[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7778-7782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3585]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Doc. No. AMS-FV-08-0108; FV09-916/917-1 IFR]


Nectarines and Peaches Grown in California; Changes in 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 changes the handling requirements applicable to well 
matured fruit covered under the nectarine and peach marketing orders 
(orders). The 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 
updates the variety-specific size requirements to reflect changes in 
commercially significant varieties. This 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 February 21, 2009; comments received by April 21, 2009 
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, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or Internet: 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.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Jennifer Garcia, Marketing Specialist, 
or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906; or E-mail: 
[email protected] or [email protected].
    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 Order 
Nos. 916 and 917, both as amended (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.
    This rule changes the handling requirements applicable to well 
matured fruit covered under the nectarine and peach orders. This rule 
updates the variety-specific size requirements to reflect changes in 
commercially significant varieties. These changes 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.
    Sections 916.52 and 917.41 of the orders provide authority for 
handling regulations for fresh California nectarines and peaches. The 
regulations may include grade, size, maturity, quality, pack, and 
container requirements. The orders also provide that whenever such 
requirements are in effect, the fruit subject to such regulation must 
be inspected by the Federal or Federal-State Inspection Service 
(Inspection Service) and

[[Page 7779]]

certified as meeting the applicable requirements.
    The nectarine order has been in effect since 1939, and the peach 
program has been in effect since 1958. The orders have been used over 
the years to establish a quality control program that includes minimum 
grades, sizes, and maturity standards. That program has helped improve 
the quality of product moving from the farm to market, and has helped 
growers and handlers more effectively market their crops. Additionally, 
the orders have been used to ensure that only satisfactory quality 
nectarines and peaches reach the consumer. This has helped increase and 
maintain market demand over the years.
    Sections 916.53 and 917.42 authorize the modification, suspension, 
or termination of regulations issued under Sec. Sec.  916.52 and 
917.41, respectively. Changes in regulations have been implemented to 
reflect changes in industry operating practices and to solve marketing 
problems as they arise. The committees meet whenever needed, but at 
least annually, to discuss the orders and the various regulations in 
effect and to determine if, or what, changes may be necessary to 
reflect industry needs. As a result, regulatory changes have been made 
numerous times over the years to address industry changes and to 
improve program operations.
    Currently, handling requirements are in effect for nectarines and 
peaches packed in containers marked ``CA WELL MAT'' or ``California 
Well Matured.'' The term ``well matured'' is defined in the orders' 
rules and regulations, and has been used for many years by the industry 
to describe a level of maturity higher than the definition of 
``mature'' in the United States Standards for Grades of Nectarines (7 
CFR 51.3145 through 51.3160) and United States Standards for Grades of 
Peaches (7 CFR 51.1210 through 51.1223). Other handling requirements 
were suspended in 2007 to reduce handler inspection costs.
    The committees met on November 25, 2008, and unanimously 
recommended that the handling requirements be revised for the 2009 
season, which is expected to begin in April. 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.
    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 the size and 
maturity of the fruit. Acceptable fruit size provides greater consumer 
satisfaction and promotes repeat purchases, thereby increasing returns 
to producers and handlers. In addition, increased fruit size results in 
increased numbers of packed containers of nectarines and peaches per 
acre, which is 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 committees 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 paragraphs (a)(3), (a)(4), and 
(a)(6) of Sec.  916.356 to establish variety-specific minimum size 
requirements for 10 varieties of nectarines that were produced in 
commercially significant quantities of more than 10,000 containers for 
the first time during the 2008 season. This rule also removes the 
variety-specific minimum size requirements for four varieties of 
nectarines whose shipments fell below 5,000 containers during the 2008 
season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Honey Rose variety of 
nectarines, recommended for regulation at a minimum size 84. A minimum 
size of 84 means that a packed standard lug box will contain not more 
than 84 nectarines. Studies of the size ranges attained by the Honey 
Rose variety revealed that 99.9 percent of the containers met the 
minimum size of 84 during the 2007 and 2008 seasons. Sizes ranged from 
size 30 to size 84, with 13.3 percent of the containers meeting the 
size 30, 17.9 percent meeting the size 40, 38.6 percent meeting the 
size 50, 25.1 percent meeting the size 60, 4.2 percent meeting the size 
70, and 0.8 percent meeting the size 80 in the 2008 season.
    A review of other varieties with the same harvesting period 
indicated that the Honey Rose 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 Honey Rose variety in the variety-specific minimum size 
regulation at a minimum size 84 is appropriate. This recommendation 
results from size studies conducted over a two-year period.
    Historical data such as this provides the committee 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 committee and subcommittee 
meetings when the staff receives such comments, either in writing or 
verbally.
    For reasons similar to those discussed in the preceding paragraph, 
paragraph(a)(3) of Sec.  916.356 is revised to include the Honey May 
and May Pearl(tm) nectarine varieties and paragraph (a)(6) of Sec.  
916.356 is revised to include the 15G225, Autumn Fire, Honey Rose, 
Neptune, Orange Honey, Red Bright, Ruby Bright, and Signature nectarine 
varieties.
    This rule also revises paragraph (a)(4) of Sec.  916.356 to remove 
the White Sun nectarine variety and paragraph (a)(6) of Sec.  916.356 
to remove the Arctic Gold, Flaming Red, and Prima Diamond VII nectarine 
varieties from the variety-specific minimum size requirements because 
fewer than 5,000 containers of each of these varieties were produced 
during the 2008 season. 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 
paragraphs (a)(2), (a)(3), (a)(5), and (a)(6) of Sec.  917.459 to 
establish variety-specific minimum size requirements for seven peach 
varieties that were produced in commercially significant quantities of 
more than 10,000 containers for the first time during the 2008 season. 
This rule also removes the variety-specific minimum size requirements 
for five varieties of peaches whose shipments fell below 5,000 
containers during the 2008 season.
    For example, one of the varieties recommended for addition to the 
variety-specific minimum size requirements is the Spring Princess 
variety of peaches, which was

[[Page 7780]]

recommended for regulation at a minimum size 88. A minimum size of 88 
means that a packed standard lug box contains not more than 88 peaches. 
Studies of the size ranges attained by the Spring Princess variety 
revealed that 100 percent of the containers met the minimum size of 96 
during the 2007 and 2008 seasons. Sizes ranged from size 30 to size 80, 
with 4.7 percent of the containers meeting the size 30, 60.9 percent 
meeting the size 40, 16 percent meeting the size 50, 16.1 percent 
meeting the size 60, 2.1 percent meeting the size 70, and 0.2 percent 
meeting the size 80 in the 2008 season.
    A review of other varieties with the same harvesting period 
indicated that the Spring Princess 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 Spring Princess variety in the variety-
specific minimum size regulation at a minimum size 88 is appropriate.
    Historical data such as this provides the committee 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 committee meetings when the staff receives such 
comments, either in writing or verbally.
    For reasons similar to those discussed in the preceding paragraph, 
paragraph (a)(3) of Sec.  917.459 is revised to include the Spring 
Princess peach variety and paragraph (a)(6) of Sec.  917.459 is revised 
to include the August Saturn, Autumn Jewel, Autumn Sun, Diamond Candy, 
Jasper Gem, and September Lady peach varieties.
    This rule also revises paragraph (a)(2) of Sec.  917.459 to remove 
the Supechsix peach variety; paragraph (a)(5) of Sec.  917.459 to 
remove the Crimson Queen peach variety; and paragraph (a)(6) of Sec.  
917.459 to remove the Burpeachsixteen, Jasper Flame, and Princess Gayle 
peach varieties from the variety-specific minimum size requirements 
because less than 5,000 containers of each of these varieties was 
produced during the 2008 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.
    This rule also removes obsolete language from paragraph 6(iii) in 
Sec.  917.459. That paragraph states that containers of peaches not 
mentioned in paragraphs (a)(6)(i) or (a)(6)(ii) of Sec.  917.459 must 
contain not more than 66 peaches in a 16-pound sample or not more than 
73 peaches if they are ``well matured.'' Currently only ``well 
matured'' fruit is regulated. The reference to ``not more than 66 
peaches, or if the peaches are well matured'' was removed in 2007 (72 
FR 18847). The language should be omitted from Sec.  917.459.
    The committees recommended these changes in the minimum size 
requirements based on a continuing review of the sizing and maturity 
relationships for these nectarine and peach varieties, and the consumer 
acceptance levels for various fruit sizes. This rule is designed to 
establish minimum size requirements for fresh nectarines and peaches 
consistent with expected crop and market conditions. This should help 
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) (5 U.S.C. 601-612), 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.

Industry Information

    There are approximately 120 California nectarine and peach handlers 
subject to regulation under the orders covering nectarines and peaches 
grown in California, and about 550 producers of these fruits in 
California. Small agricultural service firms, which include handlers, 
are defined by the Small Business Administration (SBA) (13 CFR 121.201) 
as those whose annual receipts are less than $7,000,000. Small 
agricultural producers are defined by the SBA 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 30 
handlers in the industry who would not be considered small entities. 
For the 2008 season, the committees' staff estimated that the average 
handler price received was $9.00 per container or container equivalent 
of nectarines or peaches. A handler would have to ship at least 777,778 
containers to have annual receipts of $7,000,000. Given data on 
shipments maintained by the committees' staff and the average handler 
price received during the 2008 season, the committees' staff estimates 
that small handlers represent approximately 78 percent of all the 
handlers within the industry.
    The committees' staff has also estimated that fewer than 60 
producers in the industry would not be considered small entities. For 
the 2008 season, the committees estimated the average producer price 
received was $4.25 per container or container equivalent for nectarines 
and peaches. A producer would have to produce at least 176,471 
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 2008 season, the committees' 
staff estimates that small producers represent more than 88 percent of 
the producers within the industry.
    With an average producer price of $4.25 per container or container 
equivalent, and a combined packout of nectarines and peaches of 
45,543,561 containers, the value of the 2008 packout is estimated to be 
$193,560,134. Dividing this total estimated grower revenue figure by 
the estimated number of producers (550) yields an estimate of average 
revenue per producer of about $351,928 from the sales of peaches and 
nectarines.
    Under authority provided in Sec. Sec.  916.52 and 917.41 of the 
orders, grade, size, maturity, pack, and container marking requirements 
are established for fresh shipments of California nectarines and 
peaches, respectively. Such requirements are in effect on a continuing 
basis.
    Sections 916.356 and 917.459 of the orders' rules and regulations 
establish minimum sizes for various varieties of nectarines and 
peaches. This rule makes adjustments to the minimum sizes authorized 
for certain varieties of each commodity for the 2009 season. Minimum 
size regulations are put in place to encourage producers to leave fruit 
on the trees for a longer period of time, increasing both maturity and 
fruit size. Increased fruit size increases the number of packed 
containers per acre, and coupled with heightened maturity

[[Page 7781]]

levels, also provides greater consumer satisfaction, which in turn 
fosters repeat purchases that benefit producers and handlers alike.
    Annual adjustments to minimum sizes of nectarines and peaches, such 
as these, are recommended by the committees 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' past 
practices and represent a significant change in the regulations as they 
currently exist. For these reasons, this alternative was not 
recommended.
    The committees make recommendations regarding the revisions in 
handling requirements after considering all available information, 
including comments received by committee staff. At the meetings, the 
impact of and alternatives to these recommendations are deliberated. 
The committees consist of individual producers and handlers with many 
years of experience in the industry who are familiar with industry 
practices and trends. All committee meetings are open to the public and 
comments are widely solicited. In addition, minutes of all 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 this critical information within the industry.
    Regarding the impact of this action on the affected entities, both 
large and small entities are expected to benefit from the changes, and 
the costs of compliance are not expected to be significantly different 
between large and small entities.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large nectarine and peach 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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap, or conflict with this rule.
    Further, the committees' meetings were widely publicized throughout 
the nectarine and peach industry and all interested parties were 
invited to attend the meetings and participate in committee 
deliberations. Like all committee meetings, the November 25, 2008, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on this issue.
    Also, the committees have a number of appointed subcommittees to 
review certain issues and make recommendations to the committees. The 
committees' Tree Fruit Quality Subcommittee met on October 29, 2008, 
and discussed this issue in detail. That meeting was also a public 
meeting and both large and small entities were able to participate and 
express their views. Finally, interested persons are invited to submit 
comments on this interim final rule, including 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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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 timely received will be considered 
prior to finalization of this rule.
    After consideration of all relevant material presented, including 
the committees' recommendation, 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) This rule should be implemented as soon as 
possible, since shipments of California nectarines and peaches are 
expected to begin in early April; (2) the committees met and 
unanimously recommended these changes at public meetings, and 
interested persons had opportunities to provide input at all those 
meetings; and (3) the rule provides a 60-day comment period, and any 
written comments timely received will be considered prior to any 
finalization of this 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 916.356 is amended by revising the introductory text of 
paragraphs (a)(3), (a)(4), and (a)(6) to read as follows:


Sec.  916.356  California nectarine grade and size regulation.

    (a) * * *
    (3) Any package or container of Mayglo variety of nectarines on or 
after May 6 of each year, or Burnectfive (Spring Flare[supreg] 21), 
Burnectten (Spring Flare[supreg] 19), Crimson Baby, Earliglo, Honey 
May, May Pearl TM, Polar Ice, Polar Light, Red Jewel or Zee 
Fire variety nectarines unless:
* * * * *
    (4) Any package or container of Arctic Star, Burnectone (Spring 
Ray[supreg]), Burnecttwelve (Sweet Flair[supreg] 21), Burnectthirteen 
(Snow Flare[supreg] 22), Burnectfourteen (Snow Flare[supreg] 21), 
Diamond Bright, Diamond Pearl, Early Pearl, Gee Sweet, June Pearl, Kay 
Fire, Kay Glo, Kay Sweet, Prima Diamond IV, Prima Diamond VI, Prima 
Diamond XIII, Prince Jim, Prince Jim 1, Red Roy, Rose Bright, Rose 
Diamond, Royal Glo, or Zee Grand variety nectarines unless:
* * * * *
    (6) Any package or container of 15G225, Alta Red, Arctic Belle, 
Arctic Blaze, Arctic Ice, Arctic Jay, Arctic Mist, Arctic Pride, Arctic 
Queen, Arctic Snow (White Jewel), Arctic Sweet, August Bright, August 
Fire, August Glo, August Lion, August Pearl, August Red, August Sweet, 
Autumn Blaze, Autumn Fire, Big Jim, Bright Pearl, Burnectfour (Summer 
Flare[supreg] 35), Burnectseven (Summer Flare[supreg] 28), 
Burnecteleven (Summer

[[Page 7782]]

Flare[supreg] 30), Burnectfifteen (Summer Flare[supreg] 27), 
Burnectseventeen (Summer Flare[supreg] 32), Candy Gold, Candy Pearl, 
Diamond Ray, Early Red Jim, Fire Pearl, Fire Sweet, Giant Pearl, Grand 
Bright, Grand Candy, Grand Pearl, Grand Sweet, Honey Blaze, Honey Dew, 
Honey Diva, Honey Fire, Honey Kist, Honey Rose, Honey Royale, July 
Pearl, July Red, Kay Pearl, La Pinta, La Reina, Larry's Red, Late Red 
Jim, Mike's Red, Neptune, Orange Honey, P-R Red, Prima Diamond IX, 
Prima Diamond X, Prima Diamond XIX, Prima Diamond XXIV, Prima Diamond 
XXVIII, Prince Jim 3, Red Bright, Red Diamond, Red Glen, Red Jim, Red 
Pearl, Regal Pearl, Regal Red, Royal Giant, Ruby Bright, Ruby Diamond, 
Ruby Pearl, Ruby Sweet, Saucer, September Bright (26P-490), September 
Free, September Red, Signature, Sparkling June, Spring Bright, Spring 
Pearl TM, Spring Sweet, Sugar Pearl TM, Sugarine, 
Summer Blush, Summer Bright, Summer Diamond, Summer Fire, Summer Jewel, 
Summer Lion, Summer Red, Sunburst, Sun Valley Sweet, Terra White, Zee 
Glo or Zephyr variety nectarines unless:
* * * * *

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

0
3. Section 917.459 is amended by revising the introductory text of 
paragraphs (a)(2), (a)(3), (a)(5), (a)(6), and by adding paragraph 
(a)(6)(iii) to read as follows:


Sec.  917.459  California peach grade and size regulation.

    (a) * * *
    (2) Any package or container of April Snow, Earlitreat, Snow Angel, 
Supechfifteen, or Super Lady variety peaches unless:
* * * * *
    (3) Any package or container of Island Prince, Snow Kist, Snow 
Peak, Spring Princess, or Super Rich variety peaches unless:
* * * * *
    (5) Any package or container of Babcock, Bev's Red, Bright 
Princess, Brittney Lane, Burpeachone (Spring Flame[supreg] 21), 
Burpeachfourteen (Spring Flame[supreg] 20), Burpeachnineteen (Spring 
Flame[supreg] 22), Candy Red, Crimson Lady, Crown Princess, David Sun, 
Early May Crest, Flavorcrest, Honey Sweet, Ivory Queen, June Lady, 
Magenta Queen, May Crest, May Sweet, Prima Peach IV, Queencrest, Rich 
May, Sauzee Queen, Scarlet Queen, Sierra Snow, Snow Brite, Springcrest, 
Spring Lady, Spring Snow, Springtreat (60EF32), Sugar Time (214LC68), 
Supecheight (012-094), Supechnine, Sweet Scarlet, Sweet Crest or Zee 
Diamond variety peaches unless:
* * * * *
    (6) Any package or container of August Lady, August Saturn, Autumn 
Flame, Autumn Jewel, Autumn Red, Autumn Rich, Autumn Rose, Autumn Snow, 
Autumn Sun, Burpeachtwo (Henry II[supreg] ), Burpeachthree (September 
Flame[supreg] ), Burpeachfour (August Flame[supreg] ), Burpeachfive 
(July Flame[supreg] ), Burpeachsix (June Flame[supreg] ), Burpeachseven 
(Summer Flame[supreg] 29), Burpeachfifteen (Summer Flame[supreg] 34), 
Burpeachtwenty (Summer Flame[supreg] ), Burpeachtwentyone (Summer 
Flame[supreg] 26), Candy Princess, Coral Princess, Country Sweet, 
Diamond Candy, Diamond Princess, Earlirich, Early Elegant Lady, Elegant 
Lady, Fancy Lady, Fay Elberta, Full Moon, Galaxy, Glacier White, Henry 
III, Henry IV, Ice Princess, Ivory Princess, Jasper Gem, Jasper 
Treasure, Jillie White, Joanna Sweet, John Henry, Kaweah, Klondike, 
Last Tango, Natures 10, O'Henry, Peach-N-Cream, Pink Giant, 
Pink Moon, Prima Gattie 8, Prima Peach 13, Prima Peach XV, Prima Peach 
20, Prima Peach 23, Prima Peach XXVII, Queen Jewel, Rich Lady, Royal 
Lady, Ruby Queen, Ryan Sun, Saturn (Donut), September Blaze, September 
Lady, September Snow, September Sun, Sierra Gem, Sierra Rich, Snow 
Beauty, Snow Blaze, Snow Fall, Snow Gem, Snow Giant, Snow Jewel, Snow 
King, Snow Magic, Snow Princess, Sprague Last Chance, Spring Candy, 
Strawberry, Sugar Crisp, Sugar Giant, Sugar Lady, Summer Dragon, Summer 
Fling, Summer Lady, Summer Sweet, Summer Zee, Sweet Blaze, Sweet Dream, 
Sweet Henry, Sweet Kay, Sweet September, Tra Zee, Valley Sweet, Vista, 
White Lady, or Zee Lady 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 73 peaches, except for 
Peento type peaches.
* * * * *

    Dated: February 13, 2009.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. E9-3585 Filed 2-19-09; 8:45 am]
BILLING CODE 3410-02-P