this container is impractical.
    The Returnable Plastic Container Task Force discussed this issue at 
their meeting on November 15, 2001, and unanimously agreed that the 
requirement for the Euro five down box to meet the well-filled 
requirement was difficult for handlers utilizing that RPC, and such 
requirement should not be applied to that container.
    For those reasons, paragraphs (a)(1) of Secs. 916.350 and 917.442 
will be revised to specify that the Euro five down box is not required 
to meet the well-filled requirement.

Container Marking Requirements

    Sections 916.350 and 917.442 establish certain requirements for 
marking containers of nectarines and peaches, respectively. Currently, 
all containers of nectarines and peaches, other than consumer packages 
mailed directly to consumers, are required to be marked with the name 
and address of the shipper. While some containers (like bulk 
containers, master containers of consumer packages, and consumer 
packages not mailed directly to consumers) are required to have the 
name and address of the shipper printed on the box, that is not true 
for other container types.
    Requiring the handler to print his or her name and address on each 
container will ensure that all boxes are properly identified for 
handler responsibility. Such proper identification will also assist the 
industry's trace back program by providing additional information for 
beginning the trace.
    The Returnable Plastic Container Task Force discussed this issue at 
their meeting on November 15, 2001, and unanimously voted to recommend 
to the NAC and PCC that the requirement for the name and address of the 
shipper be extended to all types of containers. When the committees met 
on November 29, 2001, they unanimously voted to do so.

Addition of a New Standard Container

    In the rules and regulations for nectarines at Sec. 916.350, 
current paragraphs (a)(5) and (a)(6), and for peaches at Sec. 917.442, 
current paragraphs (a)(6) and (a)(7), standard containers, such as the 
Nos. 22D, 22E, 22G, and 32, are required to be marked with the net 
weight. Under paragraph (b) in Secs. 916.350 and 917.442, such standard 
containers are defined. Once the use of a container has become common 
in the industry, such containers are determined to be standard 
containers. Standard containers represent container types that are 
recognized by the industry and adopted by the retail trade. As such, it 
is a practice of the committees to recommend that such containers be 
added to the list of standard containers together with container 
marking requirements.
    At the November 29, 2001, meeting, the NAC and PCC, acting upon a 
recommendation from the Returnable Plastic Container Task Force, 
unanimously recommended that the Euro five down RPC be added to the 
list of standard containers and have a net weight of 31 pounds, which 
is to be printed on the end of the container.
    Nectarines: For the reasons stated above, paragraph (a)(4) of 
Sec. 916.350 is redesignated as paragraph (a)(5), and a new paragraph 
(a)(4) of Sec. 916.350 is added to require all containers of nectarines 
to be marked with the name and address of the shipper. The markings 
shall be placed on one outside end of the container in plain sight and 
in plain letters. Current paragraphs (a)(5) and (a)(6) are redesignated 
as (a)(6) and (a)(7), and a new paragraph (a)(8) is added to establish 
a 31-pound net weight for the Euro five down RPC. The net weight shall 
be marked on one outside end in plain sight and plain letters. Current 
paragraphs (a)(7), (a)(8), and (a)(9) are thus redesignated as 
paragraphs (a)(9), (a)(10) and (a)(11). In a conforming change, the 
reference in current paragraph (a)(4)(ii) to paragraph (a)(4)(i) should 
be changed to read ``(a)(5)(i),'' due to the redesignation of paragraph 
(a)(4) to (a)(5).
    Peaches: For the reasons stated above, paragraph (a)(4) of 
Sec. 917.442 is redesignated as paragraph (a)(5), and a new paragraph 
(a)(4) of Sec. 917.442 is added to require all containers of

[[Page 16289]]

peaches to be marked with the name and address of the shipper. The 
markings shall appear on one outside end of the container in plain 
sight and plain letters. Current paragraphs (a)(5), (a)(6), and (a)(7) 
are redesignated as (a)(6), (a)(7), and (a)(8). A new paragraph (a)(9) 
is added to establish a net weight of 31-pounds for the Euro five down 
RPC. The net weight shall appear on one outside end of the container in 
plain sight and plain letters. Current paragraphs (a)(8), (a)(9), and 
(a)(10) are thus redesignated (a)(10), (a)(11), and (a)(12). In a 
conforming change, the reference in current paragraph (a)(4)(ii) to 
paragraph (a)(4)(i) should be changed to read ``(a)(5)(i),'' due to the 
redesignation of paragraph (a)(4) to (a)(5).
    In addition, paragraph (b) of Secs. 916.350 and 917.442 will be 
revised to add the Euro five down container to the list of standard 
containers. The California Department of Food and Agriculture is 
expected to assign this container a number, like the 22D or 32 
nectarine and peach containers, once the container is added to the 
California Agricultural Code. At that time, the common name currently 
used, Euro five down, will be replaced by the assigned number.

Weight-Count Standards for Peaches

    Under the requirements of Sec. 917.41 of the order, containers of 
peaches are required to meet weight-count standards for a maximum 
number of peaches in a 16-pound sample when such peaches, which may be 
packed in tray-packed containers, are converted to volume-filled 
containers. Under Sec. 917.442 of the order's rules and regulations, 
weight-count standards are established for all varieties of peaches as 
TABLES 1 and 2 of redesignated paragraph (a)(5)(iv).
    According to the PCC, the Peento varieties of donut peaches have 
traditionally been packed in trays because they have been marketed as a 
premium variety, which justified the added packing costs.
    However, as the volume has increased, the value of the variety has 
diminished in the marketplace, and some handlers converted their tray-
packed containers of Peento varieties to volume-filled containers. 
Current weight-count standards established for peaches and nectarines 
were developed for round fruit. Peento type peaches are shaped like 
donuts, and those weight-count standards are inappropriate. In an 
effort to standardize the conversion from tray-packing to volume-
filling for Peento type peaches, the committee staff conducted weigh-
count surveys during the 2001 season to determine the most optimum 
weight-counts for the varieties at varying fruit sizes.
    As a result, the staff prepared a new weight-count table applicable 
to only the Peento varieties. The Grade and Size Subcommittee reviewed 
the weight-counts at their November 15, 2001, meeting and recommended 
to the PCC that they be implemented for the 2002 season.
    The committee staff will continue to conduct further weight-count 
surveys to ensure that the Peento varieties, which are packed in 
volume-filled containers, meet the weight-count standards established 
for tray-packed fruit.
    For those reasons, a new Table 3 will be added to redesignated 
paragraph (a)(5)(iv) of Sec. 917.442, following Tables 1 and 2. In a 
conforming change, the title of the Tables 1 and 2 will be revised by 
adding the words ``(except Peento variety peaches)'' between the words 
``peaches'' and ``packed.''

Grade and Quality Requirements

    Sections 916.52 and 917.41 of the orders authorize the 
establishment of grade and quality requirements for nectarines and 
peaches, respectively. Prior to the 1996 season, Sec. 916.356 required 
nectarines to meet a modified U.S. No. 1 grade. Specifically, 
nectarines were required to meet U.S. No. 1 grade requirements, except 
for a slightly tighter requirement for scarring and a more liberal 
allowance for misshapen fruit. Prior to the 1996 season, Sec. 917.459 
required peaches to meet the requirements of a U.S. No. 1 grade, except 
for a more liberal allowance for open sutures that were not ``serious 
damage.''
    This rule revises Secs. 916.350, 916.356, 917.442, and 917.459 to 
permit shipments of nectarines and peaches meeting ``CA Utility'' 
quality requirements during the 2002 season. (``CA Utility'' fruit is 
lower in quality than that meeting the modified U.S. No. 1 grade 
requirements.) Shipments of nectarines and peaches meeting ``CA 
Utility'' quality requirements have been permitted each season since 
1996.
    Studies conducted by the NAC and PCC in 1996 indicated that some 
consumers, retailers, and foreign importers found the lower-quality 
fruit acceptable in some markets. When shipments of ``CA Utility'' 
nectarines were first permitted in 1996, they represented 1.1 percent 
of all nectarine shipments, or approximately 210,000 containers. 
Shipments of ``CA Utility'' nectarines reached a high of 5 percent 
(1,131,000 containers) during the 2001 season, but usually represent 
approximately 4 percent of total nectarine shipments. Shipments of ``CA 
Utility'' peaches totaled 1.9 percent of all peach shipments, or 
approximately 366,000 containers, during the 1996 season. Shipments of 
``CA Utility'' peaches reached a high of 5 percent of all peach 
shipments (1,031,000 containers) during the 2001 season, but usually 
represent approximately 4 percent of total peach shipments.
    Handlers have also commented that the availability of ``CA 
Utility'' lends flexibility to their packing operations. They have 
noted that they now have the opportunity to remove marginal nectarines 
and peaches from their U.S. No. 1 containers and place this fruit in 
containers of ``CA Utility.'' This flexibility, the handlers note, 
results in better quality U.S. No. 1 packs without sacrificing fruit.
    The Grade and Size Subcommittee met on November 15 and did not make 
a recommendation to the NAC and PCC to continue shipments of ``CA 
Utility'' quality nectarines and peaches. Several subcommittee members 
raised a number of concerns about ``CA Utility'' quality fruit, 
including that the fruit is not reaching its intended low income 
consumer markets and that there are reduced returns to growers on ``CA 
Utility'' quality fruit. The authorized tolerance of 40 percent U.S. 
No. 1 fruit in each container of ``CA Utility'' quality was raised, and 
a suggestion was made that the tolerance should be eliminated so that 
no U.S. No. 1 fruit would be in a box.
    At the full committee meeting, committee staff discussed the 
benefits of having a ``CA Utility'' quality for nectarines and peaches. 
Such benefits included improved quality of the fruit itself, improved 
compliance of marketing order requirements, and increased assessments. 
Further, elimination of the tolerances for U.S. No. 1 fruit in each 
container of ``CA Utility'' quality fruit was discussed. It was noted 
that this would likely result in higher inspection costs to handlers.
    Accordingly, based upon the recommendations, paragraph (d) of 
Secs. 916.350 and 917.442, and paragraph (a)(1) of Secs. 916.356 and 
917.459 are revised to permit shipments of nectarines and peaches 
meeting ``CA Utility'' quality requirements during the 2002 season, on 
the same basis as the 2000 and 2001 seasons.

Maturity Requirements

    In Secs. 916.52 and 917.41, authority is provided to establish 
maturity requirements for nectarines and peaches, respectively. The 
minimum maturity level currently specified for nectarines and peaches 
is ``mature'' as defined in the standards. For most

[[Page 16290]]

varieties, ``well-matured'' determinations for nectarines and peaches 
are made using maturity guides (e.g., color chips). These maturity 
guides are reviewed each year by the Shipping Point Inspection Service 
(SPI) to determine whether they need to be changed, based upon the 
most-recent information available on the individual characteristics of 
each nectarine and peach variety.
    These maturity guides established under the handling regulations of 
the California tree fruit marketing orders have been codified in the 
Code of Federal Regulations as TABLE 1 in Secs. 916.356 and 917.459, 
for nectarines and peaches, respectively.
    The requirements in the 2002 handling regulations are the same as 
those that appeared in the 2001 handling regulations with a few 
exceptions. Those exceptions are explained in this rule.
    Nectarines: Requirements for ``well-matured'' nectarines are 
specified in Sec. 916.356 of the order's rules and regulations. This 
rule revises TABLE 1 of paragraph (a)(1)(iv) of Sec. 916.356 to add 
maturity guides for ten varieties of nectarines. Specifically, SPI 
recommended adding maturity guides for the Fire Sweet, Honey Blaze, 
Ruby Sweet, September Free, and Spring Sweet varieties to be regulated 
at the J maturity guide; and the Flame Glo, Gran Sun, Prima Diamond 
XIII, Red Jewel, and Spring Ray to be regulated at the L maturity 
guide.
    The NAC recommended these maturity guide requirements based on 
SPI's continuing review of individual maturity characteristics and 
identification of the appropriate maturity guide corresponding to the 
``well-matured'' level of maturity for nectarine varieties in 
production.
    Peaches: Requirements for ``well-matured'' peaches are specified in 
Sec. 917.459 of the order's rules and regulations. This rule revises 
TABLE 1 of paragraph (a)(1)(iv) of Sec. 917.459 to add maturity guides 
for eleven varieties of peaches. Specifically, SPI recommended adding 
maturity guides for the Spring Delight variety to be regulated at the G 
maturity guide; the Super Rich variety to be regulated at the H 
maturity guide, for the 60EF32 variety to be regulated at the I 
maturity guide; Brittney Lane, Joanna Sweet, Madonna Sun, Morning Lord, 
Sweet Dream, Sweet Gem, and Sweet Mick varieties to be regulated at the 
J maturity guide; and the Sprague Last Chance variety to be regulated 
at the L maturity guide.
    In addition, SPI requested that the Sugar Lady variety of peaches 
be removed from the maturity guide listing in TABLE 1 of paragraph 
(a)(1)(iv) of Sec. 917.459. White-fleshed peaches and nectarines would 
be more accurately assessed by other criteria, including cutting the 
fruit. The committees unanimously recommended such a change at their 
meetings.
    For those reasons TABLE 1 of paragraph (a)(1)(iv) of Sec. 917.459 
will be revised to remove the Sugar Lady variety and its corresponding 
maturity guide assignment.
    The Joanna Sweet peach variety was also recommended to have a one 
hundred percent surface color requirement for meeting the assigned 
color chip rather than the current ninety percent. This recommendation 
is based upon SPI's experience with the maturity characteristics of 
this variety.
    Thus, paragraph (a)(1)(iv) of Sec. 917.459 will be revised to 
reflect this requirement.
    The PCC recommended these maturity guide requirements based on 
SPI's continuing review of individual maturity characteristics and 
identification of the appropriate maturity guide corresponding to the 
``well-matured'' level of maturity for peach varieties in production.
    Size Requirements: Both orders provide (in Secs. 916.52 and 917.41) 
authority to establish size requirements. Size regulations encourage 
producers to leave fruit on the tree longer, which improves both size 
and maturity of the fruit. Acceptable fruit size provides greater 
consumer satisfaction and promotes repeat purchases; and, therefore, 
increases returns to producers and handlers. In addition, increased 
fruit size results in increased numbers of packed containers of 
nectarines and peaches per acre, also a benefit to producers and 
handlers.
    Varieties recommended for specific size regulations have been 
reviewed and such recommendations are based on the specific 
characteristics of each variety. The NAC and PCC conduct studies each 
season on the range of sizes attained by the regulated varieties and 
those varieties with the potential to become regulated, and determine 
whether revisions and additions to the size requirements are 
appropriate.
    Nectarines: Section 916.356 of the order's rules and regulations 
specifies minimum size requirements for fresh nectarines in paragraphs 
(a)(2) through (a)(9). This rule revises Sec. 916.356 to establish 
variety-specific minimum size requirements for 13 varieties of 
nectarines, which were produced in commercially-significant quantities 
of more than 10,000 containers for the first time during the 2001 
season. This rule also removes the variety-specific minimum size 
requirements for 3 varieties of nectarines whose shipments fell below 
5,000 containers during the 2001 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Arctic Ice variety of 
nectarines, recommended for regulation at a minimum size 80. Studies of 
the size ranges attained by the Arctic Ice variety revealed that 100 
percent of the containers met the minimum size of 80 during the 2001 
season. Sizes ranged from size 30 to size 80, with 3 percent of the 
packages in the 30 sizes, 47 percent of the packages in the 40 sizes, 
41 percent of the packages in the 50 sizes, 5.4 percent in the 60 
sizes, 3.5 percent in the 70 sizes, and .2 percent at size 80. Due to 
rounding, these numbers add up to slightly more than 100 percent.
    A review of other varieties with the same harvesting period 
indicated that the Arctic Ice variety was also comparable to those 
varieties in its size ranges for that time period. Discussions with 
handlers known to handle the variety confirm this information regarding 
minimum size and harvesting period, as well. Thus, the recommendation 
to place the Arctic Ice variety in the variety-specific minimum size 
regulation at a minimum size 80 is appropriate.
    Historical data such as this provides the NAC with the information 
necessary to recommend the appropriate sizes at which to regulate 
various nectarine varieties. In addition, producers and handlers of the 
varieties affected are personally invited to comment when such size 
recommendations are deliberated. Producer and handler comments are also 
considered at both NAC and subcommittee meetings when the staff 
receives such comments, either in writing or verbally.
    For reasons similar to those discussed in the preceding paragraph, 
the introductory text of paragraph (a)(4) of Sec. 916.356 is revised to 
include the Prima Diamond VI and the Prince Jim 1 nectarine varieties; 
and the introductory text of paragraph (a)(6) of Sec. 916.356 is 
revised to include the Arctic Ice, Bright Sweet, Grand Sweet, June 
Lion, Kay Pearl, Prima Diamond XXVIII, Regal Red, September Bright 
(26P-490), Summer Jewel, Sun Valley Sweet, and Sweet White nectarine 
varieties.
    This rule also revises the introductory text of paragraphs (a)(4) 
and (a)(6) of Sec. 916.356 to remove 3 varieties from the variety-
specific minimum size requirements specified in these paragraphs 
because less than 5,000 containers of each of these varieties

[[Page 16291]]

were produced during the 2001 season. Specifically, the introductory 
text of paragraph (a)(4) of Sec. 916.356 is revised to remove the 
Arctic Glo nectarine variety; and the introductory text of paragraph 
(a)(6) of Sec. 916.356 is revised to remove the Cole Red and Mid Glo 
nectarine varieties.
    Nectarine varieties removed from the nectarine variety-specific 
minimum size requirements become subject to the non-listed variety size 
requirements specified in paragraphs (a)(7), (a)(8), and (a)(9) of 
Sec. 916.356.
    Peaches: Section 917.459 of the order's rules and regulations 
specifies minimum size requirements for fresh peaches in paragraphs 
(a)(2) through (a)(6), and paragraphs (b) and (c). This rule revises 
Sec. 917.459 to establish variety-specific minimum size requirements 
for 19 peach varieties that were produced in commercially-significant 
quantities of more than 10,000 containers for the first time during the 
2001 season. This rule also removes the variety-specific minimum size 
requirements for 1 variety of peaches whose shipments fell below 5,000 
containers during the 2001 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Bev's Red variety of 
peaches, which was recommended for regulation at a minimum size 80. 
Studies of the size ranges attained by the Bev's Red variety revealed 
that 100 percent of the containers met the minimum size of 80 during 
the 2001 season. The sizes ranged from the 30 sizes to the 80 sizes, 
with 3.4 percent of the containers meeting the 30 sizes, 15.9 meeting 
the 40 sizes, 53.8 percent meeting the 50 sizes, 20.4 percent meeting 
the 60 sizes, 5.5 percent meeting the 70 sizes, and 1.1 percent meeting 
the size 80.
    A review of other varieties with the same harvesting period 
indicated that the Bev's Red variety was also comparable to those 
varieties in its size ranges for that time period. Discussions with 
handlers known to handle the variety confirm this information regarding 
minimum size and harvesting period, as well. Thus, the recommendation 
to place the Bev's Red variety in the variety-specific minimum size 
regulation at a minimum size 80 is appropriate.
    Historical data such as this provides the PCC with the information 
necessary to recommend the appropriate sizes at which to regulate 
various peach varieties. In addition, producers and handlers of the 
varieties affected are personally invited to comment when such size 
recommendations are deliberated. Producer and handler comments are also 
considered at both PCC and subcommittee meetings when the staff 
receives such comments, either in writing or verbally.
    For reasons similar to those discussed in the preceding paragraph, 
the introductory text of paragraph (a) (2) of Sec. 917.459 is revised 
to include the 91002 peach variety; and the introductory text of 
paragraph (a)(3) of Sec. 917.459 is revised to include the Snow Kist 
peach variety; the introductory text of paragraph (a)(5) of 
Sec. 917.459 is revised to include the Bev's Red, May Sweet, and Sunlit 
Snow (172LE81) peach varieties; and the introductory text of paragraph 
(a)(6) of Sec. 917.459 is revised to include the Flaming Dragon, Jillie 
White, Joanna Sweet, July Flame, Prima Peach XXV, Prima Peach XXVII, 
Princess Gayle, Red Sun, September Flame, Snow Fall, Snow Gem, Spring 
Gem, Sweet Gem, and 24-SB peach varieties.
    This rule also revises the introductory text of paragraph (a)(6) of 
Sec. 917.459 to remove the Carnival peach variety from the variety-
specific minimum size requirements specified in the section because 
less than 5,000 containers of each of these varieties was produced 
during the 2001 season.
    Peach varieties removed from the peach variety-specific minimum 
size requirements become subject to the non-listed variety size 
requirements specified in paragraphs (b) and (c) Sec. 917.459.
    This rule also corrects the spelling of the peach variety 
``Brittney Lane,'' incorrectly spelled as ``Brittany Lane'' in 
paragraph (a)(5) of Sec. 917.459.
    The NAC and PCC recommended these changes in the minimum size 
requirements based on a continuing review of the sizing and maturity 
relationships for these nectarine and peach varieties, and the consumer 
acceptance levels for various fruit sizes. This rule is designed to 
establish minimum size requirements for fresh nectarines and peaches 
consistent with expected crop and market conditions.
    This rule reflects the committees' and USDA's appraisal of the need 
to revise the handling requirements for California nectarines and 
peaches, as specified. USDA believes that this rule will have a 
beneficial impact on producers, handlers, and consumers of fresh 
California nectarines and peaches.
    This rule establishes 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 meet acceptable handling requirements established 
under each of these orders. This rule will also help the California 
nectarine and peach industries provide fruit desired by consumers. This 
rule is designed to establish and maintain orderly marketing conditions 
for these fruit in the interests of producers, handlers, and consumers.

Initial Regulatory Flexibility Analysis

    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. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    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 approximately 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 service firms, which includes handlers, 
are defined by the Small Business Administration [13 CFR 121.201] as 
those whose annual receipts are less than $5,000,000. Small 
agricultural producers are defined by the Small Business Administration 
as those having annual receipts of less than $750,000. A majority of 
these handlers and producers may be classified as small entities.
    The committees' staff has estimated that there are less than 20 
handlers in the industry who could be defined as other than small 
entities. In the 2001 season, the average handler price received was 
$9.00 per container or container equivalent of nectarines or peaches. A 
handler would have to ship at least 556,000 containers to have annual 
receipts of $5,000,000. Given data on shipments maintained by the 
committees' staff and the average handler price received during the 
2001 season, the committees' staff estimates that small handlers 
represent approximately 94 percent of all the handlers within the 
industry.
    The committees' staff has also estimated that less than 20 percent 
of the producers in the industry could be defined as other than small 
entities. In the 2001 season, the average producer

[[Page 16292]]

price received was $5.50 per container or container equivalent for 
nectarines, and $5.25 per container or container equivalent for 
peaches. A producer would have to produce at least 136,364 containers 
of nectarines and 142,858 containers of peaches to have annual receipts 
of $750,000. Given data maintained by the committees' staff and the 
average producer price received during the 2001 season, the committees' 
staff estimates that small producers represent more than 80 percent of 
the producers within the industry.
    Under Secs. 916.52 and 917.41 of the orders, grade, size, maturity, 
container, container marking, and pack requirements are established for 
fresh shipments of California nectarines and peaches, respectively. 
Such requirements are in effect on a continuing basis. The NAC and PCC 
met on November 29, 2001, and unanimously recommended that these 
handling requirements be revised for the 2002 season. These 
recommendations had been presented to the committees by various 
subcommittees, each charged with review and discussion of the changes. 
The changes: (1) Continue the lot stamping requirements which were in 
effect for the 2000 and 2001 seasons; (2) authorize shipments of ``CA 
Utility'' quality fruit to continue during the 2002 season; (3) 
establish weight-count standards for Peento (donut) variety peaches; 
(4) require shippers' names and addresses on all containers; (5) add 
the Euro five-down returnable plastic container as a standard 
container, establish a net weight for that container, and exempt that 
container from the ``well-filled'' requirement; and (6) revise varietal 
maturity, quality, and size requirements to reflect changes in growing 
and marketing practices.
    This rule authorizes continuation of the lot stamping requirements 
for returnable plastic containers under the marketing orders' rules and 
regulations that were in effect for such containers during the 2001 
season for nectarine and peach shipments. The modified requirements of 
Secs. 916.115 and 917.150 mandated that the lot stamp numbers be 
printed on a USDA-approved pallet tag, in addition to the requirement 
that the lot stamp number be applied to cards on all exposed or outside 
containers, and not less than 75 percent of the total containers on a 
pallet. Continuation of such requirements for the 2002 season would 
help the inspection service safeguard the identity of inspected and 
certified containers of nectarines and peaches, and would help the 
industry by keeping in place the information necessary to facilitate 
their ``trace-back'' program.
    The Returnable Plastic Container Task Force and Grade and Size 
Subcommittee met on November 15, 2001, and considered possible 
alternatives to this action. Other alternatives were rejected because 
it was determined that given the different styles and configurations of 
RPCs available, having a standardized display panel or a satisfactory 
adhesive for placement of the cards may not be realistic, at least for 
the time being.
    For those reasons, the task force recommended to the committees, 
and the committees voted unanimously, to extend the requirement for the 
lot stamp number to be printed on the cards on each container and for 
each pallet to be marked with a USDA-approved pallet tag, also 
containing the lot stamp number. Such safeguards were put in place to 
ensure that all the containers on each pallet had been inspected and 
certified in the event a card on an individual container or containers 
was removed, misplaced, or lost.
    The Returnable Plastic Container Task Force met on November 15 to 
discuss issues relating to RPCs. At that time, they discussed volume 
filling of RPCs and its ramifications, specifically of the Euro five 
down container. They noted that RPCs are favored by many retailers and 
demanded by others, and that this particular container has become a 
standard container within the industry. In an effort to meet the 
demands and preferences for their customers, the Euro five down 
container has been used in increasing numbers in recent years. However, 
they noted, to maintain efficient packing operations, some container 
requirements needed to be reviewed, especially the requirement that all 
volume-filled RPC containers must be well filled. While the well-filled 
requirement may work for traditional boxes, the requirement may 
increase the amount of damage to fruit in RPCs or make the containers 
unwieldy and heavy. The task force considered leaving the requirement 
in place. However, given the potential for increased utilization of 
RPCs, and this container in particular, and the need to provide a 
quality product to customers, the alternative was rejected.
    The Grade and Size Subcommittee met on November 15, 2001, to 
discuss the container marking requirement, among other things. At that 
time, it was noted by staff that not all containers are required to 
have the shipper's name and address printed on them. The subcommittee 
voted unanimously to recommend to the NAC and PCC that marking 
requirements be changed to require the shipper's name and address be 
placed on all containers.
    Sections 916.350 and 917.442 establish certain requirements for 
marking containers of nectarines and peaches, respectively. Currently, 
all containers of nectarines and peaches, other than consumer packages 
mailed directly to consumers, are required to be marked with the name 
and address of the shipper. While some containers (like bulk 
containers, master containers of consumer packages, and consumer 
packages not mailed directly to consumers) are required to have the 
name and address of the shipper printed on the box, that is not true 
for other container types.
    Requiring the handler to print his or her name and address on each 
container will ensure that all boxes are properly identified for 
handler responsibility. Such proper identification will also assist the 
industry's trace back program by providing additional information for 
beginning the trace.
    In addition, the Returnable Plastic Container Task Force also 
deliberated the issue of making the Euro five down container a standard 
container and recommending a net weight for that container. It has been 
the practice of the committees to study the trends in containers used 
by the industry. Traditionally, corrugated containers have been the 
shippers container of choice. However, in recent years, the growth of 
RPCs has increased dramatically. In keeping with that practice, the 
Task Force determined that the Euro five down container has become an 
industry standard and may continue to be used by greater numbers of 
shippers. As such, any other alternative would not be viable.
    Coupled with the recommendation to add the Euro five down container 
to the list of standard containers is the need to recommend an 
applicable net weight for the container. Assigning an appropriate net 
weight would foreclose other alternatives.
    In 1996, Secs. 916.350 and 917.442 were revised to permit shipments 
of ``CA Utility'' quality nectarines and peaches as an experiment 
during the 1996 season only. Such shipments have subsequently been 
permitted each season. Since 1996, shipments of ``CA Utility'' have 
ranged from 1 to 5 percent of total nectarine and peach shipments. This 
rule authorizes continued shipments of ``CA Utility'' quality 
nectarines and peaches during the 2002 season.
    The Grade and Size Subcommittee met on November 15, 2001, and 
considered one alternative to this action. They considered not 
authorizing continued shipments of ``CA Utility'' quality nectarines 
and peaches. The

[[Page 16293]]

subcommittee, ultimately, did not make a recommendation to the NAC and 
PCC to continue shipments of ``CA Utility'' quality nectarines and 
peaches.
    However, the NAC and PCC unanimously recommended implementation of 
the authority for continued shipments of ``CA Utility'' quality 
nectarines and peaches at their November 29, 2001, meeting. The 
committees voted to continue all requirements that are currently in 
effect, and then individually discussed any proposed changes, such as 
grade and size changes. There was discussion regarding shipments of 
``CA Utility'' quality nectarines and peaches, based upon information 
from the Grade and Size Subcommittee, but the committees voted to 
continue such shipments along with all other requirements currently in 
effect.
    Sections 916.350 and 917.442 establish container, pack, and marking 
requirements for shipments of nectarines and peaches, respectively. 
This rule makes changes to the pack and container marking requirements 
of the orders' rules and regulations to exempt RPCs from the well-
filled requirement and add the requirement that all types of containers 
be marked with the shipper's name and address.
    Section 917.442 also establishes minimum weight-count standards for 
containers of peaches. Under these requirements, containers of peaches 
are required to meet weight-count standards for a maximum number of 
peaches in a 16-pound sample when such peaches are packed in a tray-
packed container. Those same maximum number of peaches are also 
applicable to volume-filled containers, based upon the tray-packed 
standard. In other words, the weight-count standard is developed so 
handlers may convert tray-packed peaches to volume-filled containers 
and be assured that the fruit in the volume-filled container will meet 
the maximum number of peaches in the 16-pound sample.
    When the Grade and Size Subcommittee met on November 15, 2001, they 
discussed the recent changes in the packing and marketing of Peento 
(donut) variety peaches. When these varieties were first introduced and 
marketed, they were generally tray-packed because they were a novel and 
premium product. As production has increased, the value of the 
varieties has diminished in the marketplace, and some handlers have 
converted their tray-packed containers of Peento varieties to volume-
filled containers.
    The staff conducted weight-count studies during the 2001 season so 
that weight-count standards could be developed, thus ensuring that all 
handlers are packing a standard maximum number of peaches in a 16-pound 
sample. Since weight-count standards provide a basis for volume filling 
of containers of other varieties of peaches, the subcommittee 
recommended that the NAC and PCC establish such standards for these 
unique varieties.
    Sections 916.356 and 917.459 establish minimum maturity levels. 
This rule makes annual adjustments to the maturity requirements for 
several varieties of nectarines and peaches. Maturity requirements are 
based on maturity measurements generally using maturity guides (e.g. 
color chips), as recommended by Shipping Point Inspection. Such 
maturity guides are reviewed annually by SPI to determine the 
appropriate guide for each nectarine and peach variety. These annual 
adjustments reflect changes in the maturity characteristics of 
nectarines and peaches as experienced over the previous season's 
inspections. Adjustments in the guides ensure that fruit has met an 
acceptable level of maturity, ensuring consumer satisfaction while 
benefiting nectarine and peach producers and handlers.
    Currently, in Sec. 916.356 of the nectarine order's rule and 
regulations, and in Sec. 917.459 of the peach order's rule and 
regulations, minimum sizes for various varieties of nectarines and 
peaches, respectively, are established. This rule makes adjustments to 
the minimum sizes authorized for various varieties of nectarines and 
peaches for the 2002 season. Minimum size regulations are put in place 
to encourage producers to leave fruit on the trees for a longer period 
of time. This increased growing time not only improves maturity, but 
also increases fruit size. Increased fruit size increases the number of 
packed containers per acre; and coupled with heightened maturity 
levels, also provides greater consumer satisfaction, fostering repeat 
purchases. Such improved consumer satisfaction and repeat purchases 
benefit both producers and handlers alike. Annual adjustments to 
minimum sizes of nectarines and peaches, such as these, are recommended 
by the NAC and PCC based upon historical data, producer and handler 
information regarding sizes attained by different varieties, and trends 
in consumer purchases.
    An alternative to such action would include not establishing 
minimum size regulations for these new varieties. Such an action, 
however, would be a significant departure from the committees' 
practices and represent a significant change in the regulations as they 
currently exist, would ultimately increase the amount of less 
acceptable fruit being marketed to consumers, and, thus, would be 
contrary to the long-term interests of producers, handlers, and 
consumers. For these reasons, this alternative was not recommended.
    The committees make recommendations regarding all the revisions in 
handling and lot stamping requirements after considering all available 
information, including comments of persons at several subcommittee 
meetings and comments received by committee staff. Such subcommittees 
include the Grade and Size Subcommittee, the Inspection and Compliance 
Subcommittee, the Returnable Plastic Container Task Force, and the 
Management Services Committee.
    At the meetings, the impact of and alternatives to these 
recommendations are deliberated. These subcommittees and the task 
force, like the committees themselves, frequently consist of individual 
producers (and handlers, where authorized) with many years' experience 
in the industry who are familiar with industry practices. Like all 
committee meetings, subcommittee meetings are open to the public and 
comments are widely solicited. In the case of the Returnable Plastic 
Container Task Force, RPC manufacturers are also invited, as well as 
those handlers who currently use such boxes. Information from these 
sources assists the committees, subcommittees, and the task force in 
thoroughly examining and deliberating the issues that affect the entire 
industry in a public setting.
    This rule does not impose any additional reporting and 
recordkeeping requirements on either small or large handlers. As with 
all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule. However, as previously stated, 
nectarines and peaches under the orders have to meet certain 
requirements set forth in the standards issued under the Agricultural 
Marketing Act of 1946 (7 CFR 1621 et seq.). Standards issued under the 
Agricultural Marketing Act of 1946 are otherwise voluntary.
    In addition, the committees' meetings are widely publicized through 
the nectarine and peach industries and all interested parties are 
encouraged to attend and participate in committee deliberations on all 
issues. These meetings are held annually during the

[[Page 16294]]

last week of November or first week of December. Like all committee 
meetings, the November 29, 2001, meetings were public meetings, and all 
entities, large and small, were encouraged to express views on these 
issues. In addition, various subcommittee meetings were held on 
November 15, 2001, and these regulations were reviewed and discussed. 
Finally, interested persons are invited to submit information on the 
regulatory and informational impacts of this action on small 
businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following website: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously-mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
information, it is found that this interim final rule, as hereinafter 
set forth, will tend to effectuate the declared policy of the Act.
    This rule invites comments on changes to the handling requirements 
currently prescribed under the marketing orders for California fresh 
nectarines and peaches. Any comments received will be considered prior 
to finalization of this rule.
    Pursuant to 5 U.S.C. 553. it is also found and determined, upon 
good cause, that it is impracticable, unnecessary, and contrary to the 
public interest to give preliminary notice prior to putting this rule 
into effect, and that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register because: (1) California nectarine and peach producers 
and handlers should be apprised of this rule as soon as possible, since 
early shipments of these fruits are expected to be about the first or 
second week of April; (2) this rule relaxes grade requirements for 
nectarines and peaches; (3) the committees unanimously recommended 
these changes at public meetings and interested persons had an 
opportunity to provide input; and (4) the rule provides a 60-day 
comment period, and any written comments timely received will be 
considered prior to any finalization of this interim final rule.

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:
    1. The authority citation for 7 CFR parts 916 and 917 continues to 
read as follows:

    Authority: 7 U.S.C. 601-674.

PART 916--NECTARINES GROWN IN CALIFORNIA

    2. Section 916.115 is revised to read as follows:


Sec. 916.115  Lot stamping.

    Except when loaded directly into railway cars, exempted under 
Sec. 916.110, or for nectarines mailed directly to consumers in 
consumer packages, all exposed or outside containers of nectarines, and 
not less than 75 percent of the total containers on a pallet, shall be 
plainly stamped, prior to shipment, with a Federal-State Inspection 
Service lot stamp number, assigned by such Service, showing that such 
fruit has been USDA inspected in accordance with Sec. 916.55: Provided, 
That for the period April 6, 2002, to October 31, 2002, pallets of 
returnable plastic containers shall have the lot stamp numbers affixed 
to each pallet with a USDA-approved pallet tag, in addition to the lot 
stamp numbers and other required information on cards on the individual 
containers.

    3. Section 916.350 is amended by:
    A. Revising paragraph (a)(1);
    B. Redesignating current paragraphs (a)(7), (a)(8), and (a)(9) as 
(a)(9), (a)(10), and (a)(11); and adding a new paragraph (a)(8);
    C. Redesignating current paragraphs (a)(4), (a)(5), and (a)(6) as 
(a)(5), (a)(6), and (a)(7); and adding a new paragraph (a)(4);
    D. Revising redesignated paragraph (a)(5)(ii);
    E. Revising paragraph (b); and
    F. Revising paragraph (d) to read as follows:


Sec. 916.350  California nectarine container and pack regulation.

    (a) * * *
    (1) Such nectarines, when packed in any closed package or 
container, except master containers of consumer packages, individual 
consumer packages, and Euro five down reusable plastic containers, 
shall conform to the requirements of standard pack: Provided, That 
nectarines in any such volume-filled container need only be filled to 
within one-inch of the top of the container.
* * * * *
    (4) Each package or container of nectarines shall bear, on one 
outside end in plain sight and in plain letters, the name and address 
of the shipper.
* * * * *
    (5) * * *
    (ii) The size of nectarines in molded forms (tray-packs) in 
experimental containers, and in the No. 22G standard lug boxes, shall 
be indicated according to the number of such nectarines when packed in 
molded forms in the No. 22D standard lug box or the No. 32 standard 
box, in accordance with the requirements of standard pack, such as ``80 
size,'' ``88 size,'' etc., along with count requirements in paragraph 
(a)(5)(i) of this section.
* * * * *
    (8) Each Euro five down returnable plastic container of loose-
filled nectarines shall bear on one outside end in plain sight and in 
plain letters the words ``31 pounds net weight.''
* * * * *
    (b) As used in this section, ``standard pack'' and ``fairly uniform 
in size'' shall have the same meaning as set forth in the U.S. 
Standards for Grades of Nectarines (Secs. 51.3145 to 51.3160) and all 
other terms shall have the same meaning as when used in the amended 
marketing agreement and order. A No. 12B standard fruit box measures 
2\3/8\ to 7\1/8\ x 11\1/2\ x 16\1/8\ inches, No. 22D standard lug box 
measures 2\7/8\ to 7\1/8\ x 13\1/2\ x 16\1/8\ inches, No. 22E standard 
lug box measures 8\3/4\ x 13\1/2\ x 16\1/8\ inches, No. 22G standard 
lug box measures 7\3/8\ to 7\1/2\ x 13\1/4\ x 15\7/8\, No. 32 standard 
box measures 5\3/4\ to 7\1/4\ x 12 x 19\3/4\ inches, and Euro five down 
standard box measures 3\1/2\ to 10\3/4\ x 16 x 24 inches. All 
dimensions are given in depth (inside dimensions) by width by length 
(outside dimensions). ``Individual consumer packages'' means packages 
holding 15 pounds or less net weight of nectarines. ``Tree ripe'' means 
``tree ripened'' and fruit shipped and marked as ``tree ripe,'' ``tree 
ripened,'' or any similar terms using the words ``tree'' and ``ripe'' 
must meet the minimum California Well Matured standards.
* * * * *
    (d) During the period April 6, 2002, through October 31, 2002, each 
container or package when packed with nectarines meeting the ``CA 
Utility'' quality requirements, shall bear the words ``CA Utility,'' 
along with all other required container markings, in letters at least 
\3/8\ inch in height on the visible display panel. Consumer bags or

[[Page 16295]]

packages must also be clearly marked on the consumer bags or packages 
as ``CA Utility,'' along with all other required markings, in letters 
at least \3/8\ inch in height.
* * * * *

    4. Section 916.356 is amended by:
    A. Revising paragraph (a)(1)introductory text;
    B. Revising TABLE 1 of paragraph (a)(1)(iv); and
    C. Revising the introductory text of paragraphs (a)(4) and (a)(6) 
to read as follows:


Sec. 916.356  California nectarine grade and size regulation.

    (a) * * *
    (1) Any lot or package or container of any variety of nectarines 
unless such nectarines meet the requirements of U.S. No. 1 grade: 
Provided, That nectarines 2 inches in diameter or smaller, shall not 
have fairly light-colored, fairly smooth scars which exceed an 
aggregate area of a circle \3/8\ inch in diameter, and nectarines 
larger than 2 inches in diameter shall not have fairly light-colored, 
fairly smooth scars which exceed an aggregate area of a circle \1/2\ 
inch in diameter: Provided further, That an additional tolerance of 25 
percent shall be permitted for fruit that is not well formed but not 
badly misshapen: Provided further, That all varieties of nectarines 
which fail to meet the U.S. No. 1 grade only on account of lack of 
blush or red color due to varietal characteristics shall be considered 
as meeting the requirements of this subpart: Provided further, That 
during the period April 6, 2002, through October 31, 2002, any handler 
may handle nectarines if such nectarines meet ``CA Utility'' quality 
requirements. The term ``CA Utility'' means that not more than 40 
percent of the nectarines in any container meet or exceed the 
requirements of the U.S. No. 1 grade, except that when more than 30 
percent of the nectarines in any container meet or exceed the 
requirements of the U.S. No. 1 grade, the additional 10 percent shall 
have non-scoreable blemishes as determined when applying the U.S. 
Standards for Grades of Nectarines; and that such nectarines are mature 
and are:
* * * * *
    (iv) * * *

                                 Table 1
------------------------------------------------------------------------
             Column A variety                  Column B maturity guide
------------------------------------------------------------------------
Alshir Red................................  J
April Glo.................................  H
August Glo................................  L
August Lion...............................  J
August Red................................  J
Aurelio Grand.............................  F
Autumn Delight............................  L
Autumn Grand..............................  L
Big Jim...................................  J
Diamond Bright............................  J
Diamond Jewel.............................  L
Diamond Ray...............................  L
Earliglo..................................  I
Early Diamond.............................  J
Early May.................................  F
Early May Grand...........................  H
Early Red Jim.............................  J
Early Sungrand............................  H
Fairlane..................................  L
Fantasia..................................  J
Firebrite.................................  H
Fire Sweet................................  J
Flame Glo.................................  L
Flamekist.................................  L
Flaming Red...............................  K
Flavortop.................................  J
Grand Diamond.............................  L
Gran Sun..................................  L
Honey Blaze...............................  J
Honey Kist................................  I
Independence..............................  H
July Red..................................  L
June Brite................................  I
Juneglo...................................  H
Kay Diamond...............................  L
King Jim..................................  L
Kism Grand................................  J
Late Le Grand.............................  L
Late Red Jim..............................  J
May Diamond...............................  I
May Fire..................................  H
Mayglo....................................  H
May Grand.................................  H
May Jim...................................  I
May Kist..................................  H
May Lion..................................  J
Mid Glo...................................  L
Moon Grand................................  L
Niagra Grand..............................  H
P-R Red...................................  L
Prima Diamond XIII........................  L
Red Delight...............................  I
Red Diamond...............................  L
Red Fred..................................  J
Red Free..................................  L
Red Glen..................................  J
Red Glo...................................  I
Red Grand.................................  H
Red Jewel.................................  L
Red Jim...................................  L
Red May...................................  J
Rio Red...................................  L
Rose Diamond..............................  J
Royal Delight.............................  F
Royal Giant...............................  I
Royal Glo.................................  I
Ruby Diamond..............................  L
Ruby Grand................................  J
Ruby Sun..................................  J
Ruby Sweet................................  J
Scarlet Red...............................  K
September Free............................  J
September Grand...........................  L
September Red.............................  L
Sheri Red.................................  J
Sparkling June............................  L
Sparkling May.............................  J
Sparkling Red.............................  L
Spring Bright.............................  L
Spring Diamond............................  L
Spring Ray................................  L
Spring Sweet..............................  J
Spring Red................................  H
Star Brite................................  J
Summer Beaut..............................  H
Summer Blush..............................  J
Summer Bright.............................  J
Summer Diamond............................  L
Summer Fire...............................  L
Summer Grand..............................  L
Summer Lion...............................  L
Summer Red................................  L
Sunburst..................................  J
Sun Diamond...............................  I
Sunecteight (Super Star)..................  G
Sun Grand.................................  G
Tom Grand.................................  L
Zee Glo...................................  J
Zee Grand.................................  I
------------------------------------------------------------------------


    Note: Consult with the Federal or Federal-State Inspection 
Service Supervisor for the maturity guides applicable to the 
varieties not listed above.

* * * * *
    (4) Any package or container of Arctic Rose, Arctic Star, Diamond 
Bright, Juneglo, June Pearl, Kay Glo, Kay Sweet, May Diamond, May 
Grand, Prima Diamond IV, Prima Diamond VI, Prima Diamond XIII, Prince 
Jim, Prince Jim 1, Red Delight, Red Glo, Rose Diamond, Royal Glo, 
Scarlet Jewels, Sparkling May, Star Brite, White Sun, or Zee Grand 
variety nectarines unless:
* * * * *
    (6) Any package or container of Alta Red, Arctic Blaze, Arctic 
Gold, Arctic Ice, Arctic Jay, Arctic Mist, Arctic Pride, Arctic Queen, 
Arctic Snow (White Jewel), Arctic Sweet, August Glo, August Lion, 
August Pearl, August Red, August Snow, Big Jim, Bright Pearl, Bright 
Sweet, Diamond Ray, Early Red Jim, Firebrite, Fire Pearl, Fire Sweet, 
Flame Glo, Flaming Red, Grand Diamond, Grand Pearl, Grand Sweet, Honey 
Blaze, Honey Kist, July Pearl, July Red, June Lion, Kay Diamond, Kay 
Pearl, King Jim, Late Red Jim, P-R Red, Prima Diamond IX, Prima Diamond 
XVI, Prima Diamond XVIII, Prima Diamond XIX, Prima Diamond XXIV, Prima 
Diamond XXVIII, Red Diamond, Red Glen, Red Jim, Regal Pearl, Regal Red, 
Royal Giant, Ruby Diamond, Ruby Pearl, Ruby Sweet, Scarlet Red, 
September Bright (26P-490), September Free, September Red, Sparkling 
June, Sparkling Red, Spring Bright, Spring Diamond, Spring Red, Spring 
Sweet, Summer Beaut, Summer Blush, Summer Bright, Summer Diamond, 
Summer Fire, Summer Grand, Summer Jewel, Summer Lion, Summer Red, 
Sunburst, Sun Diamond, Sunecteight (Super Star),

[[Page 16296]]

Sunny Red, Sun Valley Sweet, Sweet White, Terra White, or Zee Glo 
variety nectarines unless:
* * * * *

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

    5. Section 917.150 is revised to read as follows:


Sec. 917.150  Lot stamping.

    Except when loaded directly into railway cars, exempted under 
Sec. 917.143, or for peaches mailed directly to consumers in consumer 
packages, all exposed or outside containers of peaches, and not less 
than 75 percent of the total containers on a pallet, shall be plainly 
stamped, prior to shipment, with a Federal-State Inspection Service lot 
stamp number, assigned by such Service, showing that such fruit has 
been USDA inspected in accordance with Sec. 917.45: Provided, That for 
the period April 6, 2002, through November 23, 2002, pallets of 
returnable plastic containers shall have the lot stamp numbers affixed 
to each pallet with a USDA-approved pallet tag, in addition to the lot 
stamp numbers and other required information on cards on the individual 
containers.
* * * * *

    6. Section 917.442 is amended by:
    A. Revising paragraph (a)(1);
    B. Redesignating current paragraphs (a)(8), (a)(9), and (a)(10) as 
(a)(10), (a)(11), and (a)(12); and adding a new paragraph (a)(9);
    C. Redesignating current paragraphs (a)(4), (a)(5), (a)(6), and 
(a)(7) as (a)(5), (a)(6), (a)(7), and (a)(8); and adding a new 
paragraph (a)(4);
    D. Revising redesignated paragraph (a)(5)(ii);
    E. Revising the title of Tables 1 and 2 in redesignated paragraph 
(a)(5)(iv);
    F. Adding new Table 3 after Tables 1 and 2 in redesignated 
paragraph (a)(5)(iv);
    G. Revising paragraph (b); and
    H. Revising paragraph (d) to read as follows:


Sec. 917.442  California peach container and pack regulation.

    (a) * * *
    (1) Such peaches, when packed in any closed package or container, 
except master containers of consumer packages, individual consumer 
packages, and Euro five down reusable plastic containers, shall conform 
to the requirements of standard pack: Provided, That peaches in any 
such volume-filled container need only be filled to within one-inch of 
the top of the container.
* * * * *
    (4) Each package or container of peaches shall bear, on one outside 
end in plain sight and in plain letters, the name and address of the 
shipper.
    (5) * * *
    (ii) The size of peaches in molded forms (tray-packs) in 
experimental containers, and in the No. 22G standard lug boxes, shall 
be indicated according to the number of such peaches when packed in 
molded forms in the No. 22D standard lug box or the No. 32 standard 
box, in accordance with the requirements of standard pack, such as ``80 
size,'' ``88 size,'' etc., along with count requirements in paragraph 
(a)(5)(i) of this section.
* * * * *
    (iv) * * *
Table 1--Weight-Count Standards for All Varieties of Peaches (Except 
Peento (Donut) Varieties) Packed in Loose-Filled or Tight-Filled 
Containers
* * * * *
Table 2--Weight Count Standards for All Varieties of Peaches (Except 
Peento (Donut) Varieties) Packed in Loose-Filled or Tight-Filled 
Containers.
* * * * *

 Table 3--Weight-Count Standards for Peento (Donut) Varieties of Peaches
            Packed in Loose-Filled or Tight-Filled Containers
------------------------------------------------------------------------
                                                              Column B--
                                                               Maximum
                                                              number of
            Column A--Tray pack size designation              peaches in
                                                              a 16-pound
                                                                sample
------------------------------------------------------------------------
80.........................................................          140
72.........................................................          128
70.........................................................          111
64.........................................................           99
60.........................................................           93
56.........................................................           87
54.........................................................           77
50.........................................................           80
48.........................................................           74
44.........................................................           70
42.........................................................           68
40.........................................................           59
36.........................................................           53
34.........................................................           50
------------------------------------------------------------------------

* * * * *
    (9) Each Euro five down returnable plastic container of loose-
filled peaches shall bear on one outside end in plain sight and in 
plain letters the words ``31 pounds net weight.''
* * * * *
    (b) As used in this section, ``standard pack'' and ``fairly uniform 
in size'' shall have the same meaning as set forth in the U.S. 
Standards for Grades of Peaches (Secs. 51.1210 to 51.1223) and all 
other terms shall have the same meaning as when used in the amended 
marketing agreement and order. A No. 12B standard fruit box measures 
2\3/8\ to 7\1/8\  x  11\1/2\  x  16\1/8\ inches, No. 22D standard lug 
box measures 2\7/8\ to 7\1/8\  x  13\1/2\  x  16\1/8\ inches, No. 22E 
standard lug box measures 8\3/4\  x  13\1/2\  x  16 inches, No. 22G 
standard lug box measures 7\3/8\ to 7\1/2\  x  13\1/4\  x  15\7/8\, No. 
32 standard box measures 5\3/4\ to 7\1/4\  x  12  x  19\3/4\ inches, 
and the Euro five down standard box measures 3\1/2\ to 10\3/4\  x  16 
x  24 inches. All dimensions are given in depth (inside dimensions) by 
width by length (outside dimensions). ``Individual consumer packages'' 
means packages holding 15 pounds or less net weight of peaches. ``Tree 
ripe'' means ``tree ripened'' and fruit shipped and marked as ``tree 
ripe,'' ``tree ripened,'' or any similar terms using the words ``tree'' 
and ``ripe'' must meet the minimum California Well Matured standards.
* * * * *
    (d) During the period April 6, 2002, through November 23, 2002, 
each container or package when packed with peaches meeting ``CA 
Utility'' quality requirements, shall bear the words ``CA Utility,'' 
along with all other required container markings, in letters at least 
\3/8\ inch in height on the visible display panel. Consumer bags or 
packages must also be clearly marked on the consumer bags or packages 
as ``CA Utility, `` along with all other required markings, in letters 
at least \3/8\ inch in height.
* * * * *

    7. Section 917.459 is amended by:
    A. Revising the introductory text of paragraph (a)(1);
    B. Revising the introductory text of paragraph (a)(1)(iv);
    C. Revising Table 1 of paragraph (a)(1)(iv); and
    D. Revising the introductory text of paragraphs (a)(2), (a)(3), 
(a)(5), and (a)(6) to read as follows:


Sec. 917.459  California peach grade and size regulation.

    (a) * * *
    (1) Any lot or package or container of any variety of peaches 
unless such peaches meet the requirements of U.S. No. 1 grade: 
Provided, That an additional 25 percent tolerance shall be permitted 
for fruit with open sutures/which are damaged, but not seriously 
damaged: Provided further, That peaches of the Peento type shall be 
permitted a 10 percent tolerance for healed, non-serious, blossom-end 
growth cracks: Provided further, That

[[Page 16297]]

during the period April 6, 2002, through November 23, 2002, any handler 
may handle peaches if such peaches meet ``CA Utility'' quality 
requirements. The term ``CA Utility'' means that not more than 40 
percent of the peaches in any container meet or exceed the requirement 
of the U.S. No. 1 grade, except that when more than 30 percent of the 
peaches in any container meet or exceed the requirements of U.S. No. 1 
grade, the additional 10 percent shall have non-scoreable blemishes as 
determined when applying the U.S. Standards for Grades of Peaches; and 
that such peaches are mature and are:
* * * * *
    (iv) The Federal or Federal-State Inspection Service shall make the 
final determinations on maturity through the use of color chips or 
other tests as determined appropriate by the inspection agency. The 
Federal or Federal-State Inspection Service will use the maturity 
guides listed in Table 1 in making maturity determinations for the 
specified varieties when inspecting to the ``well matured'' level of 
maturity. For these varieties, not less than 90 percent of any lot 
shall meet the color guide established for the variety, and an 
aggregate area of not less than 90 percent of the fruit surface shall 
meet the color guide established for the variety, except that for the 
Joanna Sweet variety of peaches, not less than an aggregate area of 100 
percent of the fruit surface shall meet the color guide established for 
the variety. For varieties not listed, the Federal or Federal-State 
Inspection Service will use such tests as it deems proper. A variance 
for any variety from the application of the maturity guides specified 
in Table 1 may be granted during the season to reflect changes in crop, 
weather, or other conditions that would make the specified guides an 
inappropriate measure of ``well matured.''

                                 Table 1
------------------------------------------------------------------------
             Column A variety                  Column B maturity guide
------------------------------------------------------------------------
Angelus...................................  I
August Lady...............................  L
Autumn Flame..............................  J
Autumn Gem................................  I
Autumn Lady...............................  H
Autumn Rose...............................  H
Blum's Beauty.............................  G
Brittney Lane.............................  J
Cal Red...................................  I
Carnival..................................  I
Cassie....................................  H
Coronet...................................  E
Crimson Lady..............................  J
Crown Princess............................  J
David Sun.................................  I
Diamond Princess..........................  J
Earli Rich................................  H
Earlitreat................................  H
Early Delight.............................  H
Early Elegant Lady........................  L
Early May Crest...........................  H
Early O'Henry.............................  I
Early Top.................................  G
Elberta...................................  B
Elegant Lady..............................  L
Fairtime..................................  G
Fancy Lady................................  J
Fay Elberta...............................  C
Fire Red..................................  I
First Lady................................  D
Flamecrest................................  I
Flavorcrest...............................  G
Flavor Queen..............................  H
Flavor Red................................  G
Franciscan................................  G
Goldcrest.................................  H
Honey Red.................................  G
Joanna Sweet..............................  J
John Henry................................  J
July Elberta..............................  C
June Lady.................................  G
June Pride................................  J
Kern Sun..................................  H
Kingscrest................................  H
Kings Lady................................  I
Kings Red.................................  I
Lacey.....................................  I
Lady Sue..................................  L
Late Ito Red..............................  L
Madonna Sun...............................  J
May Crest.................................  G
May Sun...................................  I
Merrill Gem...............................  G
Merrill Gemfree...........................  G
Morning Lord..............................  J
O'Henry...................................  I
Pacifica..................................  G
Prima Gattie 8............................  L
Queencrest................................  G
Ray Crest.................................  G
Red Dancer (Red Boy)......................  I
Redhaven..................................  G
Red Lady..................................  G
Redtop....................................  G
Regina....................................  G
Rich Lady.................................  J
Rich May..................................  H
Rich Mike.................................  H
Rio Oso Gem...............................  I
Royal Lady................................  J
Royal May.................................  G
Ruby May..................................  H
Ryan Sun..................................  I
September Sun.............................  I
Sierra Crest..............................  H
Sierra Lady...............................  I
Sparkle...................................  I
Sprague Last Chance.......................  L
Springcrest...............................  G
Spring Delight............................  G
Spring Lady...............................  H
Summer Lady...............................  L
Summerset.................................  I
Summer Zee................................  L
Suncrest..................................  G
Supechfour (Amber Crest)..................  G
Super Rich................................  H
Sweet Dream...............................  J
Sweet Gem.................................  J
Sweet Mick................................  J
Sweet Scarlet.............................  J
Topcrest..................................  H
Tra Zee...................................  J
Vista.....................................  J
Willie Red................................  G
Zee Lady..................................  L
60EF32....................................  I
------------------------------------------------------------------------


    Note: Consult with the Federal or Federal-State Inspection 
Service Supervisor for the maturity guides applicable to the 
varieties not listed above.

* * * * *
    (2) Any package or container of Earlitreat or 91002 variety peaches 
unless:
* * * * *
    (3) Any package or container of Snow Kist, Super Rich or Topcrest 
variety peaches unless:
* * * * *
    (5) Any package or container of Babcock, Bev's Red, Brittney Lane, 
Crimson Lady, Crown Princess, David Sun, Early May Crest, Flavorcrest, 
June Lady, Kern Sun, Kingscrest, May Crest, May Sun, May Sweet, Pink 
Rose, Prima Peach IV, Queencrest, Ray Crest, Redtop, Rich May, Rich 
Mike, Snow Brite, Snow Prince, Springcrest, Spring Lady, Spring Snow, 
Sugar May, Sunlit Snow (172LE81), Sweet Scarlet, White Dream, Zee 
Diamond, 012-094, or 172LE White Peach (Crimson Snow/Sunny Snow) 
variety peaches unless:
* * * * *
    (6) Any package or container of August Lady, Autumn Flame, Autumn 
Red, Autumn Rose, Autumn Snow, Cal Red, Cassie, Champagne, Coral 
Princess, Country Sweet, Diamond Princess, Earli Rich, Early Elegant 
Lady, Elegant Lady, Fairtime, Fancy Lady, Fay Elberta, Flamecrest, 
Flaming Dragon, Full Moon, Garnet Jewel, Ivory Princess, Jillie White, 
Joanna Sweet, John Henry, July Flame, June Pride, Kaweah, Kings Lady, 
Klondike, Lacey, Late Ito Red, Madonna Sun, Morning Lord, O'Henry, 
Pretty Lady, Prima Gattie 8, Prima Peach 13, Prima Peach 20, Prima 
Peach 23, Prima Peach XXV, Prima Peach XXVII, Princess Gayle, Queen 
Lady, Red Dancer, Red Sun, Rich Lady, Royal Lady, Ryan Sun, Saturn 
(Donut), Scarlet Snow, September Flame, September Snow, September Sun, 
Sierra Gem, Sierra Lady, Snow Blaze, Snow Fall, Snow Gem, Snow Giant, 
Snow Jewel, Snow King, Sprague Last Chance,

[[Page 16298]]

Spring Gem, Sugar Giant, Sugar Lady, Summer Dragon, Summer Lady, Summer 
Sweet, Summer Zee, Supechfour (Amber Crest), Sweet Dream, Sweet Gem, 
Sweet Kay, Sweet September, Tra Zee, Vista, White Lady, Zee Lady, or 
24-SB variety peaches unless:
* * * * *

    Dated: March 28, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-8140 Filed 4-3-02; 9:51 am]
BILLING CODE 3410-02-P