[Federal Register Volume 69, Number 58 (Thursday, March 25, 2004)]
[Rules and Regulations]
[Pages 15641-15652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6702]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV04-916-1 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, and 
container requirements for fresh shipments of these fruits, beginning 
with 2004 season shipments. This rule also continues a modification of 
the requirements for placement of Federal-State Inspection Service lot 
stamps for the 2004 season and beyond, establishes a minimum net weight 
for a style of containers, authorizes continued shipments of ``CA 
Utility'' quality nectarines and peaches, and revises the tolerance for 
blossom-end growth cracks for Peento type 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 would enable handlers to 
continue shipping fresh nectarines and peaches meeting consumer needs 
in the interests of producers, handlers, and consumers of these fruits.

DATES: Effective March 26, 2004. Comments received by May 24, 2004, 
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] or www.regulations.gov. 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, 
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

[[Page 15642]]

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 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 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 12, 2003, and 
unanimously recommended that these handling requirements be revised for 
the 2004 season, which begins about the first or second week of April. 
The changes: (1) Continue indefinitely the lot stamping requirements 
that have been in effect since the 2000 season; (2) authorize continued 
shipments of ``CA Utility'' quality fruit during the 2004 season; (3) 
revise tolerances for blossom-end growth cracks for Peento type 
peaches; (4) establish a minimum net weight for volume-filled, five 
down containers; (5) add an additional container to the list of 
standard containers and amend the dimensions of another container 
already regulated; 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. The committees held such meetings on November 12, 
2003. 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 2004 crop will be similar in size and characteristics to the 2003 
crop, which totaled 21,896,300 containers of nectarines and 22,306,300 
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 from which 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.
    Several new containers have been adopted for use by nectarine and 
peach handlers in recent years. 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 continuing concern for the inspection service and 
the industry 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 or lots of nectarines or peaches. This would 
also jeopardize the use of the lot stamp numbers for the industry's 
``trace back'' program.
    To address this concern since the 2000 season, the committees have 
annually 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 offered by the 
manufacturers have not yet transpired.
    In a meeting of the Tree Fruit Quality Subcommittee on October 23, 
2003, the subcommittee recognized that as time has passed, the 
likelihood of getting a suitable adhesive for the cards or an area on 
the containers for container markings has decreased significantly. 
Therefore, the subcommittee determined that it was no longer 
appropriate to put this regulation into effect annually. When the time 
comes that an adhesive for the cards becomes available or another 
method for securing the lot stamp on each container is found, the 
subcommittee determined that they would make a

[[Page 15643]]

recommendation to eliminate this requirement.
    For those reasons, the subcommittee unanimously recommended to the 
committees that the requirement for lot stamp numbers on USDA-approved 
pallet tags, when used on RPCs, as well as on individual containers on 
a pallet, be required for the 2004 season and beyond. The committees 
then recommended unanimously that such requirement be implemented for 
the 2004 season and beyond, as well.
    Thus, Sec. Sec.  916.115 and 917.150 will be amended to require the 
lot stamp number to be printed on a USDA-approved pallet tag, when used 
on RPCs 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. This regulation 
will remain in effect until such time as it may be modified.

Container and Pack Requirements

    Sections 916.52 and 917.41 of the orders authorize establishment of 
container, container marking, and pack requirements for shipments of 
nectarines and peaches, respectively. Under Sec. Sec.  916.350 and 
917.442 of the orders' rules and regulations, the specifications of 
container markings, net weights, well-filled requirements, weight-count 
standards for various sizes of nectarines and peaches, and lists of 
standard containers are provided.
    The committees unanimously recommended that a uniform net weight be 
established for all ``five down'' boxes (commonly referred to as 
``Euro'' boxes) that are volume-filled. Currently, the net weight 
requirement for volume-filled, ``five down'' boxes is 29 and 31 pounds.
    ``Five down'' boxes are containers that lay in a pattern of five 
containers per layer on each pallet. In other words, each layer of 
boxes on a pallet contains only five Euro boxes. Other container sizes 
and footprints may result in nine boxes per layer, etc.
    During the 2003 season, the industry used both the 29-pound and 31-
pound net weights in Euro containers, and committee staff tracked the 
total packages of nectarines and peaches of each weight. The purpose of 
the tracking was to see if one net weight was predominant.
    At a meeting of the Tree Fruit Quality Subcommittee meeting on 
October 23, 2003, the results of the study were released. During the 
2003 season, 94,300 twenty-nine-pound boxes of nectarines were packed 
compared to 8,520 thirty-one-pound boxes of nectarines. There were also 
69,115 twenty-nine-pound boxes of peaches packed as compared to 17,103 
thirty-one-pound boxes. Based upon the statistics, the subcommittee 
voted unanimously to recommend to the committees that the minimum net 
weight for all volume-filled, five down Euro containers should be 
established at 29 pounds.
    At the November 12, 2003, meeting, the NAC and PCC also unanimously 
recommended that all volume-filled, five down Euro boxes have an 
established net weight of 29 pounds, which is to be printed on the end 
of the container.
    Nectarines: For the reasons stated above, paragraphs (a)(1) and 
(a)(8) of Sec.  916.350 are revised to refer to all volume-filled, five 
down Euro containers. Such changes will ensure that all volume-filled, 
five down Euro containers of nectarines are a net weight of 29 pounds. 
The container markings shall be placed on one outside end of the 
container in plain sight and in plain letters.
    Peaches: For the reasons stated above, paragraphs (a)(1) and (a)(9) 
of Sec.  917.442 are revised to refer to all volume-filled, five down 
Euro containers. Such changes will ensure that all volume-filled, five 
down Euro containers of peaches are a net weight of 29 pounds. The 
markings shall be placed on one outside end of the container in plain 
sight and in plain letters.

Standard Container Listings

    This rule also makes changes to the pack and container marking 
requirements to establish one new standard container being used by the 
industry and to modify the dimensions of another already regulated. 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 Sec. Sec.  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. The container was, then, added to the list 
of standard containers, as approved by USDA.
    During the 2003 season, the California Department of Food and 
Agriculture (CDFA) modified the dimensions of the Euro five down 
container and assigned it No. 35. CDFA also assigned numbers to one new 
container, the No. 36. These two new numbers were then added to the 
California Agricultural Code. By standardizing containers, the State 
permits handlers to use a new container for more than ten percent of 
their annual shipments. Otherwise, the container would be considered an 
experimental container for which handlers would have to file an 
application and limit shipments in such containers to a maximum of ten 
percent of their total seasonal shipments. Once containers are 
standardized within the California Agricultural Code, they are 
historically added to the orders so that regulated handlers may use 
them for packaging nectarines and peaches.
    Thus, paragraph (b) of Sec. Sec.  916.350 and 917.442 will be 
revised to add the new No. 36, and the revised and renamed No. 35 to 
the list of standard containers.

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 Sec. Sec.  916.350, 916.356, 917.442, and 917.459 
to permit shipments of nectarines and peaches meeting ``CA Utility'' 
quality requirements during the 2004 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

[[Page 15644]]

shipments, or approximately 210,000 containers. Shipments of ``CA 
Utility'' nectarines reached a high of 6 percent (1,408,362 containers) 
during the 2003 season.
    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 5.6 
percent of all peach shipments (1,231,000 containers) during the 2002 
season.
    Handlers have also commented that the availability of the ``CA 
Utility'' quality option 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 Tree Fruit Quality Subcommittee met on October 23, 2003, and 
recommended unanimously to the NAC and PCC to continue shipments of 
``CA Utility'' quality nectarines and peaches. Subsequently, the NAC 
and PCC voted unanimously at their November 12, 2003, meetings to 
authorize continued shipments of ``CA Utility'' quality fruit during 
the 2004 season.
    Accordingly, based upon the recommendations, paragraph (d) of 
Sec. Sec.  916.350 and 917.442, and paragraph (a)(1) of Sec. Sec.  
916.356 and 917.459 are revised to permit shipments of nectarines and 
peaches meeting ``CA Utility'' quality requirements during the 2004 
season, on the same basis as shipments since the 2000 season.

Maturity Requirements

    In Sec. Sec.  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 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 Sec. Sec.  916.356 and 
917.459, for nectarines and peaches, respectively.
    The requirements in the 2004 handling regulations are the same as 
those that appeared in the 2003 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 seven varieties of nectarines. Specifically, SPI 
recommended adding maturity guides for the Honey Dew variety to be 
regulated at the B maturity guide, for the Emelia and Grand Sweet 
varieties at the J maturity guide, for the June Candy and Regal Red at 
the K maturity guide, and the Gee Sweet and Honey Fire varieties to be 
regulated at the L maturity guide.
    In addition, eight nectarine varieties are no longer being shipped 
and should be deleted from the listing of maturity guide assignments. 
Thus, Table 1 of paragraph (a)(1)(iv) of Sec.  916.356 will be revised 
to delete eight varieties. These are the Autumn Grand, Early May, Early 
May Grand, Independence, May Jim, May Lion, Red Grand, and Royal 
Delight.
    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 twelve peach varieties. Specifically, SPI recommended adding 
maturity guides for the May Sweet and Sweet September varieties to be 
regulated at the I maturity guide; the Burpeachone (Spring 
FlameTM 21), Burpeachtwo (Henry IITM), Candy Red, 
Country Sweet, Pretty Lady, Prima Peach 23, Shelly, Sierra Gem, and 
Summer Kist varieties to be regulated at the J maturity guide; and the 
Kaweah variety to be regulated at the L maturity guide.
    Thus, Table 1 of paragraph (a)(1)(iv) of Sec.  917.459 will be 
revised to reflect these recommendations.
    In addition, three peach varieties are no longer being shipped and 
should be deleted from the listing of maturity guide assignments. Thus, 
Table 1 of paragraph (a)(1)(iv) of Sec.  917.459 will be revised to 
delete the Sierra Crest peach variety. The PCC also recommended that 
the Johnny's White and Snow Ball peach varieties be deleted. However, 
these two varieties were deleted from Table 1 several years ago.
    SPI has also recommended changes to the ``California Well-Matured'' 
or ``CA WELL MAT'' maturity requirements for varieties of nectarines 
and peaches with insufficient ``ground color'' (ground color is the 
skin color beneath the characteristic red or pink exhibited on the 
fruit). Under the changes, the stem cavity will be utilized to make a 
determination regarding ``California Well-Matured'' or ``CA WELL MAT'' 
for varieties that have insufficient ground color. These varieties are 
usually highly colored red varieties on which the stem cavity is the 
only location where the ground color can be seen. SPI further 
recommends that the color in the stem cavity for most varieties should 
be at least at the H maturity guide and that confirmation of the 
maturity may further be established by using other ``California Well-
Matured'' characteristics.
    Further, SPI has recommended that two nectarine varieties be 
notated with an asterisk for additional inspection information. 
According to SPI, inspectors have determined that the Honey Dew and 
Mango varieties are appropriately ``California Well Matured `` or ``CA 
WELL MAT'' when the ground color is ``breaking yellowish-green.'' In 
other words, the ground color of the fruit is a green color showing 
signs of changing to a yellow or orange color for yellow-fleshed 
varieties, and a green color showing signs of changing to a cream color 
for white-fleshed varieties.
    The notes at the end of Table 1 of paragraph (a)(1)(iv) of Sec.  
916.356 will be amended to reflect these recommendations regarding 
nectarines, and the notes at the end of Table 1 of paragraph (a)(1)(iv) 
of Sec.  917.459 will be amended to include the recommendation that the 
stem cavity will be used to determine the appropriate ground color for 
certain peach varieties.
    The NAC and 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 nectarine and peach varieties in 
production.
    Size Requirements: Both orders provide (in Sec. Sec.  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

[[Page 15645]]

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 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 nine varieties of 
nectarines that were produced in commercially significant quantities of 
more than 10,000 containers for the first time during the 2003 season. 
This rule also removes the variety-specific minimum size requirements 
for five varieties of nectarines whose shipments fell below 5,000 
containers during the 2003 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the White September 
variety of nectarines, recommended for regulation at a minimum size 80. 
Studies of the size ranges attained by the White September variety 
revealed that 100 percent of the containers met the minimum size of 80 
during the 2000, 2001, and 2002 seasons. Sizes ranged from size 40 to 
size 80, with 24.7 percent of the fruit in the 40 sizes, 33.1 percent 
of the packages in the 50 sizes, 38.9 percent in the 60 sizes, 3.3 
percent in the 70 sizes, and 0 percent in the size 80, for the 2002 
season. However, the fruit sized down to the 80 sizes during the two 
previous seasons, and setting the minimum size at size 70 would not be 
appropriate at this time.
    A review of other varieties with the same harvesting period 
indicated that the White September 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 White September in the variety-specific minimum size 
regulation at a minimum size 80 is appropriate. This recommendation 
results from size studies conducted over a three-year period.
    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 Spring Ray variety; the introductory text of paragraph 
(a)(5) of Sec.  916.356 is revised to include Mango variety; and the 
introductory text of paragraph (a)(6) of Sec.  916.356 is revised to 
include the Arctic Gold, August Fire, Emelia, Honey Fire, Red Pearl, 
Ruby Bright, and White September nectarine varieties.
    This rule also revises the introductory text of paragraphs (a)(3), 
(a)(4), and (a)(6) of Sec.  916.356 to remove five varieties from the 
variety-specific minimum size requirements specified in these 
paragraphs because less than 5,000 containers of each of these 
varieties were produced during the 2003 season. Specifically, the 
introductory text of paragraph (a)(3) of Sec.  916.356 is revised to 
remove the Grand Sun nectarine variety; the introductory text of 
paragraph (a)(4) of Sec.  916.356 is revised to remove the May Grand 
and Red Glo nectarine varieties; and the introductory text of paragraph 
(a)(6) of Sec.  916.356 is revised to remove the Firebrite and Sun 
Diamond 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 17 peach varieties that were produced in commercially significant 
quantities of more than 10,000 containers for the first time during the 
2003 season. This rule also removes the variety-specific minimum size 
requirements for 14 varieties of peaches whose shipments fell below 
5,000 containers during the 2003 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Jupiter variety of 
peaches, which was recommended for regulation at a minimum size 72. 
Studies of the size ranges attained by the Jupiter variety revealed 
that 100 percent of the containers met the minimum size of 72 during 
the 2000, 2001, and 2002 seasons. The sizes ranged from size 30 to size 
70, with 39.1 percent of the containers meeting the size 30, 31.1 
percent meeting the size 40, 29.3 percent meeting the size 60, and .05 
percent meeting the size 70.
    A review of other varieties with the same harvesting period 
indicated that the Jupiter variety was also comparable to those 
varieties in its size ranges for that time period. Discussions with 
handlers known to pack the variety confirm this information regarding 
minimum size and the harvesting period, as well. Thus, the 
recommendation to place the Jupiter variety in the variety-specific 
minimum size regulation at a minimum size 72 is appropriate. This 
recommendation, as with all other size recommendations for peaches, 
results from size studies conducted over a three-year period.
    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)(5) of Sec.  917.459 is revised 
to include the Burpeachfourteen (Spring FlameTM 20), Scarlet 
Queen, Sugar Time (214LC68), and the Supecheight peach varieties; and 
the introductory text of paragraph (a)(6) of Sec.  917.459 is revised 
to include the Autumn Fire, Autumn Ruby, Burpeachseven (Summer 
FlameTM 29), Gypsy Red, Ice Princess, Jupiter, Late 
September Snow, Magenta Gold, Pink Moon, Ruby Gold, Sugar Crisp, Sugar 
Red, and Sweet Blaze peach varieties.
    This rule also revises the introductory text of paragraph (a)(4) of 
Sec.  917.459 to remove the Snow Dance peach variety; revises the 
introductory text of paragraph (a)(5) of Sec.  917.459 to remove the 
Happy Dream, Kern Sun, Kingscrest, Pink Rose, Ray Crest, and Rich Mike

[[Page 15646]]

peach varieties; and revises the introductory paragraph (a)(6) of Sec.  
917.459 to remove the Cassie, Flamecrest, Kings Lady, Prima Peach XXV, 
Red Dancer, Sierra Lady, and Sweet Gem peach varieties 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 2003 season.
    The removal of the Snow Dance peach variety from the introductory 
text of paragraph (a)(4) of Sec.  917.459 results in no peach varieties 
regulated at a minimum size 84. This paragraph is being reserved for 
future use. The committees may recommend new peach varieties for 
regulation at this size in the future.
    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) 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.

Peento Type Peach Tolerances

    The Tree Fruit Quality Subcommittee met on July 25, 2003, to 
discuss a modified blossom-end growth crack tolerance for Peento type 
peaches for the 2004 and subsequent seasons. Peento type peaches, also 
known as donut peaches due to their characteristic flattened shape, 
have been produced for a decade. Because of their genetic 
characteristics, these flattened peaches are prone to blossom-end 
growth cracks. These cracks heal while on the tree and do not affect 
the edibility of the fruit. Since the 2000 season, this peach has been 
provided an additional tolerance of 10 percent for well-healed, non-
serious blossom-end growth cracks. A grower who produces a large 
quantity of Peento type peaches advised the subcommittee that adverse 
weather in the spring of 2003 caused a larger than normal percentage of 
his fruit to fail inspection even with the additional tolerance for 
well healed non serious blossom-end growth cracks.
    The subcommittee deliberated whether to relax the tolerance for 
blossom-end growth cracks, carefully weighing the grower's desire to 
market as much of his crop as possible against the industry's desire of 
assuring that quality peaches end up in the market place. In the end, 
the subcommittee decided that this was a minor defect that did not 
affect edibility, contribute to internal breakdown, or dramatically 
detract from fruit appearance, and recommended to the PCC that the 
tolerance be modified. The modification allows for an unlimited amount 
of blossom-end cracking as long as the cracks are well healed and do 
not exceed the aggregate area of a circle 3/8 of an inch in diameter 
and/or do not exceed a depth that exposes the peach pit.
    The PCC adopted the subcommittee's recommendation on blossom-end 
growth cracks and recommended the relaxations to USDA. The relaxed 
requirements are expected to allow more fruit to be marketed and to 
return more value to the producer.
    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 to 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.

Industry Information

    There are approximately 250 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 include 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. For the 2003 season, the committees' staff estimated that the 
average handler price received was $7.00 per container or container 
equivalent of nectarines or peaches. A handler would have to ship at 
least 714,286 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 2003 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. For the 2003 season, the committees' estimated the average 
producer price received was $4.00 per container or container equivalent 
for nectarines and peaches. A producer would have to produce at least 
187,500 containers of nectarines and peaches to have annual receipts of 
$750,000. Given data maintained by the committees' staff and the 
average producer price received during the 2003 season, the committees' 
staff estimates that small producers represent more than 80 percent of 
the producers within the industry. With an average producer price of 
$4.00 per container or container equivalent, and a combined packout of 
nectarines and peaches of 44,202,600 containers, the value of the 2003 
packout level is estimated to be $176,810,400. Dividing this total 
estimated grower revenue figure by the estimated number of producers 
(1,800) yields an estimate of average revenue per producer of about 
$98,228 from the sales of peaches and nectarines.

[[Page 15647]]

Regulatory Revisions

    Under Sec. Sec.  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 12, 2003, and unanimously recommended 
that these handling requirements be revised for the 2004 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 have been 
in effect since the 2000 season; (2) authorize shipments of ``CA 
Utility'' quality fruit to continue during the 2004 season; (3) revise 
tolerances for blossom-end growth cracks for Peento type peaches; (4) 
establish a minimum net weight for volume-filled, five down containers; 
(5) add an additional container to the list of standard containers and 
amend the dimensions of another container already regulated; and (6) 
revise varietal maturity, quality, and size requirements to reflect 
changes in growing and marketing practices.

Lot Stamping Requirements--Discussions and Alternatives

    This rule authorizes continuation of the lot stamping requirements 
for returnable plastic containers under the marketing orders' rules and 
regulations that have been in effect for such containers since the 2000 
season for nectarine and peach shipments. The modified requirements of 
Sec. Sec.  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 2004 and beyond 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 Tree Fruit Quality Subcommittee met on October 23, 2003, and 
considered possible alternatives to this action. Other alternatives 
were rejected because the members of the subcommittee determined that 
given the different styles and configurations of RPCs available, having 
a satisfactory adhesive for placement of the cards might not be 
realistic. Box manufacturers have been very slow to respond to the 
industry's requests. The subcommittee recognized that as time has 
passed, the likelihood of getting a suitable adhesive for the cards has 
decreased significantly. Therefore, the subcommittee determined that it 
was no longer appropriate to put this regulation into effect annually. 
When the time comes that an adhesive for the cards becomes available or 
another method for securing the lot stamp on each container is found, 
the subcommittee determined that they would make a recommendation to 
adjust this requirement.
    For these reasons, the subcommittee and the committees unanimously 
recommended continuing from season to season 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 are intended to ensure 
that all the containers on each pallet have been inspected and 
certified in the event a card on an individual container or containers 
is removed, misplaced, or lost.

Grade and Quality Requirements--Discussions and Alternatives

    In 1996, Sec. Sec.  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 2004 season.
    The Tree Fruit Quality Subcommittee met on October 23, 2003, and 
unanimously agreed that the ``CA Utility'' quality requirements that 
are currently in place should be continued. Also, not authorizing such 
shipments would be an abrupt departure from their current practices. 
The NAC and PCC also unanimously recommended such continuation at their 
meetings on November 12, 2003, and have done so continuously since such 
shipments were first authorized in 1996.

Container and Container Marking Requirements--Discussions and 
Alternatives

    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 establish a minimum net weight 
of 29 pounds for all types of five down Euro boxes.
    This rule also makes changes to the pack and container marking 
requirements to establish one new standard container and to modify the 
dimensions of another container being used by the industry.
    During the 2003 season, the California Department of Food and 
Agriculture assigned numbers to one new container, the No. 36, modified 
the dimensions of the Euro five down container, and assigned that 
container the No. 35. The new container and the modified dimensions of 
the Euro five down container were then added to the California 
Agricultural Code.
    By standardizing containers, the State permits handlers to use a 
new container for more than ten percent of their annual shipments. 
Otherwise, the container would be considered an experimental container 
for which handlers would have to file an application and limit 
shipments in such containers to a maximum of ten percent of their total 
seasonal shipments. Once containers are standardized within the 
California Agricultural Code, they are historically added to the orders 
so that regulated handlers may use them for packaging nectarines and 
peaches.
    At the meeting of the Tree Fruit Quality Subcommittee on October 
23, 2003, the addition of these standardized boxes was discussed. The 
members noted that these two boxes are used increasingly and may 
continue to be, potentially replacing the older, more conventional 
boxes. According to one member of the subcommittee, no handler really 
wants to add extra boxes to the growing inventory of box sizes and 
styles; but in practical terms, the retail customers prefer the newer 
boxes, so they must be added to the list of available and standard 
containers. The alternative was unacceptable because handlers would not 
have them available when requested by their retail customer.
    The Tree Fruit Quality Subcommittee also discussed the net weight 
requirement for all five down Euro containers at its meeting on October 
23, 2003. At that time, the subcommittee discussed results from the 
2003 season during which both a 29- and 31-pound container had been 
authorized. Experience of handlers during the season resulted in the 
subcommittee's recommendation that only the 29-pound container continue 
to be authorized. The subcommittee unanimously recommended the change 
to the committees. The alternative would have meant that RPC five down 
Euro

[[Page 15648]]

containers would have been subject to both the 29- and 31-pound net 
weight. In consideration of uniformity for five down Euro containers, 
this alternative was rejected.

Minimum Maturity and Size Levels--Discussions and Alternatives

    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 refinements in measurements of the maturity 
characteristics of nectarines and peaches as experienced over previous 
seasons' inspections. Adjustments in the guides utilized 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 2004 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 would be contrary to 
the long-term interests of producers, handlers, and consumers. For 
these reasons, this alternative was not recommended.

Peento Type Peach Tolerances--Discussions and Alternatives

    The Tree Fruit Quality Subcommittee met on July 25, 2003, to 
discuss a modified growth-crack tolerance for Peento type peaches for 
the 2004 and later seasons with a concerned grower. The grower advised 
the subcommittee that weather problems created some anomalies for his 
2003 crop of Peento type peaches. A larger than normal percentage of 
his fruit failed inspection during the 2003 season because of blossom-
end growth cracks. This type of peach is prone to such cracks. However, 
the cracks do not affect the edibility of the fruit, contribute to 
internal breakdown, or detract from the appearance of the fruit unless 
the cracks are unusually large.
    The subcommittee deliberated whether to relax the tolerance for 
blossom end growth cracks for the 2004 season, carefully weighing the 
grower's need to have a crop to market and the need to maintain a 
quality product in the market place. In the end, the subcommittee 
determined that peaches of the Peento type should be permitted blossom 
end cracking as long as the cracks are well healed, do not exceed the 
aggregate area of a circle \3/8\ inch in diameter and/or do not exceed 
a depth that exposes the pit. This relaxation is in lieu of the current 
requirement that Peento type peaches should be permitted a 10 percent 
tolerance for well-healed, non-serious, blossom-end growth cracks.
    The PCC agreed with the subcommittee and recommended that the 
current tolerance for blossom-end growth cracks on Peento type peaches 
be revised to meet the demands of the growers and buyers of these 
unique peaches.
    An alternative to this action would have been to leave these 
requirements unchanged. However, this would have meant that the growers 
of these fruits would be restricted in marketing them, since these 
fruits exhibit an increased propensity for blossom-end growth cracks, 
which are only a cosmetic defect. The relaxation is expected to allow 
more of these peaches to be marketed and to improve producer returns.
    The committees make recommendations regarding the revisions in 
handling and lot stamping requirements after considering all available 
information, including recommendations by various subcommittees, 
comments of persons at subcommittee meetings, and comments received by 
committee staff. Such subcommittees include the Tree Fruit Quality 
Subcommittee, the Marketing Order Amendment Task Force, and the 
Executive Committee.
    At the meetings, the impact of and alternatives to these 
recommendations are deliberated. These subcommittees, like the 
committees themselves, frequently consist of individual producers and 
handlers with many years of experience in the industry who are familiar 
with industry practices and trends. Like all committee meetings, 
subcommittee meetings are open to the public and comments are widely 
solicited. In the case of the Tree Fruit Quality Subcommittee, many 
growers and handlers who are affected by the issues discussed by the 
subcommittee attend and actively participate in the public 
deliberations, or call and/or write in their concerns and comments to 
the staff for presentation at the meetings. In addition, minutes of all 
subcommittee meetings are distributed to committee members and others 
who have requested them, thereby increasing the availability of 
information within the industry.
    Each of the recommended handling requirement changes for the 2004 
season is expected to generate financial benefits for producers and 
handlers through increased fruit sales, compared to the situation that 
would exist if the changes were not adopted. Both large and small 
entities are expected to benefit from the changes, and the costs of 
compliance are not expected to be substantially different between large 
and small entities.
    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 
throughout the

[[Page 15649]]

nectarine and peach industry and all interested parties are encouraged 
to attend and participate in committee deliberations on all issues. 
These meetings are held annually in the fall and spring. Like all 
committee meetings, the November 12, 2003, meetings were public 
meetings, and all entities, large and small, were encouraged to express 
views on these issues. These regulations were also reviewed and 
thoroughly discussed at subcommittee meetings held on July 25, October 
1, and October 23, 2003. 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 Web site: 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.
    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.
    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.
    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 
shipments of these fruits are expected to begin in early April; (2) 
this rule relaxes grade requirements for nectarines and peaches; (3) 
appropriate subcommittees met and made recommendations to the 
committees, the committees met and unanimously recommended these 
changes at public meetings, and interested persons had opportunities to 
provide input at all those meetings; 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.


0
For the reasons set forth in the preamble, 7 CFR parts 916 and 917 are 
amended as follows:
0
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

0
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 
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.

0
3. Section 916.350 is amended by:
0
A. Revising paragraph (a)(8);
0
B. Revising paragraph (b); and
0
C. Revising paragraph (d) to read as follows:


Sec.  916.350  California nectarine container and pack regulation.

    (a) * * *
    (8) Each five down Euro container of loose-filled nectarines shall 
bear on one outside end in plain sight and in plain letters the words 
``29 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 Grade 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, a No. 22D standard lug box 
measures 2\7/8\ to 7\1/8\ x 13\1/2\ x 16\1/8\ inches, a No. 22E 
standard lug box measures 8\3/4\ x 13\1/2\ x 16\1/8\ inches, a No. 22G 
standard lug box measures 7\3/8\ to 7\1/2\ x 13\1/4\ x 15\7/8\ inches, 
a No. 32 standard box measures 5\3/4\ to 7\1/4\ x 12 x 19\3/4\ inches, 
a No. 35 standard box measures 3\1/2\ to 7\15/16\ x 15\9/16\ to 15\13/
16\ x 23\1/4\ to 23\3/4\ inches, and a No. 36 standard box measures 5 
to 6\1/2\ x 13\1/4\ x 17\1/4\ inches. All dimensions are given in depth 
(inside dimensions) by width and 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 1 through October 31, 2004, 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 
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.
* * * * *

0
4. Section 916.356 is amended by:
0
A. Revising the introductory text of paragraph (a)(1);
0
B. Amending paragraph (a)(1)(iv) by revising Table 1 and the note to 
Table 1; and
0
C. Revising the introductory text of paragraphs (a)(3), (a)(4), (a)(5), 
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

[[Page 15650]]

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 1 through October 31, 2004, 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 B
                      Column A variety                         maturity
                                                                 guide
------------------------------------------------------------------------
Alshir Red..................................................          J
April Glo...................................................          H
August Glo..................................................          L
August Lion.................................................          J
August Red..................................................          J
Aurelio Grand...............................................          F
Autumn Delight..............................................          L
Big Jim.....................................................          J
Diamond Bright..............................................          J
Diamond Jewel...............................................          L
Diamond Ray.................................................          L
Earliglo....................................................          I
Early Diamond...............................................          J
Early Red Jim...............................................          J
Early Sungrand..............................................          H
Emelia......................................................          J
Fairlane....................................................          L
Fantasia....................................................          J
Firebrite...................................................          H
Fire Sweet..................................................          J
Flame Glo...................................................          L
Flamekist...................................................          L
Flaming Red.................................................          K
Flavortop...................................................          J
Gee Sweet...................................................          L
Grand Diamond...............................................          L
Grand Sweet.................................................          J
Gran Sun....................................................          L
Honey Blaze.................................................          J
Honey Dew...................................................         B*
Honey Fire..................................................          L
Honey Kist..................................................          I
Honey Royale................................................          J
July Red....................................................          L
June Brite..................................................          I
June Candy..................................................          K
Juneglo.....................................................          H
Kay Diamond.................................................          L
King Jim....................................................          L
Kism Grand..................................................          J
Late Le Grand...............................................          L
Late Red Jim................................................          J
Mango.......................................................         B*
May Diamond.................................................          I
May Fire....................................................          H
Mayglo......................................................          H
May Grand...................................................          H
May Kist....................................................          H
Mid Glo.....................................................          L
Moon Grand..................................................          L
Niagra Grand................................................          H
P-R Red.....................................................          L
Prince Jim..................................................          L
Prima Diamond XIII..........................................          L
Red Delight.................................................          I
Red Diamond.................................................          L
Red Fred....................................................          J
Red Free....................................................          L
Red Glen....................................................          J
Red Glo.....................................................          I
Red Jewel...................................................          L
Red Jim.....................................................          L
Red May.....................................................          J
Regal Red...................................................          K
Rio Red.....................................................          L
Rose Diamond................................................          J
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 Red..................................................          H
Spring Sweet................................................          J
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
Sunny Red...................................................          J
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. On varieties with less than 10 percent 
surface ground color required to determine California Well-Mature, 
the stem cavity color will be utilized to make the determination. As 
a guide, stem cavities for most varieties should be at least 
yellowish-green as defined by the H maturity guide. Confirmation may 
be further established by using other California well matured 
characteristics. Predominant ground color must be breaking yellowish 
green.

* * * * *
    (3) Any package or container of Mayglo variety of nectarines on or 
after May 6 of each year, or Crimson Baby, Earliglo, Early Diamond, or 
May Kist variety nectarines unless:
* * * * *
    (4) Any package or container of Arctic Rose, Arctic Star, Diamond 
Bright, Juneglo, June Pearl, Kay Glo, Kay Sweet, May Diamond, Prima 
Diamond IV, Prima Diamond VI, Prima Diamond XIII, Prince Jim, Prince 
Jim 1, Red Delight, Red Roy, Rose Diamond, Royal Glo, Sparkling May, 
Spring Ray, White Sun, or Zee Grand variety nectarines unless:
* * * * *
    (5) Any package or container of Mango or Red May 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 Fire, August Glo, 
August Lion, August Pearl, August Red, August Snow, Big Jim, Bright 
Pearl, Bright Sweet, Candy Gold, Candy Sweet, Diamond Ray, Early Red 
Jim, Emelia, Fire Pearl, Fire Sweet, Flame Glo, Flaming Red, Grand 
Diamond, Grand Pearl, Grand Sweet, Honey Blaze, Honey Fire, Honey Kist, 
Honey Royale, July Pearl, July Red, June Lion, Kay Pearl, King Jim, 
Late Red Jim, P-R Red, Prima Diamond IX, Prima Diamond XVIII, Prima 
Diamond XIX, Prima Diamond XXIV, Prima Diamond XXVIII, Red Diamond, Red 
Glen, Red Jim, Red Pearl, Regal Pearl, Regal Red, Royal Giant, Ruby 
Bright, Ruby Diamond, Ruby Pearl, Ruby Sweet, Scarlet Red, September 
Bright (26P-490), September Free, September Red, Sparkling June, 
Sparkling Red, Spring Bright, Spring Sweet, Summer Blush, Summer 
Bright, Summer Diamond, Summer Fire, Summer Grand, Summer Jewel, Summer 
Lion, Summer Red, Sunburst, Sunny Red, Sun Valley Sweet, Sweet White, 
Terra White, White September, or Zee Glo variety nectarines unless:
* * * * *

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

0
5. Section 917.150 is revised to read as follows:

[[Page 15651]]

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 
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.
0
6. Section 917.442 is amended by:
0
A. Revising paragraph (a)(9);
0
B. Revising paragraph (b) and;
0
D. Revising paragraph (d) to read as follows:


Sec.  917.442  California peach container and pack regulation.

    (a) * * *
    (9) Each five down Euro container of loose-filled peaches shall 
bear on one outside end in plain sight and in plain letters the words 
``29 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 Grade 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, a No. 22D standard lug box measures 
2\7/8\ to 7\1/8\ x 13\1/2\ x 16\1/8\ inches, a No. 22E standard lug box 
measures 8\3/4\ x 13 \1/2\ x 16 inches, a No. 22G standard lug box 
measures 7\3/8\ to 7\1/2\ x 13\1/4\ x 15\7/8\ inches, a No. 32 standard 
box measures 5\3/4\ to 7\1/4\ x 12 x 19\3/4\ inches, a No. 35 standard 
box measures 3\1/2\ to 7\15/16\ x 15\9/16\ to 15 \13/16\ x 23\1/4\ to 
23\3/4\ inches, and a No. 36 standard box measures 5 to 6\1/2\ x 13\1/
4\ x 17\1/4\ inches. All dimensions are given in depth (inside 
dimensions) by width and 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 1 through November 23, 2004, 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.
* * * * *

0
7. Section 917.459 is amended by:
0
A. Revising the introductory text of paragraph (a)(1);
0
B. Amending paragraph (a)(1)(iv) by revising Table 1 and the note to 
Table 1;
0
C. Revising the introductory text of paragraph (a)(4); and
0
D. Revising the introductory text of paragraphs (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 blossom end cracking that is well healed and does not exceed 
the aggregate area of a circle \3/8\ inch in diameter, and/or does not 
exceed a depth that exposes the pit: Provided further, That during the 
period April 1 through November 23, 2004, 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 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 Peaches; and that such 
peaches are mature and are:
* * * * *
    (iv) * * *

                                 Table 1
------------------------------------------------------------------------
                                                               Column B
                      Column A variety                         maturity
                                                                 guide
------------------------------------------------------------------------
Angelus.....................................................          I
August Lady.................................................          L
Autumn Flame................................................          J
Autumn Gem..................................................          I
Autumn Lady.................................................          H
Autumn Red..................................................          J
Autumn Rose.................................................          H
Blum's Beauty...............................................          G
Brittney Lane...............................................          J
Burpeachone (Spring Flame\TM\ 21)...........................          J
Burpeachthree (September Flame\TM\).........................          I
Burpeachtwo (Henry II \TM\).................................          J
Cal Red.....................................................          I
Candy Red...................................................          J
Carnival....................................................          I
Cassie......................................................          H
Coronet.....................................................          E
Crimson Lady................................................          J
Crown Princess..............................................          J
Country Sweet...............................................          J
David Sun...................................................          I
Diamond Princess............................................          J
Earlirich...................................................          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
Golden Princess.............................................          L
Honey Red...................................................          G
Joanna Sweet................................................          J
John Henry..................................................          J
July Elberta................................................           C
June Lady...................................................          G
June Pride..................................................          J
Kaweah......................................................          L
Kern Sun....................................................          H
Kingscrest..................................................          H
Kings Lady..................................................          I
Kings Red...................................................          I
Lacey.......................................................          I
Lady Sue....................................................          L
Late Ito Red................................................          L
Madonna Sun.................................................          J
Magenta Queen...............................................          J
May Crest...................................................          G
May Sun.....................................................          I
May Sweet...................................................          I
Merrill Gem.................................................          G
Merrill Gemfree.............................................          G
Morning Lord................................................          J
O'Henry.....................................................          I
Pacifica....................................................          G
Pretty Lady.................................................          J
Prima Gattie 8..............................................          L

[[Page 15652]]

 
Prima Gattie 10.............................................          J
Prima Peach 23..............................................          J
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
Shelly......................................................          J
Sierra Gem..................................................          J
Sierra Lady.................................................          I
Sparkle.....................................................          I
Sprague Last Chance.........................................          L
Springcrest.................................................          G
Spring Delight..............................................          G
Spring Lady.................................................          H
Springtreat.................................................          I
Summer Kist.................................................          J
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
Sweet September.............................................          I
Topcrest....................................................          H
Tra Zee.....................................................          J
Vista.......................................................          J
Willie Red..................................................          G
Zee Lady....................................................          L
------------------------------------------------------------------------


    Note: Consult with the Federal or Federal-State Inspection 
Service Supervisor for the maturity guides applicable to the 
varieties not listed above. On varieties with less than 10 percent 
surface ground color required to determine California Well Mature, 
the stem cavity color will be utilized to make the determination. As 
a guide, stem cavities for most varieties should be at least 
yellowish-green as defined by the H maturity guide. Confirmation may 
be further established by using other California well matured 
characteristics.

* * * * *
    (4) Any package or container of [reserved] variety peaches unless:
* * * * *
    (5) Any package or container of Babcock, Bev's Red, Brittney Lane, 
Burpeachone (Spring FlameTM 21), Burpeachfourteen (Spring 
FlameTM 20), Crimson Lady, Crown Princess, David Sun, Early 
May Crest, Flavorcrest, June Lady, Magenta Queen, May Crest, May Sun, 
May Sweet, Prima Peach IV, Queencrest, Redtop, Rich May, Scarlet Queen, 
Snow Brite, Snow Prince, Springcrest, Spring Lady, Spring Snow, 
Springtreat (60EF32), Sugar May, Sugar Time (214LC68), Sunlit Snow 
(172LE81), Supecheight, Sweet Scarlet, Zee Diamond, 012-094, or 172LE 
White Peach (Crimson Snow/Sunny Snow) variety peaches unless:
* * * * *
    (6) Any package or container of August Lady, Autumn Fire, Autumn 
Flame, Autumn Red, Autumn Rose, Autumn Ruby, Autumn Snow, Burpeachtwo 
(Henry IITM), Burpeachthree (September FlameTM), 
Burpeachfour (August FameTM), Burpeachfive (July 
FlameTM), Burpeachsix (June FlameTM), 
Burpeachseven (Summer FlameTM 29), Coral Princess, Country 
Sweet, Diamond Princess, Earlirich, Early Elegant Lady, Elegant Lady, 
Fairtime, Fancy Lady, Fay Elberta, Full Moon, Gypsy Red, Ice Princess, 
Ivory Princess, Jillie White, Joanna Sweet, John Henry, June Pride, 
Jupiter, Kaweah, Klondike, Late Ito Red, Late September Snow, Magenta 
Gold, O'Henry, Pink Giant, Pink Moon, Pretty Lady, Prima Gattie 8, 
Prima Peach 13, Prima Peach XV, Prima Peach 20, Prima Peach 23, Prima 
Peach XXVII, Princess Gayle, Queen Lady, Red Giant, Rich Lady, Royal 
Lady, Ruby Gold, Ryan Sun, Saturn (Donut), Scarlet Snow, September 
Snow, September Sun, Sierra Gem, Snow Beauty, Snow Blaze, Snow Fall, 
Snow Gem, Snow Giant, Snow Jewel, Snow King, Snow Princess, Sprague 
Last Chance, Spring Gem, Sugar Crisp, Sugar Giant, Sugar Lady, Sugar 
Red, Summer Dragon, Summer Lady, Summer Sweet, Summer Zee, Supechfour 
(Amber Crest), Sweet Blaze, Sweet Dream, Sweet Kay, Sweet September, 
Tra Zee, Vista, White Lady, Zee Lady, or 24-SB variety peaches unless:
* * * * *

    Dated: March 19, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-6702 Filed 3-24-04; 8:45 am]
BILLING CODE 3410-02-P