[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Rules and Regulations]
[Pages 16383-16392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6418]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 61 / Thursday, March 31, 2005 / Rules 
and Regulations  

[[Page 16383]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV05-916-1 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.

-----------------------------------------------------------------------

SUMMARY: This rule revises the handling requirements for California 
nectarines and peaches by modifying the grade, size, maturity, and pack 
requirements for fresh shipments of these fruits, beginning with 2005 
season shipments. This rule also authorizes continued shipments of ``CA 
Utility'' quality nectarines and peaches, and revises weight-count 
standards for fruit in volume-filled containers. 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 will enable handlers to 
continue to ship fresh nectarines and peaches in a manner that meets 
consumer needs, increases returns to producers and handlers, and 
reflects current industry practices.

DATES: Effective April 1, 2005. Comments received by May 31, 2005, 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 http://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: Laurel May, 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 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, grade, size, maturity, pack and container 
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 December 7, 2004, and unanimously 
recommended that these handling requirements be revised for the 2005 
season, which begins about the first or second week of April. The 
changes: (1) Revise varietal maturity, quality, and size requirements 
to better reflect current industry practices; (2) authorize continued 
shipments of ``CA Utility'' quality fruit during the 2005 season; and 
(3) adjust weight-count standards for fruit packed in volume-filled 
containers.
    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 December 7, 
2004. 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

[[Page 16384]]

peach trees were dormant. The committees will recommend a crop estimate 
at their meetings in early spring. However, preliminary estimates 
indicate that the 2005 crop will be slightly larger than the 2004 crop, 
which totaled approximately 19,904,500 containers of nectarines and 
20,518,400 containers of peaches.

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 continued shipments of nectarines and peaches meeting ``CA 
Utility'' quality requirements during the 2005 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 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 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 November 30, 2004, 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 December 7, 2004, meetings to 
authorize continued shipments of ``CA Utility'' quality fruit during 
the 2005 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 2005 
season, on the same basis as shipments since the 2000 season.

Maturity Requirements

    In Sec. Sec.  916.52 and 917.41, authority is also 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, along with 
other maturity tests as applied by the inspection service). 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 2005 handling regulations are the same as 
those that appeared in the 2004 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 eleven varieties of nectarines. Specifically, SPI 
recommended adding maturity guides for the Crimson Baby variety to be 
regulated at the G maturity guide; for the Alta Red, Grand Candy, Kay 
Glo, Kay Sweet, Red Roy and Shay Sweet varieties at the J maturity 
guide; and for the August Fire, Candy Gold, Prince Jim I and Sugar 
Queen varieties 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 six peach varieties. Specifically, SPI recommended adding maturity 
guides for the Island Princess variety to be regulated at the H 
maturity guide; the Bev's Red variety to be regulated at the I maturity 
guide; and the Prima Peach IV, Spring Gem, Sweet Amber, and Zee Diamond 
varieties to be regulated at the J maturity guide.
    The NAC also recommended adding the Burpeachtwo (Henry II [reg]) 
variety to the table for regulation at the J maturity guide, but that 
variety had already been added to the table for regulation at the J 
maturity guide in 2004 (7 July 2004, 69 FR 41120). Therefore, only six 
varieties are being added at this time. Table 1 of paragraph (a)(1)(iv) 
of Sec.  917.459 will be revised to reflect these recommendations.
    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 authority (in Sec. Sec.  916.52 and 917.41) 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

[[Page 16385]]

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 2004 season. 
This rule also removes the variety-specific minimum size requirements 
for fifteen varieties of nectarines whose shipments fell below 5,000 
containers during the 2004 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the La Pinta variety of 
nectarines, recommended for regulation at a minimum size 80. Studies of 
the size ranges attained by the La Pinta variety revealed that 100 
percent of the containers met the minimum size of 80 during the 2001, 
2002, and 2003 seasons. Sizes ranged from size 30 to size 80, with 4.9 
percent of the fruit in the 30 sizes, 34.3 percent of the packages in 
the 40 sizes, 41.1 percent in the 50 sizes, 19.5 percent in the 60 
sizes, 0.2 percent in the 70 sizes and 0 percent in the size 80, for 
the 2003 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 La Pinta 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 La Pinta variety 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)(3) of Sec.  916.356 is revised 
to include the Red Jewel and Zee Fire varieties; the introductory text 
of paragraph (a)(4) of Sec.  916.356 is revised to include the Diamond 
Pearl and Kay Fire varieties; and the introductory text of paragraph 
(a)(6) of Sec.  916.356 is revised to include the Burnectfour (Summer 
Flare [reg] 35), Burnectseven (Summer Flare [reg] 28), Honey Dew, La 
Pinta and Mike's Red nectarine varieties.
    This rule also revises the introductory text of paragraphs (a)(3), 
(a)(4), (a)(5) and (a)(6) of Sec.  916.356 to remove fifteen 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 2004 season. Specifically, the 
introductory text of paragraph (a)(3) of Sec.  916.356 is revised to 
remove the May Kist nectarine variety; the introductory text of 
paragraph (a)(4) of Sec.  916.356 is revised to remove the Sparkling 
May and White Sun nectarine varieties; the introductory text of 
paragraph (a)(5) is revised to remove the Red May nectarine variety; 
and the introductory text of paragraph (a)(6) of Sec.  916.356 is 
revised to remove the Candy Sweet, Flame Glo, Grand Diamond, June Lion, 
King Jim, Ruby Bright, Scarlet Red, Summer Jewel, Sunny Red, Sweet 
White and White September 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 thirteen peach varieties that were produced in commercially 
significant quantities of more than 10,000 containers for the first 
time during the 2004 season. This rule also removes the variety-
specific minimum size requirements for ten varieties of peaches whose 
shipments fell below 5,000 containers during the 2004 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Ivory Queen variety 
of peaches, which was recommended for regulation at a minimum size 80. 
Studies of the size ranges attained by the Ivory Queen variety revealed 
that 100 percent of the containers met the minimum size of 80 during 
the 2002 and 2003 seasons. The sizes ranged from size 30 to size 80, 
with 0.3 percent of the containers meeting the size 30, 36.1 percent 
meeting the size 40, 47.7 percent meeting the size 50, 13.1 percent 
meeting the size 60, 2.2 percent meeting the size 70 and 0.5 percent 
meeting the size 80 in the 2003 season.
    A review of other varieties with the same harvesting period 
indicated that the Ivory Queen 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 Ivory Queen variety in the variety-specific 
minimum size regulation at a minimum size 80 is appropriate. Although 
most other size recommendations for peaches result from size studies 
conducted over a three-year period, data on the Ivory Queen variety for 
earlier years is not available because the plantings of this variety 
did not bear fruit before 2002. Unusually large plantings of the Ivory 
Queen variety led to the rapid production of over 10,000 containers in 
just two years, and indicated inclusion in the variety-specific minimum 
size requirements.
    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 April Snow and Sugar Snow peach varieties; the 
introductory text of paragraph (a)(5) of Sec.  917.459 is revised to 
include the Ivory Queen peach variety; and the introductory text of 
paragraph (a)(6) of Sec.  917.459 is revised to include the Autumn 
Rich, Cherry Red, Crimson Queen, Early O'Henry, Henry III, Henry IV, 
Last Tango, Ruby Queen, Sierra Rich and 244LE379 peach varieties.
    This rule also revises the introductory text of paragraph (a)(5) of 
Sec.  917.459 to remove the Redtop, Sugar May and 172LE White Peach 
(Crimson Snow/Sunny Snow) peach varieties; and revises the introductory 
paragraph (a)(6)

[[Page 16386]]

of Sec.  917.459 to remove the Autumn Fire, Fairtime, June Pride, Late 
September Snow, Queen Lady, Ruby Gold and Sugar Red 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 2004 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) 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.

Weight-Count Standards

    Under the provisions of Sec. Sec.  916.52 and 917.41 of the orders, 
the NAC and PCC, respectively, are also authorized to establish weight-
count standards for packed containers of fruit. These standards define 
a maximum number of peaches in a 16-pound sample when such fruit, which 
may be packed in tray-packed containers, is converted to volume-filled 
containers. In Sec. Sec.  916.350 and 917.442 of the orders' rules and 
regulations, weight-count standards are established for all varieties 
of nectarines and peaches (except the Peento type peaches), in TABLES 1 
and 2 of paragraph (a)(5)(iv).
    Weight-count standards differ for fruit packed early in the season 
and that packed later. Earlier fruit tends to be less dense than later 
fruit. While the earlier fruit sizes are adequate to fill the tray 
cavities in tray-packed containers, more pieces of fruit are required 
to meet the 16-pound sample standard for volume-filled fruit. The NAC 
and PCC routinely conduct tests to determine the optimum weight-count 
standards for early, mid-season and late-season fruit. Occasionally, 
adjustments are made to the weight-count standards to ensure 
equivalence between the pack styles and permit handlers to more easily 
convert tray-packed fruit to volume-filled containers.
    Weight-count standards have also differed between nectarine and 
peaches historically because of the difference in shape between the two 
commodities. However, continued breeding of the two fruits has resulted 
in more uniformity of shape and size between the two. In response to 
consumer needs, handlers have sought a more generic sizing system to 
apply to both nectarines and peaches.
    Finally, the industry has recently adopted a new packing container 
with dimensions different from those previously used. Conforming 
changes to the trays used to pack the fruit into the new containers 
resulted in reductions in cavity sizes in some cases to accommodate the 
same fruit counts as in the old containers. This led to a wider 
discrepancy between the sizes of fruit packed in both pack styles 
throughout the season.
    In an effort to provide a more generic sizing of the two 
commodities, to smooth the transition from early-season to mid-season 
and late-season fruit sizes, and to standardize the conversion from 
tray-packing to volume-filling fruit, the committees' staff conducted 
weight-count surveys during the 2004 packing season. With the data 
collected, they were able to determine the most optimum weight-counts 
for containers of volume-filled nectarines and peaches of various fruit 
sizes throughout the season, given the new containers and trays. The 
committees' staff prepared new weight-count tables, which were reviewed 
by the Size Nomenclature Review Group at their meetings on September 3 
and September 21, 2004, and by the Tree Fruit Quality Subcommittee at 
their meetings on September 13, November 9, and November 30, 2004. At 
their meetings on December 7, 2004, both the NAC and PCC unanimously 
recommended revision of the weight-count standards tables in the 
orders' rules and regulations to reflect the staff's findings.
    Nectarines: This rule revises Tables 1 and 2 of paragraph 
(a)(5)(iv) of Sec.  916.350. Such revisions require conforming 
modifications to the text of Sec.  916.356, paragraphs (a)(4)(ii), 
(a)(6)(ii), (a)(8)(ii), and (a)(9)(ii) by increasing the maximum number 
of nectarines in a 16-pound sample for the sizes regulated in those 
paragraphs.
    Peaches: Similarly, this rule revises Tables 1 and 2 of paragraph 
(a)(5)(iv) of Sec.  917.442 to reflect the staff's study findings. 
Additionally, two new weight-count standards for peaches are added to 
the tables. These two new standards are for large sizes previously 
without weight-count assignments, and were determined from the data 
collected.
    Such revisions require conforming modifications to the text of 
Sec.  917.459, paragraph (a)(5)(iii), increasing the maximum number of 
peaches in a 16-pound sample for the size regulated in that paragraph.
    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. The changes: (1) Revise varietal maturity, 
quality, and size requirements to better reflect current industry 
practices; (2) authorize continued shipments of ``CA Utility'' quality 
fruit during the 2005 season; and (3) adjust weight-count standards for 
fruit packed in volume-filled containers. This rule will also help the 
California nectarine and peach industries to provide fruit desired by 
consumers. This rule was unanimously recommended by the committees at 
their meetings on December 7, 2004, and is designed to establish and 
maintain orderly marketing conditions for these fruits 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 207 California nectarine and peach handlers 
subject to regulation under the orders covering nectarines and peaches 
grown in California, and about 1,500 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

[[Page 16387]]

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 fewer than 26 
handlers in the industry who could be defined as other than small 
entities. For the 2004 season, the committees' staff estimated that the 
average handler price received was $8.00 per container or container 
equivalent of nectarines or peaches. A handler would have to ship at 
least 625,000 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 2004 season, the committees' staff 
estimates that small handlers represent approximately 87 percent of all 
the handlers within the industry.
    The committees' staff has also estimated that fewer than 20 percent 
of the producers in the industry could be defined as other than small 
entities. For the 2004 season, the committees estimated the average 
producer price received was $5.00 per container or container equivalent 
for nectarines and peaches. A producer would have to produce at least 
150,000 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 2004 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 $5.00 per container or container 
equivalent, and a combined packout of nectarines and peaches of 
approximately 40,422,900 containers, the value of the 2004 packout is 
estimated to be $202,114,500. Dividing this total estimated grower 
revenue figure by the estimated number of producers (1,500) yields an 
estimate of average revenue per producer of about $134,743 from the 
sales of peaches and nectarines.

Regulatory Revisions

    Under Sec. Sec.  916.52 and 917.41 of the orders, grade, size, 
maturity, container 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 December 7, 2004, and unanimously recommended that these handling 
requirements be revised for the 2005 season. These recommendations had 
been presented to the committees by various subcommittees, each charged 
with review and discussion of the changes. The changes: (1) Authorize 
shipments of ``CA Utility'' quality fruit to continue during the 2005 
season; (2) adjust weight-count standards for fruit in volume filled 
containers; and (3) revise varietal maturity, quality, and size 
requirements to reflect changes in production and marketing practices.

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 2005 season.
    The Tree Fruit Quality Subcommittee met on November 30, 2004, and 
unanimously agreed that the ``CA Utility'' quality requirements that 
are currently in place should be continued. The NAC and PCC also 
unanimously recommended such continuation at their meetings on December 
7, 2004, and have done so continuously since such shipments were first 
authorized in 1996.

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 rules and 
regulations, and in Sec.  917.459 of the peach order's rules 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 2005 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 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.

Weight-Count Standards--Discussions and Alternatives

    Sections 916.350 and 917.442 also establish weight-count standards 
for fruit packed in volume-filled containers. These standards define a 
maximum number of peaches in a 16-pound sample when such fruit, which 
may be packed in tray-packed containers, is converted to volume-filled 
containers.
    Industry-wide adoption of a new container led to the 
reconfiguration of the trays commonly used in packing tray-packed 
containers. Some of the tray cavity sizes were modified to conform to 
the dimensions of the new container. These modifications resulted in 
slightly smaller fruit being packed into some sizes, which led to an 
unacceptable discrepancy between the sizes of fruit packed in volume-
filled containers and that in tray-packed containers.
    Additionally, the difference in density between early-season and 
mid-season to late-season fruit causes an abrupt change in sizes during 
the seasonal transition. Handlers have reported that marketing through 
that period is difficult because of the discrepancy between sizes of 
earlier fruit and later fruit, and have sought a modified sizing method 
that would smooth that transition.

[[Page 16388]]

    Finally, continuous breeding has led to an increasing similarity of 
fruit shapes between nectarines and peaches. The committees desire to 
develop a more uniform sizing system.
    The Size Nomenclature Review Group met several times during 2003 
and 2004 to discuss revision of the weight-count standards. Although 
the group considered the transition to a per pound sizing system 
similar to that used by the plum industry, they felt that the nectarine 
and peach industries would be better served by adjusting the weight-
count standards already in place. The Size Nomenclature Review Group 
also believed that they could recommend modifications to the standards 
that would smooth the marketing transition between varieties packed in 
the early season and those packed in the mid-season to late-season.
    The committee staff was directed to collect data during the 2004 
season from which revision recommendations could be made. Extensive 
sampling of both nectarines and peaches of various sizes provided the 
information needed for the committee to make recommendations regarding 
revisions to the weight-count standards. The Tree Fruit Quality 
Subcommittee voted unanimously to recommend the adjustments to the NAC 
and PCC at their meeting on November 9, 2004. The NAC and PCC 
unanimously recommended the changes to the regulations at their meeting 
on December 7, 2004.
    The committees discussed various alternatives to this action, 
including leaving the weight-count standards unchanged or adopting a 
per-pound fruit sizing system similar to that used in the plum 
industry. However, the committees believe that failure to make changes 
would not take into account differences between the various pack 
styles. Also, the data collected did not support adoption of a per-
pound fruit sizing system at this time. The committees believe that the 
recommended changes to the weight-count standards will provide for 
better uniformity of sizes between fruit packed in volume-filled 
containers and fruit packed in tray-packed containers, will smooth the 
transition from early-season to mid-season and late-season fruit for 
marketers, and will more closely align fruit sizes between nectarines 
and peaches.
    The committees make recommendations regarding the revisions in 
handling 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 
Size Nomenclature Review Group, 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, and are also available on the committees' 
website, thereby increasing the availability of information within the 
industry.
    Each of the recommended handling requirement changes for the 2005 
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 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, winter and 
spring. Like all committee meetings, the December 7, 2004, 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 
August 26, September 13, November 9 and November 30, 2004. 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.

[[Page 16389]]

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:

PART 916--NECTARINES GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR parts 916 and 917 continues to read 
as follows:

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


0
2. Section 916.350 is amended by:
0
A. Revising Tables 1 and 2 in paragraph (a)(5)(iv); and
0
B. Revising paragraph (d) to read as follows:


Sec.  916.350  California nectarine container and pack regulation.

    (a) * * *
    (5) * * *
    (iv) * * *

 Table 1.--Weight Count Standards for All Varieties of Nectarines Packed
               in Loose-Filled or Tight-Filled Containers
------------------------------------------------------------------------
                                                            Column B--
                                                          Maximum number
                                                           of nectarines
                                                           in a 16-pound
                                                              sample
                                                           applicable to
                                                             varieties
                                                           specified in
         Column A--  Tray pack size designation             paragraphs
                                                            (a)(2)(ii),
                                                            (a)(3)(ii),
                                                            (a)(4)(ii),
                                                            (a)(5)(ii),
                                                            (a)(7)(ii),
                                                          and (a)(8)(ii)
                                                              of Sec.
                                                              916.356
------------------------------------------------------------------------
108.....................................................             100
96......................................................              90
88......................................................              84
84......................................................              78
80......................................................              75
72......................................................              68
70......................................................              63
64......................................................              57
60......................................................              53
56......................................................              48
54......................................................              45
50......................................................              42
48......................................................              41
44......................................................              36
42......................................................              34
40......................................................              32
36......................................................              29
34......................................................              27
32......................................................              25
30......................................................              23
------------------------------------------------------------------------


 Table 2.--Weight-Count Standards for All Varieties of Nectarines Packed
               in Loose-Filled or Tight-Filled Containers
------------------------------------------------------------------------
                                                            Column B--
                                                          Maximum Number
                                                           of nectarines
                                                           in a 16-pound
                                                              sample
                                                           applicable to
         Column A--  Tray pack size designation              varieties
                                                           specified in
                                                            paragraphs
                                                          (a)(6)(ii) and
                                                           (a)(9)(ii) of
                                                          Sec.   916.356
------------------------------------------------------------------------
108.....................................................              92
96......................................................              87
88......................................................              80
84......................................................              76
80......................................................              72
72......................................................              65
70......................................................              62
64......................................................              56
60......................................................              53
56......................................................              47
54......................................................              45
50......................................................              42
48......................................................              41
44......................................................              36
42......................................................              34
40......................................................              32
36......................................................              29
34......................................................              27
32......................................................              25
30......................................................              23
------------------------------------------------------------------------

* * * * *
    (d) During the period April 1 through October 31, 2005, 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
3. Section 916.356 is amended by:
0
A. Revising the introductory text of paragraph (a)(1);
0
B. Revising Table 1; and
0
C. Revising the introductory text of paragraphs (a)(3), (a)(4), (a)(5), 
and (a)(6); and
0
D. Revising paragraphs (a)(4)(ii), (a)(6)(ii), (a)(8)(ii), and 
(a)(9)(ii) 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 1 through October 31, 2005, 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) * * *

[[Page 16390]]



                                 Table 1
------------------------------------------------------------------------
              Column A variety                 Column B  maturity guide
------------------------------------------------------------------------
Alshir Red.................................  J
Alta Red...................................  J
April Glo..................................  H
August Fire................................  L
August Glo.................................  L
August Lion................................  J
August Red.................................  J
Aurelio Grand..............................  F
Autumn Delight.............................  L
Big Jim....................................  J
Candy Gold.................................  L
Crimson Baby...............................  G
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 Candy................................  J
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
Kay Glo....................................  J
Kay Sweet..................................  J
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
Prince Jim I...............................  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
Red Roy....................................  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
Shay Sweet.................................  J
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
Sugar Queen................................  L
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
------------------------------------------------------------------------

* * * * *
    (3) Any package or container of Mayglo variety of nectarines on or 
after May 6 of each year, or Crimson Baby, Earliglo, Early Diamond, Red 
Jewel or Zee Fire variety nectarines unless:
* * * * *
    (4) Any package or container of Arctic Rose, Arctic Star, Diamond 
Bright, Diamond Pearl, Juneglo, June Pearl, Kay Fire, 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, Spring Ray, or Zee Grand variety nectarines unless:
    (i) * * *
    (ii) Such nectarines, when packed other than as specified in 
paragraph (a)(4)(i) of this section, are of a size that a 16-pound 
sample, representative of the nectarines in the package or container, 
contains not more than 84 nectarines.
    (5) Any package or container of Mango 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, Burnectfour (Summer Flare[supreg] 35), 
Burnectseven (Summer Flare[supreg] 28), Candy Gold, Diamond Ray, Early 
Red Jim, Emelia, Fire Pearl, Fire Sweet, Flaming Red, Grand Pearl, 
Grand Sweet, Honey Blaze, Honey Dew, Honey Fire, Honey Kist, Honey 
Royale, July Pearl, July Red, Kay Pearl, La Pinta, Late Red Jim, Mike's 
Red, 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 Diamond, Ruby 
Pearl, Ruby Sweet, 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 Lion, Summer Red, Sunburst, Sun Valley Sweet, Terra 
White, or Zee Glo variety nectarines unless:
    (i) * * *
    (ii) Such nectarines, when packed other than as specified in 
paragraph (a)(6)(i) of this section, are of a size that a 16-pound 
sample, representative of the nectarines in the package or container, 
contains not more than 72 nectarines or if the nectarines are ``well 
matured'' not more than 76 nectarines.
* * * * *
    (8) * * *
    (i) * * *
    (ii) Such nectarines, when packed other than as specified in 
paragraph (a)(8)(i) of this section, are of a size that a 16-pound 
sample, representative of the nectarines in the package or container, 
contains not more than 84 nectarines.
    (9) * * *
    (i) * * *
    (ii) Such nectarines, when packed other than as specified in 
paragraph (a)(9)(i) of this section, are of a size that a 16-pound 
sample, representative of the nectarines in the package or container, 
contains not more than 72 nectarines or if the nectarines are ``well 
matured'' not more than 76 nectarines.
* * * * *

[[Page 16391]]

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

0
4. Section 917.442 is amended by:
0
A. Revising Tables 1 and 2 of paragraph (a)(5)(iv) and
0
B. Revising paragraph (d) to read as follows:


Sec.  917.442  California peach container and pack regulation.

    (a) * * *
    (5) * * *
    (iv) * * *

  Table 1.--Weight-Count Standards for All Varieties of Peaches (Except
 Peento Type Peaches) Packed in Loose-Filled or Tight-Filled Containers
------------------------------------------------------------------------
                                                            Column B--
                                                          Maximum number
                                                           of peaches in
                                                            a 16-pound
                                                              sample
                                                           applicable to
                                                             varieties
         Column A--  Tray pack size designation            specified in
                                                            paragraphs
                                                            (a)(2)(ii),
                                                            (a)(3)(ii),
                                                            (a)(4)(ii),
                                                            (a)(5)(ii),
                                                           and (b)(3) of
                                                          Sec.   917.459
------------------------------------------------------------------------
96......................................................              96
88......................................................              92
84......................................................              83
80......................................................              77
72......................................................              69
70......................................................              65
64......................................................              58
60......................................................              53
56......................................................              48
54......................................................              46
50......................................................              43
48......................................................              41
44......................................................              37
42......................................................              34
40......................................................              32
36......................................................              29
34......................................................              28
32......................................................              25
30......................................................              23
28......................................................              21
26......................................................              20
------------------------------------------------------------------------


  Table 2.--Weight-Count Standards for All Varieties of Peaches (Except
 Peento Type Peaches) Packed in Loose-Filled or Tight Filled Containers
------------------------------------------------------------------------
                                                            Column B--
                                                          Maximum number
                                                           of peaches in
                                                            a 16-pound
                                                              sample
                                                           applicable to
         Column A--  Tray pack size designation              varieties
                                                           specified in
                                                            paragraphs
                                                          (a)(6)(ii) and
                                                          (c)(3) of Sec.
                                                               917.459
------------------------------------------------------------------------
96......................................................              96
88......................................................              83
84......................................................              79
80......................................................              73
72......................................................              66
70......................................................              62
64......................................................              56
60......................................................              52
56......................................................              47
54......................................................              46
50......................................................              42
48......................................................              41
44......................................................              37
42......................................................              34
40......................................................              32
36......................................................              29
34......................................................              28
32......................................................              25
30......................................................              23
28......................................................              21
26......................................................              20
------------------------------------------------------------------------

* * * * *
    (d) During the period April 1 through November 23, 2005, 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
5. Section 917.459 is amended by:
0
A. Revising the introductory text of paragraph (a)(1);
0
B. Revising Table 1;
0
C. Revising the introductory text of paragraphs (a)(2), (a)(5), and 
(a)(6); and
0
D. Revising paragraphs (a)(5)(iii) and (a)(6)(iii) 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, 2005, 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 A Variety                 Column B Maturity guide
------------------------------------------------------------------------
Angelus....................................  I
August Lady................................  L
Autumn Flame...............................  J
Autumn Gem.................................  I
Autumn Lady................................  H
Autumn Red.................................  J
Autumn Rose................................  H
Bev's Red..................................  I
Blum's Beauty..............................  G
Brittney Lane..............................  J
Burpeachone (Spring Flame [supreg] 21).....  J
Burpeachthree (September Flame [supreg])...  I
Burpeachtwo (Henry II [supreg])............  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

[[Page 16392]]

 
Flavorcrest................................  G
Flavor Queen...............................  H
Flavor Red.................................  G
Franciscan.................................  G
Goldcrest..................................  H
Golden Princess............................  L
Honey Red..................................  G
Island Princess............................  H
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
Prima Gattie 10............................  J
Prima Peach IV.............................  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 Gem.................................  J
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 Amber................................  J
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 Diamond................................  J
Zee Lady...................................  L
------------------------------------------------------------------------

* * * * *
    (2) Any package or container of April Snow, Earlitreat, Sugar Snow, 
or Supeachsix (91002) variety peaches unless:
* * * * *
    (5) Any package or container of Babcock, Bev's Red, Brittney Lane, 
Burpeachone (Spring Flame [reg] 21), Burpeachfourteen (Spring Flame 
[reg] 20), Crimson Lady, Crown Princess, David Sun, Early May Crest, 
Flavorcrest, Ivory Queen, June Lady, Magenta Queen, May Crest, May Sun, 
May Sweet, Prima Peach IV, Queencrest, Rich May, Scarlet Queen, Snow 
Brite, Snow Prince, Springcrest, Spring Lady, Spring Snow, Springtreat 
(60EF32), Sugar Time (214LC68), Sunlit Snow (172LE81), Supecheight, 
Sweet Scarlet, Zee Diamond, or 012-094 variety peaches unless:
* * * * *
    (iii) Such peaches in any container when packed other than as 
specified in paragraph (a)(5)(i) and (ii) of this section are of a size 
that a 16-pound sample, representative of the peaches in the package or 
container, contains not more than 77 peaches except for Peento type 
peaches.
    (6) Any package or container of August Lady, Autumn Flame, Autumn 
Red, Autumn Rich, Autumn Rose, Autumn Ruby, Autumn Snow, Burpeachtwo 
(Henry II [reg]), Burpeachthree (September Flame [reg]), Burpeachfour 
(August Fame [reg]), Burpeachfive (July Flame [reg]), Burpeachsix (June 
Flame [reg]), Burpeachseven (Summer Flame [reg] 29), Cherry Red, Coral 
Princess, Country Sweet, Crimson Queen, Diamond Princess, Earlirich, 
Early Elegant Lady, Early O'Henry, Elegant Lady, Fancy Lady, Fay 
Elberta, Full Moon, Gypsy Red, Henry III, Henry IV, Ice Princess, Ivory 
Princess, Jillie White, Joanna Sweet, John Henry, Jupiter, Kaweah, 
Klondike, Last Tango, Late Ito Red, 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, Red 
Giant, Rich Lady, Royal Lady, Ruby Queen, Ryan Sun, Saturn (Donut), 
Scarlet Snow, September Snow, September Sun, Sierra Gem, Sierra Rich, 
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, 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, 24-SB, or 
244LE379 variety peaches unless:
* * * * *
    (iii) Such peaches in any container when packed other than as 
specified in paragraphs (a)(6)(i) and (ii) of this section are of a 
size that a 16-pound sample, representative of the peaches in the 
package or container, contains not more than 66 peaches, or if the 
peaches are ``well matured,'' not more than 73 peaches, except for 
Peento type peaches.
* * * * *

    Dated: March 28, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-6418 Filed 3-29-05; 9:00 am]
BILLING CODE 3410-02-P