[Federal Register Volume 88, Number 195 (Wednesday, October 11, 2023)]
[Proposed Rules]
[Pages 70379-70391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22341]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Doc. No. AMS-SC-21-0039]


U.S. Grade Standards for Pecans in the Shell and Shelled Pecans

AGENCY: Agricultural Marketing Service, Department of Agriculture 
(USDA).

ACTION: Proposed rule.

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SUMMARY: The Agricultural Marketing Service (AMS) is proposing to 
revise the U.S. Standards for Grades of Pecans in the Shell and the 
U.S. Standards for Grades of Shelled Pecans by replacing the current 
grades with U.S. Extra Fancy, U.S. Fancy, U.S. Choice, and U.S. 
Standard grades. The proposal also includes updating terminology, 
definitions, and defect scoring guides.

DATES: Comments must be submitted on or before December 11, 2023.

ADDRESSES: Interested persons are invited to submit comments to the 
Standardization Branch, Specialty Crops Inspection Division, Specialty 
Crops Program, Agricultural Marketing Service, U.S. Department of 
Agriculture, National Training and Development Center; 100 Riverside 
Parkway, Suite 101; Fredericksburg, Virginia 22406; fax: (540) 361-
1199, or via the internet at: https://www.regulations.gov. Comments 
should reference the date and page numbers of this issue of the Federal 
Register. All comments submitted in response to this proposed rule will 
become a part of the public record and be made available to the public 
including any personal information provided at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Olivia L. Banks at the address above, 
or by phone (540) 361-1120; fax (540) 361-1199; or email 
[email protected]. Copies of the proposed U.S. Standards for Grades 
of Pecans in the Shell and U.S. Standards for Grades of Shelled Pecans 
are available on the internet at https://www.regulations.gov. Copies of 
the current U.S. Standards for Grades of Pecans in the Shell and U.S. 
Standards of Grades of Shelled Pecans are available at https://www.ams.usda.gov/grades-standards/nuts.

SUPPLEMENTARY INFORMATION: This proposed action, pursuant to 5 U.S.C. 
553, would amend regulations at 7 CFR part 51 issued under the 
Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), as amended. 
These revisions do not affect the Federal marketing order, 7 CFR part 
986, (Marketing Order 986) issued under the Agricultural Marketing 
Agreement Act of 1937 (7 U.S.C. 601-674) or applicable imports.

Executive Orders 12866, 13563, and 14094

    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 14094. Executive 
Orders 12866 and 13563 direct agencies to assess all costs and benefits 
of available regulatory alternatives and, if regulation is necessary, 
to select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. Executive Order 14094 
reaffirms, supplements, and updates Executive Order 12866 and further 
directs agencies to solicit and consider input from a wide range of 
affected and interested parties through a variety of means. This 
proposed action falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) has exempted from review under 
Executive Order 12866.

Executive Order 13175

    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications.
    AMS has determined that this proposed rule is unlikely to have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988--
Civil Justice Reform. This proposed action is not intended to have 
retroactive effect. There are no administrative procedures that must be 
exhausted prior to any judicial challenge to the provisions of this 
rule.

Background

    AMS continually reviews fruit and vegetable grade standards to 
ensure their usefulness to the industry and to modernize language.
    On June 12, 2020, the American Pecan Council (APC) petitioned AMS 
to revise the U.S. Standards for Grades of Pecans in the Shell and the 
U.S. Standards for Grades of Shelled Pecans (standards). The APC was 
established by, and is regulated under, the Federal marketing order for 
the pecan industry, Marketing Order 986, and represents all 15 major 
U.S. pecan-growing states.
    The APC noted that the pecan standards have not been substantially 
updated since 1969 and the terminology of the standards no longer 
reflects current industry descriptions and practices. The National 
Pecan Shellers Association (NPSA) directed the initiative to update the 
standards for the APC. The APC voted unanimously to submit their 
proposed revisions to the USDA. AMS and the APC have since collaborated 
to refine the proposed revisions.
    The changes to the standards would replace current grades with new 
ones, revise scoring guides for defects, create new sizes, and revise 
definitions. The

[[Page 70380]]

two current grades for pecans in the shell are U.S. No. 1 and U.S. No. 
2. The six current grades for shelled pecans are U.S. No. 1 Halves, 
U.S. No. 1 Halves and Pieces, U.S. No. 1 Pieces, U.S. Commercial 
Halves, U.S. Commercial Halves and Pieces, and U.S. Commercial Pieces. 
AMS proposes to revise both standards by replacing the current grades 
with U.S. Extra Fancy, U.S. Fancy, U.S. Choice, and U.S. Standard 
grades. These proposed changes represent current industry descriptions 
and practices.
    The proposed revisions would not affect Marketing Order 986 or 
applicable imports since there are no grade, size, or quality standards 
currently applied under the marketing order.
    The first proposed rule was published in the Federal Register of 
June 1, 2022 (87 FR 33064), inviting comments on proposed revisions to 
the U.S. Standards for Grades of Pecans in the Shell and the U.S. 
Standards for Grades of Shelled Pecans. The public was invited to 
review and comment on the proposed rule, which was to be accompanied by 
copies of the proposed standards, on https://www.regulations.gov. On 
June 28, 2022, AMS noted that the proposed U.S. Standards for Grades of 
Pecans in the Shell and the U.S. Standards for Grades of Shelled Pecans 
failed to upload to https://www.regulations.gov, and the supporting 
documents were uploaded to https://www.regulations.gov on that date. To 
provide all interested persons a full 60-day comment period to view 
copies of the proposed standards and facilitate review of the proposed 
rule, AMS extended the public comment period by 30 days (87 FR 48091) 
to September 7, 2022. In an effort to pursue clarification, and based 
on the feedback USDA received during the comment period, Specialty Crop 
Inspection Division (SCI) invited interested parties to meet on 
February 28, 2023, and May 2, 2023, to provide an opportunity to 
clarify language and discuss specific sections of the proposed 
standards to ensure there are no misinterpretations on how any proposed 
language would be applied before moving forward with this rulemaking.
    This proposed rule also includes additional changes to align with 
updated Code of Federal Regulations formatting requirements and to 
correct errors that were made in the printing of the previous proposed 
rule in the Federal Register.

Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed rule on small entities. Accordingly, AMS has prepared 
this regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened.
    The Small Business Administration (SBA) defines small growers 
engaging in tree nut farming \1\ as those having annual receipts of no 
more than $3.75 million (13 CFR 121.201).\2\ Handlers, which can be 
defined as those engaging in postharvest crop activities (except 
cotton-ginning),\3\ have a small business size standard of annual 
receipts not exceeding $34 million, per the SBA (13 CFR 121.201).\2\
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    \1\ North American Industry Classification System (NAICS) Code 
111335.
    \2\ Version December 2022 size standards.
    \3\ NAICS Code 115114.
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    In the 2017 Census of Agriculture, the most recent to date, the 
National Agricultural Statistics Service (NASS) reports that of the 
19,008 pecan farms counted nationwide, 440 of them had annual sales 
valued at $1 million or more. This means that 18,568 pecan farms, or 98 
percent of the census, had annual receipts of less than $1 million. As 
the threshold for meeting the definition of a small business, per the 
SBA, is $3.75 million, nearly four times the $1 million maximum 
reported by NASS, the portion of pecan farms that may be considered 
small by the SBA standard is likely even higher than 98 percent.
    According to the Census Bureau, there were 910 firms classified as 
those engaging in postharvest crop activities (except cotton-ginning) 
in 2017. Total sales for all 910 firms was valued at more than $6.4 
billion. The Census Bureau survey \4\ which yielded these results for 
2017 is the most recent to date. The APC estimates that there are 115 
handlers subject to regulation under Marketing Order 986. Of these, the 
APC estimates that 9 handlers have annual sales exceeding $34 million, 
thus surpassing the threshold of a small business as defined by the 
SBA. This means that 106 handlers, or 92 percent of the total, had 
annual receipts not exceeding $34 million and would, therefore, be 
designated as small per the SBA definition.
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    \4\ Economic Surveys Annual Business Survey: Statistics for 
Employer Firms by Industry, Sex, Ethnicity, Race, and Veteran Status 
for the U.S., State, Metro Areas, Counties, and Places: 2017.
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    Food grading standards provide important quality information to 
buyers and sellers that contribute to the efficient marketing of 
agricultural commodities. Because the proposed revisions of the 
standards represent current industry grading practices, these changes 
will not require any significant changes in grower or handler business 
operations nor any significant industry educational effort. As the 
standards are voluntary, handlers are not required to use the new terms 
or make any changes. Neither large nor small handlers will incur 
additional costs. No small businesses will be unduly or 
disproportionately burdened.

Comments

    The first proposed rule was published in the Federal Register of 
June 1, 2022 (87 FR 33064), inviting comments on proposed revisions to 
the U.S. Standards for Grades of Pecans in the Shell and the U.S. 
Standards for Grades of Shelled Pecans. The public was invited to 
review the two proposed standards in their entirety online and comment 
on the proposed rule. Due to AMS technical issues, the drafts of both 
standards were not immediately uploaded through the Federal Register 
automated document management system for public viewing, resulting in 
some commenters misinterpreting that the two standards were being 
combined into a single standard, which was not AMS's intent. On August 
8, 2022, AMS extended the public comment period by 30 days (87 FR 
48091) to allow additional time for commenters to review both 
standards. The 60-day comment period for the proposed rule, lengthened 
by the 30-day extension period, ended September 7, 2022.
    AMS received comments on the proposed changes to the U.S. Standards 
for Grades of Pecans in the Shell and the U.S. Standards for Grades of 
Shelled Pecans from 34 respondents.
    Comment: Numerous comments stated that the two standards should not 
be combined.
    Response: Due to the technical issues described above, some 
commenters misinterpreted that the two standards were being combined 
into one standard, which was not AMS's intent. AMS extended the public 
comment period by 30 days to allow the public additional time to review 
and comment on the two separate standards once they were made 
available.
    Comment: Several comments stated there was no need for the 
standards, that no changes should be made to the current standards, 
that things should be kept simple, or that there is no need for inshell 
standards.
    Response: AMS acknowledges these comments. AMS pursued these 
revisions in response to the APC petition to revise the U.S. Standards 
for

[[Page 70381]]

Grades of Pecans in the Shell and the U.S. Standards for Grades of 
Shelled Pecans. As mentioned earlier, the APC represents all 15 major 
U.S. pecan-growing states.
    The APC noted that the pecan standards have not been substantially 
updated since 1969 and the terminology of the standards no longer 
reflects current industry descriptions and practices. The APC voted 
unanimously to submit their recommended revisions to the USDA. Based on 
industry input, AMS has determined that the standards continue to play 
an important role in U.S. pecan marketing and that they should be 
preserved. The APC has provided evidence of broad-based industry 
support from growers and handlers for the changes to the standards in 
the petition submitted. The recommended changes will modernize the 
standards to reflect current industry practices. Accordingly, AMS made 
no changes to this proposed rule based on this comment.
    Comment: Several comments stated that the ``application of 
tolerances'' language in Sec.  51.1407 was not part of the industry's 
original proposal. However, USDA currently uses a 100-count sample for 
certification of pecans for export. Based on the existing sampling 
procedures, the commenters acknowledged that the 100-count sample size 
would be acceptable in the inshell standard.
    Response: AMS acknowledges this was not in the original petition. 
AMS retained the current 100-count sample size used in the inshell 
standard. The 100-count sample size is not limited to export as noted 
by the commenter. Accordingly, AMS made no changes to this proposed 
rule based on this comment.
    Comment: One commenter asked about sampling rates and tools used to 
select samples. In addition, they did not agree with the process 
currently used to determine the 10 smallest nuts out of 100 nuts and 
suggested that the sample size should be one or two one-pound samples 
without requiring the inspector to pick out the 10 smallest nuts.
    Response: The petitioner did not recommend changes to Sec.  
51.1402--Size classification of the current inshell standards or to the 
sampling procedures. The commenter has not provided supporting 
background or sufficient data to justify changes to the sample size. 
Current requirements for any one of the classifications in Table 1 of 
Sec.  51.1404--Size classification state the lot must conform to both 
the specified number of nuts per pound and the weight of the 10 
smallest nuts per 100-nut sample. Sampling guidelines and tools are 
described in inspection manuals which are available at https://www.ams.usda.gov/grades-standards/nuts. Accordingly, AMS made no 
changes to this proposed rule based on this comment.
    Comment: One commenter expressed concern with Sec.  51.1406--
Tolerances of the June 2022 proposed inshell standards, stating that a 
processor could sell product with 12 percent of the kernels having 
serious damage and 6 percent of the product being rancid, moldy, 
decayed, or injured by insects. On a 30-pound case, the standard size 
case used in commerce, that would mean that 3.6 pounds could be sold 
with serious defects, including rancid, moldy product.
    Response: AMS disagrees. The percentages referenced in this 
proposed section for inshell pecans are based on sample size by count, 
not container size by weight. These tolerances would apply to U.S. 
Extra Fancy, U.S. Fancy, and U.S. Choice grades, and would allow for 12 
percent total defects for kernels, including not more than 7 percent 
for kernels which are seriously damaged, provided that not more than 6 
percent are rancid, moldy, decayed, or injured by insects. This 
proposed restrictive tolerance limits the percent of rancid, moldy, or 
decayed pecans to 6 percent. Accordingly, AMS made no changes to this 
proposed rule based on this comment.
    Comment: One commenter stated that they did not support the 
proposed revisions to the inshell pecan standards, stating that a small 
number of shellers control the market. Further, they stated that the 
revision would automatically put almost the entirety of the U.S. pecan 
crop in the bottom half of the quality grades. They additionally stated 
that it is rare that any one-pound sample of inshell pecans would ever 
be completely ``free from damage by any cause,'' and they are concerned 
that the proposed revisions will negatively impact U.S. pecan growers.
    Response: AMS is revising these voluntary standards based on a 
petition from the APC. AMS reviewed this request and determined it had 
merit. AMS finds that the proposed revisions should improve the 
marketing of pecans in the United States and internationally by 
modernizing language to more accurately reflect product currently 
available, including the addition of higher quality options to meet 
customer preferences. Regarding the concerns surrounding the ``free 
from damage by any cause'' language, this does not mean free from 
defects, or that any amount of blemishes would fail the lot. The term 
``damage'' is defined in the proposed inshell standards in Sec.  
51.1416. This section provides a listing of defects, including the 
severity and scoring criteria. The tolerances provided in Sec.  
51.1406--Tolerances apply to U.S. Extra Fancy, U.S. Fancy, U.S. Choice, 
and U.S. Standard grades; are based on a composite sample by count, not 
by weight; and allow for percentage totals for defects based on the 
grade being applied. Accordingly, AMS made no changes to this proposed 
rule based on this comment.
    Comment: Several commenters indicated that the text in the June 
2022 proposed shelled standards at Sec.  51.1433(a)(3) read ``No 
requirement for uniformity of kernel,'' while it should have read ``No 
requirement for uniformity of color.''
    Response: AMS recognizes this typographical error in the June 2022 
proposed standards and has included the corrected text in this proposed 
rule.
    Comment: Several comments indicated that the term ``sixteenths'' in 
the size classification for pieces should be removed from the June 2022 
proposed shelled standards at Sec.  51.1436(a) as all size 
classifications should be described in ``sixty-fourths'' of an inch.
    Response: AMS agrees with the removal of the ``sixteenths'' 
measurement as it was a carryover from the current standard. 
Accordingly, AMS has made this change in this proposed rule.
    Comment: Several comments noted the omission of language in the 
June 2022 proposed shelled standards at Sec.  51.1437--Tolerances for 
defects concerning the restrictive tolerance for color of kernels.
    Response: AMS recognizes this typographical error in the June 2022 
proposed standards and has included the missing text in the ``Extra 
Fancy'' grade section of Sec.  51.1437--Tolerances for defects of this 
proposed rule.
    Comment: One commenter stated that they did not agree with the 
proposed definitions for ``half-kernel,'' that the definitions as 
proposed would allow for all product to have a portion missing and 
still meet the requirements, and that there should be a limit to the 
allowable amount of kernels (5 percent for Extra Fancy and 15 percent 
for all other grades) with portions missing.
    Response: AMS disagrees with this comment, as the proposed 
definitions reflect current industry practices and have been in the 
standard since 1969. However, the terms have been updated in the new 
proposed standards to include definitions for both ``premiere half-
kernels'' and ``half-kernels'' to differentiate between Sec.  
51.1439(a) and

[[Page 70382]]

(b) of the June 2022 proposed standard. For kernels failing to meet the 
definition, the tolerances in proposed Sec.  51.1437--Tolerances for 
defects would be applied. Based on clarifying conversation items 8 and 
9, discussed later in this document, there has not been broad-based 
support from industry for adding further limitations to these 
definitions and tolerances. Accordingly, AMS has made the above-
mentioned changes to this proposed rule.
    Comment: One commenter asked who would be performing the 
inspections.
    Response: The standards are voluntary, and inspections would 
continue to be performed by federal or federal-state inspectors, at the 
request of the applicant.
    Comment: One commenter asked if processors/shellers will be 
reimbursed for changes to boxes, literature, etc., to reflect the new 
regulations' sizes and names of sizes, arguing that the cost for 
changing labels would be a hinderance to processors, especially small 
ones.
    Response: The standards are voluntary, provide common language to 
facilitate trade, and contain no marking requirements. While AMS 
understands that there may be a cost associated with labeling changes, 
industry use of grade and size terms is not mandated by USDA. 
Accordingly, AMS made no changes to this proposed rule based on this 
comment.
    Comment: One commenter shared pecan size classifications used by 
the pecan industry in South Africa.
    Response: AMS acknowledges this comment and appreciates the 
information provided.
    Comment: One commenter, in order to fully understand the impact of 
the proposed changes regarding new nomenclature and specifications, 
asked what percentage of crop over the last five years would have been 
downgraded under the proposed regs, and what percentage would have been 
upgraded.
    Response: Due to the voluntary nature of the U.S. standards, AMS 
does not collect this data and is unable to provide this information.
    Comment: One commenter stated that they did not support the 
proposed revisions to the standards and did not agree with having 
inshell standards at all. They stated further that creating a quality 
standard for inshell product would mean that the farmer would be 
penalized for minor exterior issues when the actual product was the 
kernel and not the shell.
    Response: The U.S. Standards for Grade of Pecans in the Shell were 
originally published in 1930. This proposed revision does not create a 
new U.S. Standards for Grade of Pecans in the Shell but revises the 
terminology of the standards to correctly reflect current industry 
practices and modernizes language to more accurately reflect product 
currently available. Regarding the concerns surrounding being penalized 
for minor exterior defects, the standards provide a listing of defects, 
including the severity and scoring criteria, which does not mean the 
product must be free from defects, or that any amount of blemishes 
would fail the lot. Accordingly, AMS made no changes to this proposed 
rule based on this comment.
    Comment: One commenter stated that the standards should include 
only three grades instead of four. They suggested the first two grades 
be combined, as they are very similar. The commenter requested that the 
grading process be kept simple.
    Response: The proposed revisions are based on a petition from APC 
to modernize the standards and are intended to improve the marketing of 
pecans. AMS finds that the proposed additional grade levels should 
improve the marketing of pecans in the United States and 
internationally by allowing for the variation in grade level and 
including the addition of higher quality options to meet customer 
preferences. Accordingly, AMS made no changes to this proposed rule 
based on this comment.

Comments and Issues Addressed During Clarifying Conversations

    After the comment period closed, AMS reviewed the comments received 
and, based on the complexity of the proposed revisions, contacted the 
petitioner, APC, for clarifying conversations. AMS held these 
conversations with the APC, NPSA, National Pecan Federation, Georgia 
Pecan Growers Association, Oklahoma Pecan Growers Association, Texas 
Pecan Growers Association, Western Pecan Growers Association, members 
of the industry, and other interested parties on February 28, 2023, and 
May 2, 2023. Select comments received on the proposed rule were 
discussed, and issues were clarified and incorporated into the draft 
standards associated with this proposed rule. Changes based on these 
conversations are outlined below.

1. Inshell--Loose Extraneous or Foreign Material

    In the June 2022 proposed rule, AMS proposed to retain--in proposed 
Sec. Sec.  51.1400(a), 51.1401(a), 51.1402(a), and 51.1403(a)--the 
current requirement for all grades of inshell pecans that they be free 
of loose extraneous or foreign material. The proposed rule also 
retained current tolerances for such material for each grade (0.5 
percent (one-half of 1 percent) by weight for all grades), as well as 
the current definition for the term loose extraneous or foreign 
material, which means loose hulls, empty broken shells, or any 
substance other than pecans in the shell or pecan kernels.
    Due to confusion about which standard the proposed requirements 
applied to, numerous commenters stated that tolerances for loose 
extraneous or foreign material did not belong in the inshell standards. 
On the other hand, one comment stated that limits for loose extraneous 
or foreign material should be included in the inshell standards so that 
large amounts of such material are not included in loads of inshell 
pecans.
    While not included in the original recommended language from the 
APC, ``Free from loose extraneous or foreign material'' is a basic 
requirement of each grade and is included in the current standards to 
prevent large amounts of loose extraneous or foreign material from 
entering commerce. There are restrictive tolerances set in place to 
allow for a certain percentage of loose extraneous or foreign material 
in each sampled load. APC originally recommended adding rocks, wood, 
glass, and plastic to the definition of loose extraneous or foreign 
material.
    After discussions with the industry, AMS retained ``Free from loose 
extraneous or foreign material'' in the proposed requirements for each 
grade; retained the proposed tolerances for such material in inshell 
pecans; and included the recommended additional defects in the 
definition of loose extraneous or foreign material in this proposed 
rule.

2. Inshell--Damage and Serious Damage

    In the June 2022 proposed rule, AMS proposed requirements 
pertaining to shell or kernel ``damage by any cause'' for the U.S. 
Extra Fancy and U.S. Fancy grades in Sec. Sec.  51.1400 and 51.1401 and 
to shell or kernel ``serious damage by any cause'' for the U.S. Choice 
grade in Sec.  51.1402. No requirements pertaining to ``damage'' or 
``serious damage'' defects were specified for shells or kernels for the 
U.S. Standard grade in proposed Sec.  51.1403. The proposed rule 
further specified in Sec.  51.1406 related tolerances for those defects 
in all four grades. Finally, in proposed Sec. Sec.  51.1416 and 
51.1417, AMS proposed definitions for the defects Damage and Serious 
damage.
    AMS later determined that the requirements for the U.S. Choice 
grade

[[Page 70383]]

needed to align with those for U.S. Extra Fancy and U.S. Fancy grades, 
as they are grouped together, and all have the same ``damage'' and 
``serious damage'' defect tolerances in Sec.  51.1406. AMS further 
determined that it was necessary to revise the proposed language for 
the U.S. Standard grade in Sec.  51.1403(h) references to the 
``Tolerances'' section, proposed Sec.  51.1406, to clarify that there 
are not increased tolerances for the U.S. Standard grade.
    APC's original petition included the language ``free from damage or 
serious damage by any cause,'' while the June 2022 proposed standards 
only specified ``free from damage by any cause'' for U.S. Extra Fancy 
and U.S. Fancy and ``free from serious damage by any cause'' for U.S. 
Choice. In discussions with AMS, the industry agreed that ``free from 
damage by any cause'' is appropriate for the requirements of both the 
U.S. Choice and U.S. Standard grades in Sec. Sec.  51.1402 and 51.1403, 
and that the restrictive tolerance for serious damage should be 
included in the ``Tolerances'' in Sec.  51.1406(a) for U.S. Extra 
Fancy, U.S. Fancy, and U.S. Choice grades, and (b) for U.S. Standard 
grade. Accordingly, AMS has made these changes in this proposed rule.

3. Inshell--Moisture Content

    Section 51.1416 (d) of the current inshell standards provides that 
kernel moisture content is not a requirement, but can be determined 
upon request by the applicant. In the June 2022 proposed rule, AMS 
proposed to add a new Sec.  51.1420--Kernel moisture content, to 
specify that inshell pecans should have a moisture content of no more 
than 6 percent, unless otherwise specified.
    APC originally recommended two different moisture content limits, 
one for domestic shipments (no more than 6 percent) and one for 
international (import/export) shipments (no more than 4.5 percent). AMS 
coordinated with APC prior to publishing the June 2022 proposed 
standards and presented options for moisture content, as there cannot 
be a more restrictive requirement for imported product. APC agreed that 
``not more than 6 percent, unless otherwise specified'' would be 
acceptable for all shipments.
    Numerous comments stated that 6 percent moisture was too high. AMS 
discussed with the industry at the February and May 2023 meetings 
whether moisture content limits should be a requirement of grade, and 
what that moisture content limit should be. The industry recommended 
making moisture content limits a requirement for grade, and keeping the 
language as AMS proposed. Including the language ``unless otherwise 
specified'' as part of the moisture requirement allows parties to 
stipulate varying moisture content limits based on intended use and 
contract specifications. This additional language resolves any concern 
about 6 percent moisture being too high.
    Accordingly, AMS is removing proposed Sec.  51.1420--Kernel 
moisture content as a standalone section, and is now proposing to add 
kernel moisture content of no more than 6 percent, unless otherwise 
specified, as a basic requirement for each grade of inshell pecans in 
Sec. Sec.  51.1400(c), 51.1401(c), 51.1402(c), and 51.1403(c).

4. Shelled--Damage and Serious Damage

    In the June 2022 proposed rule, AMS proposed requirements 
pertaining to kernel ``damage by any cause'' for the U.S. Extra Fancy 
and U.S. Fancy grades in Sec. Sec.  51.1430 and 51.1431, to kernel 
``serious damage by any cause'' for the U.S. Choice grade in Sec.  
51.1432, and no requirements pertaining to damage or serious damage for 
the U.S. Standard grade in Sec.  51.1433. The June 2022 proposed rule 
further specified in Sec.  51.1437 related tolerances for those defects 
in the four grades. Finally, in Sec. Sec.  51.1452 and 51.1453, AMS 
proposed definitions for the defects ``Damage'' and ``Serious damage.''
    AMS later determined that the requirements for U.S. Choice grade, 
in Sec.  51.1432(a)(6) needed to be revised to specify ``Free from 
damage by any cause.'' Further, AMS determined the U.S. Standard grade 
required the addition of ``Free from damage by any cause'' to Sec.  
51.1433(a)(6). Additionally, AMS needed to revise Sec.  51.1433(a)(7) 
references to the ``Tolerances for defects'' (Sec.  51.1437), to 
clarify that there are not increased tolerances for the U.S. Standard 
grade.
    In discussions with AMS, the industry agreed that the language 
``free from damage by any cause'' would be appropriate for the U.S. 
Choice and U.S. Standard grade requirements, and that Sec.  
51.1433(a)(7) needed to be updated. Accordingly, AMS added ``free from 
damage by any cause'' to the U.S. Choice and U.S. Standard grades 
within this proposed rule. Additionally, AMS revised Sec.  
51.1433(a)(7) references to the ``Tolerances for defects'' (Sec.  
51.1437).

5. Shelled--Pecan Weevil Larvae

    APC originally recommended that the presence of pecan weevil larvae 
be determined on a 30-pound sample (the typical size for a case of 
shelled pecans), with no larvae allowed in U.S. Extra Fancy, no more 
than 2 larvae in U.S. Fancy, no more than 5 larvae in U.S. Choice, and 
no limit on the number of larvae in U.S. Standard. AMS's June 2022 
proposed rule contained the language as recommended by APC, but upon 
further review, AMS noted an additional sampling procedure would need 
to be established in order to determine compliance with this 
requirement. In discussions with AMS, industry agreed that the 
determination of pecan weevil larvae should be part of the current 
sampling process for pecan inspections and not based on an additional 
30-pound sample, specifically for the presence of pecan weevil larvae. 
The industry also agreed that Sec.  51.1437--Tolerances for defects for 
the U.S. Extra Fancy grade should remain as proposed in the June 2022 
proposed rule. Therefore, any amount of pecan weevil larvae found would 
fail a lot; U.S. Fancy tolerance would allow not more than 2 pecan 
weevil larvae per lot, provided that the tolerance for serious damage 
is not exceeded; and U.S. Choice tolerance would allow not more than 5 
pecan weevil larvae per lot, provided that the tolerance for serious 
damage is not exceeded. Additionally, the number of pecan weevil larvae 
found in U.S. Fancy and U.S. Choice lots would be included in the 
tolerance for serious damage, not in addition to the serious damage 
tolerance. The grade U.S. Standard will not specify a limit for pecan 
weevil larvae, as in this case the lack of a specified limit does not 
create an exemption from meeting the ``serious damage'' tolerance, 
under which the defect ``pecan weevil larvae'' is scored. Accordingly, 
AMS has included these changes in this proposed rule.

6. Shelled--Moisture Content

    The standards currently require that all grades of shelled pecan 
halves and pieces must be well dried, but no limits to moisture content 
are specified in the definition of well dried in Sec.  51.1444. In the 
June 2022 proposed rule, AMS proposed to require that all four grades 
of shelled pecans be well dried.
    APC originally recommended including the moisture content limit as 
part of the definition of well dried, and AMS's proposed standards 
included a moisture content limit as part of the definition but upon 
further review, AMS noted that in order to make moisture content limit 
a requirement, it needed to be listed in the grade requirements. 
Separation of these two requirements allows moisture requirements to be 
applied to the lot as a whole, and kernels not meeting the definition 
of well dried can be scored on an individual basis. Industry agreed to 
make moisture content limit a requirement, and that moisture should

[[Page 70384]]

be separated from the definition of well dried. Additionally, industry 
agreed to keep the proposed moisture content limit as published at not 
more than 4.5 percent, unless otherwise specified. Under this proposed 
rule, moisture content limit would be added as a basic requirement of 
each grade (Sec.  51.1430 through Sec.  51.1433). Accordingly, AMS has 
included these changes in this proposed rule.

7. Shelled--Insects as Foreign Material

    In the June 2022 proposed rule, AMS proposed to include ``insects'' 
in the definition of foreign material in Sec.  51.1450 of the shelled 
pecan standards, as APC originally recommended. However, upon further 
review, AMS determined that ``insects'' should be removed from the 
definition of foreign material because it would create conflicting 
requirements by allowing no insects as foreign material on one hand, 
and specifying a tolerance for serious damage, which includes insects, 
on the other. In discussions with AMS, industry agreed that ``insects'' 
should be removed from the definition of foreign material in Sec.  
51.1451 of the new proposed standards because insects would be covered 
under the tolerance for serious damage. Accordingly, AMS has included 
this change in this proposed rule.

8. Shelled--Half-Kernel

    In the June 2022 proposed rule, AMS proposed two definitions for 
the size term Half-kernel--one that would apply to U.S. Extra Fancy 
grade, and one that would apply to all other grades. This coincided 
with APC's original recommendation. However, upon further review, AMS 
determined that a term can only have one meaning. AMS determined 
further that the proposed definition of Half-kernel for all other 
grades conflicted with the proposed definition of Piece.
    In discussions with the industry, AMS suggested--and the industry 
agreed with-- adding the size term Premier half-kernel (Premiere 
halves), which could be used only with the U.S. Extra Fancy grade, and 
with updating the size definition of Piece. Accordingly, Premier half-
kernel (Premier halves) is defined in Sec.  51.1439 of this proposed 
rule, with tolerances provided in the newly proposed Table 2 to Sec.  
51.1435. The term Half-kernel (Halves) is defined in Sec.  51.1440 of 
this proposed rule. AMS also proposes a revised size definition of 
Piece in Sec.  51.1441 so that there would be no conflict with the 
proposed definition of Half-kernel (Halves). Accordingly, AMS has 
included these changes in this proposed rule.

9. Shelled--Size Tolerances for Pieces, Meal, and Flour

    APC originally recommended having two definitions for the term 
half-kernel (as discussed in item 8 of clarifying conversations). With 
the addition of the new term premier halves, AMS changed the paragraph 
style format in Sec.  51.1435(d) (of the June 2022 proposed standards) 
into table style format (Table 2 to Sec.  51.1435) for clarity. Having 
two distinct size terms for premiere halves and halves allows for each 
size to be applied to the U.S. Extra Fancy grade, which allows for 
greater flexibility within the standard. Tolerances for U.S. Extra 
Fancy Premier Halves, U.S. Extra Fancy Halves, U.S. Fancy Halves, U.S. 
Choice Halves, and U.S. Standard Halves are shown in Table 2 to Sec.  
51.1435 of this proposed rule. Additionally, the industry requested 
that the originally proposed tolerances of 5 percent for U.S. Extra 
Fancy Premier Halves (Less than \7/8\ half-kernel) and U.S. Extra Fancy 
Halves (Less than \3/4\ half-kernel) in Table 2 to Sec.  51.1435 be 
increased to 10 percent. Accordingly, AMS has included this change in 
this proposed rule.

10. Shelled--Size Tolerances for Pieces

    APC originally recommended having the range for ``topping pieces'' 
be \12/64\ inch to \8/64\ inch and the range for ``granules'' be \8/64\ 
inch to \4/64\ inch. The June 2022 proposed standards included this 
language; however, upon further review, AMS determined that additional 
clarifying language needed to be added to the restrictive tolerances 
for pieces in Sec.  51.1436(b)(1)-(3) to exclude topping pieces and 
granules. The industry agreed with these changes. Accordingly, AMS has 
included these changes in this proposed rule.

11. Shelled--Color

    APC originally recommended including a color requirement and 
tolerances for each grade. The June 2022 proposed standards were 
published with APC's recommended language. Upon further review, AMS 
determined that the proposed tolerances for kernels darker than a 
specified color did not align with the minimum color for U.S. Extra 
Fancy, U.S. Fancy, and U.S. Standard grades. To correct this issue, AMS 
proposed to update color terms in the ``Tolerances for defects'' 
section for U.S. Extra Fancy (Sec.  51.1437(a)(4)-(5)), which was 
changed from ``dark amber'' to ``light amber;'' and for U.S. Fancy 
(Sec.  51.1437(b)(4)-(5)), from ``dark amber'' to ``amber.'' AMS 
further proposed to remove ``dark amber or darker'' from the 
``Tolerances for defects'' section for U.S. Standard (Sec.  
51.1437(d)(3)). When discussing the issue with the industry, there was 
some confusion about the application of the USDA kernel color 
standards, PEC-MC-1, and whether it was a requirement of the grade. 
PEC-MC-1 illustrates the color intensities implied by the terms 
outlined in the ``Color classifications.'' The industry agreed with 
AMS's clarification that color is indeed a requirement of the grade and 
PEC-MC-1 is needed to meet the terminology in the ``Color 
classifications'' section of the standards. AMS further clarified to 
the industry that PEC-MC-1 is not used as a direct comparative to gauge 
pecan color of the individual kernel; rather, it is used to gauge the 
percentage of the varying colors of a kernel to meet the defined color 
terminology within Sec.  51.1434--Color classifications of the 
standards. Accordingly, AMS has included these changes in this proposed 
rule.

12. Inshell and Shelled--Development

    The APC petition recommended a range from minimum to maximum 
development of pecan kernels in U.S. Fancy and U.S. Choice grades. The 
June 2022 proposed standards included the proper method for listing 
minimum kernel development requirements. AMS received comments opposing 
the language that was included in the June 2022 proposed standards. AMS 
clarified that the language as published meets the industry's intent 
for minimum kernel development in each grade, as there are unintended 
consequences when including a range in the requirements for the grade. 
The industry agreed that a range from minimum to maximum kernel 
development within U.S. Fancy and U.S. Choice grades would result in 
unintentional classification of kernels as defects. Accordingly, AMS 
will retain descriptive language from the June 2022 proposed rule, 
which lists the minimum kernel development requirements of the grade 
for development.

13. Inshell and Shelled--Rancidity

    APC's petition explained that ``rancidity'' refers to the tendency 
of the oil in a pecan kernel to become tainted as a result of oxidation 
or hydrolysis. While there is no definitive measure to determine 
rancidity, the tendency of the kernel to become rancid can be evaluated 
by testing the kernel's peroxide and free fatty acid values. Peroxide 
values should be less than 5 mEq/kg, and free fatty acid should be less 
than 1 percent.
    The information above was included as standalone definitions in the 
June

[[Page 70385]]

2022 proposed standards. However, upon further review by AMS, it was 
determined that the information would cause confusion and contradict 
the scoring criteria under ``rancidity'' in Sec.  51.1417(i)--Serious 
damage for inshell standards, and Sec.  51.1453(h)--Serious damage for 
shelled standards. AMS suggested adding this information as a footnote 
to those paragraphs instead to clarify that the analysis would not be a 
requirement of grade, and that no analysis for rancidity would be 
performed in determination of grade. The industry agreed to removing 
the rancidity definition from the June 2022 proposed standards at Sec.  
51.1419 and Sec.  51.1453, and to adding a footnote to ``rancidity'' as 
a serious defect, indicating industry methods of determination. This 
method would allow AMS to provide the informative language desired by 
the industry without causing any confusion on how rancidity is scored. 
Accordingly, AMS is retaining the defect ``rancidity,'' which shows how 
rancidity is scored when pecans are distinctly rancid to taste in 
paragraph (i) of proposed Sec.  51.1417--Serious damage in the 
standards for inshell pecans, and in paragraph (h) of proposed Sec.  
51.1453--Serious damage in the standards for shelled pecans; removing 
industry's methods of determination for rancidity as a standalone 
section in the June 2022 proposed rule; and adding a footnote to 
``rancidity'' as a serious damage defect, to indicate industry's 
methods of determination within this proposed rule.

14. Inshell and Shelled--Undeveloped

    APC originally recommended a definition for the term undeveloped in 
the standards for inshell pecans to clarify that undeveloped kernels 
have practically no food value, or are blank (complete shell containing 
no kernel). AMS included this description as a serious damage defect in 
Sec.  51.1417(j) of the proposed rule. ``Undeveloped kernel'' was also 
listed as a serious damage defect in the standards for shelled pecans 
in proposed Sec.  51.1452, but included no further description.
    Upon further review, AMS determined that the inclusion of 
``undeveloped kernels'' as a serious damage defect for shelled pecans 
created a conflict with the proposed definition of poorly developed 
(where the kernel is full-meated in less than 25 percent of its width 
and length) and asked for industry input on the definition of 
undeveloped kernels for the inshell standard.
    The industry determined that there was no need for the term 
``undeveloped'' in the shelled pecan standard, and further stated that 
the definition needed to be modified for the inshell standards to mean 
undeveloped kernels which are blank (complete shell containing no 
kernel).
    AMS agrees that these revisions would provide greater clarity and 
accordingly has revised the proposed definition of undeveloped kernel 
in the list of serious damage defects for inshell pecans in Sec.  
51.1417(j) to mean undeveloped kernels which are blank (complete shell 
containing no kernel). Under this proposed rule, undeveloped kernels 
would be scored as serious damage in all grades of inshelled pecans. 
For shelled pecans, the term ``undeveloped kernel'' is not included in 
the ``serious damage'' defect listing. Kernel development would only be 
scored as damage in all grades of shelled pecans.

15. Inshell and Shelled--Housekeeping

    Upon further review of the standards, it was determined that 
additional minor housekeeping edits were needed for both standards. The 
additional proposed edits are in line with edits that have been made to 
other recently revised standards, and the industry agreed that the 
edits are acceptable. Those edits are as follows:
    Inshell pecan standards: Removal of metric conversions throughout 
the standard. These conversions were not accurate and are rarely 
utilized.
    Shelled pecan standards: Removal of metric conversion table. This 
standard did not contain any metric conversions; therefore, the table 
is unnecessary.
    Accordingly, AMS has included these changes in this proposed rule.
    USDA has determined that this rule is consistent with and would 
effectuate the purpose of the Agricultural Marketing Act of 1946. 
Therefore, this rule proposes to revise the voluntary U.S. Standards 
for Grades of Pecans in the Shell and the U.S. Standards for Grades of 
Shelled Pecans issued under the Agricultural Marketing Act of 1946.

List of Subjects in 7 CFR Part 51

    Food grades and standards, Fruits, Nuts, Reporting and 
recordkeeping requirements, Vegetables.

    For reasons set forth in the preamble, the Agricultural Marketing 
Service proposes to amend 7 CFR part 51 as follows:

PART 51--FRESH FRUITS, VEGETABLES, AND OTHER PRODUCTS (INSPECTION, 
CERTIFICATION, AND STANDARDS

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  7 U.S.C. 1621-1627.

0
2. Revise Subpart M--United States Standards for Grades of Pecans in 
the Shell to read as follows:

Subpart M--United States Standards for Grades of Pecans in the 
Shell

Sec.

Grades

Sec.  51.1400 U.S. Extra Fancy.
Sec.  51.1401 U.S. Fancy.
Sec.  51.1402 U.S. Choice.
Sec.  51.1403 U.S. Standard.

Size Classification

Sec.  51.1404 Size classification.

Kernel Color Classification

Sec.  51.1405 Kernel color classification.

Tolerances

Sec.  51.1406 Tolerances.

Application of Tolerances

Sec.  51.1407 Application of tolerances.

Sample for Grade or Size Determination

Sec.  51.1408 Sample for grade or size determination.

Definitions

Sec.  51.1409 Loose extraneous or foreign material.
Sec.  51.1410 Well cured.
Sec.  51.1411 Well developed.
Sec.  51.1412 Fairly well developed.
Sec.  51.1413 Poorly developed.
Sec.  51.1414 Uniform in color.
Sec.  51.1415 Fairly uniform in color.
Sec.  51.1416 Damage.
Sec.  51.1417 Serious damage.
Sec.  51.1418 Inedible kernels.

Subpart M--United States Standards for Grades of Pecans in the 
Shell

Grades


Sec.  51.1400  U.S. Extra Fancy.

    ``U.S. Extra Fancy'' consists of pecans in the shell which meet the 
following requirements:
    (a) Free from loose extraneous or foreign material.
    (b) Shells are:
    (1) Uniform in color; and
    (2) Free from damage by any cause.
    (c) Kernels are:
    (1) Well developed;
    (2) Well cured;
    (3) Moisture content shall be not more than 6 percent, unless 
otherwise specified;
    (4) Uniform in color and not darker than ``light;'' and

[[Page 70386]]

    (5) Free from damage by any cause.
    (d) For tolerances see Sec.  51.1406.


Sec.  51.1401   U.S. Fancy.

    ``U.S. Fancy'' consists of pecans in the shell which meet the 
following requirements:
    (a) Free from loose extraneous or foreign material.
    (b) Shells are:
    (1) Uniform in color; and
    (2) Free from damage by any cause.
    (c) Kernels are:
    (1) Fairly well developed;
    (2) Well cured;
    (3) Moisture content shall be not more than 6 percent, unless 
otherwise specified;
    (4) Uniform in color;
    (5) Not darker than ``light amber,'' unless specified to a lighter 
color classification; and
    (6) Free from damage by any cause.
    (d) For tolerances see Sec.  51.1406.


Sec.  51.1402   U.S. Choice.

    ``U.S. Choice'' consists of pecans in the shell which meet the 
following requirements:
    (a) Free from loose extraneous or foreign material.
    (b) Shells are:
    (1) Fairly uniform in color; and
    (2) Free from damage by any cause.
    (c) Kernels are:
    (1) Not poorly developed;
    (2) Well cured;
    (3) Moisture content shall be not more than 6 percent, unless 
otherwise specified;
    (4) Fairly uniform in color;
    (5) Not darker than ``amber,'' unless specified to a lighter color 
classification; and
    (6) Free from damage by any cause.
    (d) For tolerances see Sec.  51.1406.


Sec.  51.1403   U.S. Standard.

    ``U.S. Standard'' consists of pecans in the shell which meet the 
following requirements:
    (a) Free from loose extraneous or foreign material;
    (b) Kernels well cured;
    (c) Moisture content shall be not more than 6 percent, unless 
otherwise specified;
    (d) No requirement for fullness of kernel;
    (e) No requirement for uniformity of color of shells or kernels;
    (f) May contain kernels that are ``dark amber'' or darker, unless 
specified to a lighter color classification; and
    (g) Shells and kernels are free from damage by any cause.
    (h) For tolerances see Sec.  51.1406.

Size Classification


Sec.  51.1404   Size classification.

    Size of pecans may be specified in connection with the grade in 
accordance with one of the following classifications. To meet the 
requirements for any one of the classifications in Table 1 to this 
section, the lot must conform to both the specified number of nuts per 
pound and the weight of the 10 smallest nuts per 100-nut sample.

                        Table 1 to Sec.   51.1404
------------------------------------------------------------------------
                                                   Minimum weight of the
      Size classification         Number of nuts    10 smallest nuts per
                                    per pound          100-nut sample
------------------------------------------------------------------------
Jumbo.........................  55 or less.......  In each
                                                    classification, the
                                                    10 smallest nuts per
                                                    100 must weigh at
                                                    least 7% of the
                                                    total weight of the
                                                    100-nut sample.
Extra Large...................  56 to 63.........
Large.........................  64 to 77.........
Medium........................  78 to 100........
Small.........................  101 or more......
------------------------------------------------------------------------

Kernel Color Classification


Sec.  51.1405  Kernel color classification.

    (a) The skin color of the pecan kernels are described in terms of 
the color classifications provided in this section. When specified to a 
lighter color classification, that color may be used to describe the 
lot in connection with the grade.
    (1) Light means that the kernel is mostly golden color or lighter, 
with not more than 25 percent of the surface darker than golden, and 
none of the surface darker than light brown.
    (2) Light amber means that more than 25 percent of the kernel is 
light brown, with not more than 25 percent of the surface darker than 
light brown, none of which is darker than medium brown.
    (3) Amber means that more than 25 percent of the kernel is medium 
brown, with not more than 25 percent of the surface darker than medium 
brown, none of which is darker than dark brown (very dark brown or 
blackish-brown discoloration).
    (4) Dark amber means that more than 25 percent of the kernel is 
dark brown, with not more than 25 percent of the surface darker than 
dark brown (very dark brown or blackish-brown discoloration).
    (b) U.S. Department of Agriculture kernel color standards, PEC-MC-
1, illustrate the color intensities implied by the terms ``golden,'' 
``light brown,'' ``medium brown,'' and ``dark brown'' referred to in 
paragraph (a) of this section. The color standards are available at 
https://www.ams.usda.gov/grades-standards.

Tolerances


Sec.  51.1406  Tolerances.

    In order to allow for variations incident to proper grading and 
handling in each of the foregoing grades, the following tolerances are 
provided as specified:
    (a) U.S. Extra Fancy, U.S. Fancy, and U.S. Choice grades:
    (1) For shell defects, by count: 5 percent for pecans with damaged 
shells, including therein not more than 2 percent for shells which are 
seriously damaged.
    (2) For kernel defects, by count: 12 percent for pecans with 
kernels which fail to meet the requirements for the grade or any 
specified color classification, including therein not more than 7 
percent for kernels which are seriously damaged: Provided, That not 
more than 6 percent shall be allowed for kernels which are rancid, 
moldy, decayed, or injured by insects: Provided further, That included 
in this 6 percent tolerance not more than 0.5 percent (one-half of 1 
percent) shall be allowed for pecans with live insects inside the 
shell.
    (3) For loose extraneous or foreign material, by weight: 0.5 
percent (one-half of 1 percent).
    (b) U.S. Standard grade:
    (1) For shell defects, by count: 10 percent for pecans with damaged 
shells, including therein not more than 3 percent for shells which are 
seriously damaged.
    (2) For kernel defects, by count: 30 percent for pecans with 
kernels which fail to meet the requirements for the grade or any 
specified color classification, including therein not

[[Page 70387]]

more than 10 percent for kernels which are seriously damaged: Provided, 
That not more than 7 percent shall be allowed for kernels which are 
rancid, moldy, decayed, or injured by insects: Provided further, That 
included in this 7 percent tolerance not more than 0.5 percent (one-
half of 1 percent) shall be allowed for pecans with live insects inside 
the shell.
    (3) For loose extraneous or foreign material, by weight: 0.5 
percent (one-half of 1 percent).

Application of Tolerances


Sec.  51.1407  Application of tolerances.

    Individual 100-count samples shall have not more than one and one-
half times a specified tolerance of 5 percent or more and not more than 
double a tolerance of less than 5 percent, except that at least one 
pecan which is seriously damaged by live insects inside the shell is 
permitted: Provided, That the averages for the entire lot are within 
the tolerances specified for the grade.

Sample for Grade or Size Determination


Sec.  51.1408  Sample for grade or size determination.

    Each sample shall consist of 100 pecans. The individual sample 
shall be drawn at random from a sufficient number of packages to form a 
100-count composite sample. The number of such individual 100-count 
samples drawn for grade or size determination will vary with the size 
of the lot. When practicable, at point of packaging the sample may be 
obtained from the grading belt after sorting has been completed.

Definitions


Sec.  51.1409  Loose extraneous or foreign material.

    Loose extraneous or foreign material means loose hulls, empty 
broken shells, rocks, wood, glass, plastic, or any substance other than 
pecans in the shell or pecan kernels.


Sec.  51.1410   Well cured.

    Well cured means the kernel separates freely from the shell, breaks 
cleanly when bent without splintering, shattering, or loosening the 
skin; and the kernel appears to be in good shipping or storage 
condition as to moisture content.


Sec.  51.1411   Well developed.

    Well developed means that the kernel is full-meated throughout its 
width and length.


Sec.  51.1412  Fairly well developed.

    Fairly well developed means that the kernel is full-meated in over 
50 percent of its width and length.


Sec.  51.1413   Poorly developed.

    Poorly developed means that the kernel is full-meated in less than 
25 percent of its width and length.


Sec.  51.1414  Uniform in color.

    Uniform in color means that the shells do not show sufficient 
variation in color to detract from the general appearance of the lot 
and that 95 percent or more of the kernels in the lot have skin color 
within the range of one or two color classifications.


Sec.  51.1415   Fairly uniform in color.

    Fairly uniform in color means that the shells do not show 
sufficient variation in color to materially detract from the general 
appearance of the lot and that 85 percent or more of the kernels in the 
lot have skin color within the range of one or two color 
classifications.


Sec.  51.1416  Damage.

    Damage means any specific defect described in this section; or an 
equally objectionable variation of any one of these defects, or any 
other defect, or any combination of defects, which materially detracts 
from the appearance or the edible or marketing quality of the 
individual pecan or the general appearance of the pecans in the lot. 
The following defects shall be considered as damage:
    (a) Adhering hull material or dark stains affecting an aggregate of 
more than 5 percent of the surface of the individual shell;
    (b) Adhering material from inside the shell when firmly attached to 
more than one-third of the outer surface of the kernel and contrasting 
in color with the skin of the kernel;
    (c) Broken shells when any portion of the shell is missing;
    (d) Internal flesh discoloration of a medium shade of gray or brown 
extending more than one-fourth inch lengthwise beneath the center 
ridge, or any equally objectionable amount in other portions of the 
kernel; or lesser areas of dark discoloration affecting the appearance 
to an equal or greater extent;
    (e) Kernels which are dark amber in color;
    (f) Kernels which are not well cured;
    (g) Kernel spots when more than one dark spot is present on either 
half of the kernel, or when any such spot is more than one-eighth inch 
in greatest dimension;
    (h) Poorly developed kernels;
    (i) Shriveling when the surface of the kernel is very conspicuously 
wrinkled; and
    (j) Split or cracked shells when the shell is spread apart or will 
spread upon application of slight pressure.


Sec.  51.1417  Serious damage.

    Serious damage means any specific defect described in this section; 
or an equally objectionable variation of any one of these defects, or 
any other defect, or any combination of defects, which seriously 
detracts from the appearance or the edible or marketing quality of the 
individual pecan. The following defects shall be considered as serious 
damage:
    (a) Adhering hull material or dark stains affecting an aggregate of 
more than 20 percent of the individual shell;
    (b) Broken shells when the missing portion of shell is greater in 
area than a circle one-fourth inch in diameter;
    (c) Dark discoloration of the skin which is darker than dark amber 
over more than 25 percent of the surface of the kernel;
    (d) Decay affecting any portion of the kernel;
    (e) Insects, web, frass, or the kernel shows distinct evidence of 
insect feeding on the kernel;
    (f) Internal flesh discoloration of a dark shade extending more 
than one-third the length of the kernel beneath the ridge, or an 
equally objectionable amount of dark discoloration in other portions of 
the kernel;
    (g) Kernel spots when more than three dark spots on either half of 
the kernel, or when any spot or the aggregate of two or more spots on 
one of the halves of the kernel affects more than 10 percent of the 
surface;
    (h) Mold, on the surface or inside the kernel, which is plainly 
visible without magnification;
    (i) Rancidity \1\ when the kernel is distinctly rancid to the 
taste. Staleness of flavor shall not be classed as rancidity;
    (j) Undeveloped kernels which are blank (complete shell containing 
no kernel); and
    (k) Worm holes when penetrating the shell.
    Note to Sec.  51.1417(i):

    \1\ Refers to the tendency of the oil in a pecan kernel to 
become tainted as a result of oxidation or hydrolysis. Industry 
measures to determine the tendency of a kernel to become rancid 
include testing the kernel's peroxide and free fatty acid values. 
Peroxide values should be less than 5 mEq/kg and free fatty acids 
acid value should be less than 1 percent. These analyses are not 
performed in determination of grade.


Sec.  51.1418   Inedible kernels.

    Inedible kernels means that the kernel or pieces of kernels are 
rancid, moldy,

[[Page 70388]]

decayed, injured by insects or otherwise unsuitable for human 
consumption.
0
3. Revise Subpart N--United States Standards for Grades of Shelled 
Pecans to read as follows:

Subpart N--United States Standards for Grades of Shelled Pecans

Sec.

Grades

Sec.  51.1430 U.S. Extra Fancy.
Sec.  51.1431 U.S. Fancy.
Sec.  51.1432 U.S. Choice.
Sec.  51.1433 U.S. Standard.

Color Classifications

Sec.  51.1434 Color classifications.

Size Classifications

Sec.  51.1435 Size classifications for halves.
Sec.  51.1436 Size classifications for pieces.

Tolerances for Defects

Sec.  51.1437 Tolerances for defects.

Applications of Standards

Sec.  51.1438 Application of standards.

Definitions

Sec.  51.1439 Premier half-kernel (Premier halves).
Sec.  51.1440 Half-kernel (Halves).
Sec.  51.1441 Piece.
Sec.  51.1442 Meal and flour.
Sec.  51.1443 Well dried.
Sec.  51.1444 Well developed.
Sec.  51.1445 Fairly well developed.
Sec.  51.1446 Poorly developed.
Sec.  51.1447 Uniform in color.
Sec.  51.1448 Fairly uniform in color.
Sec.  51.1449 Uniform in size.
Sec.  51.1450 Fairly uniform in size.
Sec.  51.1451 Foreign material.
Sec.  51.1452 Damage.
Sec.  51.1453 Serious damage.

Subpart N--United States Standards for Grades of Shelled Pecans

Grades


Sec.  51.1430  U.S. Extra Fancy.

    ``U.S. Extra Fancy'' consists of pecan kernels which meet the 
following requirements:
    (a) For quality:
    (1) Well dried;
    (2) Moisture content shall not be more than 4.5 percent, unless 
otherwise specified;
    (3) Well developed;
    (4) Uniform in color;
    (5) Not darker than ``light;''
    (6) Free from damage by any cause; and
    (7) Comply with tolerances for defects (see Sec.  51.1437).
    (b) For size:
    (1) Uniform in size; and
    (2) Conform to size classification or count specified.


Sec.  51.1431  U.S. Fancy.

    ``U.S. Fancy'' consists of pecan kernels which meet the following 
requirements:
    (a) For quality:
    (1) Well dried;
    (2) Moisture content shall not be more than 4.5 percent, unless 
otherwise specified;
    (3) Fairly well developed;
    (4) Uniform in color;
    (5) Not darker than ``light amber,'' unless specified to a lighter 
color classification;
    (6) Free from damage by any cause; and
    (7) Comply with tolerances for defects (see Sec.  51.1437).
    (b) For size:
    (1) Uniform in size; and
    (2) Conform to size classification or count specified.


Sec.  51.1432   U.S. Choice.

    ``U.S. Choice'' consists of pecan kernels which meet the following 
requirements:
    (a) For quality:
    (1) Well dried;
    (2) Moisture content shall not be more than 4.5 percent, unless 
otherwise specified;
    (3) Not poorly developed;
    (4) Fairly uniform in color;
    (5) Not darker than ``amber,'' unless specified to a lighter color 
classification;
    (6) Free from damage by any cause; and
    (7) Comply with tolerances for defects (see Sec.  51.1437).
    (b) For size:
    (1) Fairly uniform in size; and
    (2) Conform to size classification or count specified.


Sec.  51.1433  U.S. Standard.

    ``U.S. Standard'' consists of pecan kernels which meet the 
following requirements:
    (a) For quality:
    (1) Well dried;
    (2) Moisture content shall not be more than 4.5 percent, unless 
otherwise specified;
    (3) No requirement for fullness of kernel;
    (4) No requirement for uniformity of color;
    (5) May contain kernels ``dark amber'' or darker, unless specified 
to a lighter color classification;
    (6) Free from damage by any cause; and
    (7) Comply with tolerances for defects (see Sec.  51.1437).
    (b) For size:
    (1) No uniformity in size; and
    (2) Conform to size classification or count specified.

Color Classifications


Sec.  51.1434  Color classifications.

    (a) The skin color of pecan kernels are described in terms of the 
color classifications provided in this section. When specified to a 
lighter color classification, that color may be used to describe the 
lot in connection with the grade.
    (1) Light means that the kernel is mostly golden color or lighter, 
with not more than 25 percent of the surface darker than golden, and 
none of the surface darker than light brown.
    (2) Light amber means that the kernel has more than 25 percent of 
the surface light brown, but not more than 25 percent of surface darker 
than light brown, and none of the surface darker than medium brown.
    (3) Amber means that the kernel has more than 25 percent of the 
surface medium brown, but not more than 25 percent of surface darker 
than medium brown, and none of the surface darker than dark brown (very 
dark brown or blackish-brown discoloration).
    (4) Dark amber means that the kernel has more than 25 percent of 
the surface dark brown, but not more than 25 percent of surface darker 
than dark brown (very dark brown or blackish-brown discoloration).
    (b) U.S. Department of Agriculture kernel color standards, PEC-MC-
1, illustrate the color intensities implied by the terms ``golden,'' 
``light brown,'' ``medium brown,'' and ``dark brown'' referred to in 
paragraph (a) of this section. The color standards are available at: 
https://www.ams.usda.gov/grades-standards.
    Size Classifications


Sec.  51.1435  Size classifications for halves.

    The size of pecan halves in a lot may be specified in accordance 
with one of the size classifications shown in Table 1 to this section.

                        Table 1 to Sec.   51.1435
------------------------------------------------------------------------
     Size  classification  for halves        Number of halves per pound
------------------------------------------------------------------------
Mammoth...................................  250 or less.
Junior Mammoth............................  251-350.
Jumbo.....................................  351-450.
Large.....................................  451-550.
Medium....................................  551-650.
Topper....................................  651-750.
King Topper...............................  751 or more.
------------------------------------------------------------------------
 In lieu of the size classifications in this table, the size of pecan
  halves in a lot may be specified in terms of the number of halves or a
  range of number of halves per pound. For example, ``400'' or ``600-
  700.''

    (a) Halves per pound.

[[Page 70389]]

    The number of halves per pound shall be based upon the weight of 
half-kernels after all pieces, meal and flour, shell, center wall, and 
foreign material have been removed.
    (b) Tolerance for count per pound.
    In order to allow for variations incident to proper sizing, a 
tolerance shall be permitted as follows:
    (1) When an exact number of halves per pound is specified, the 
actual count per pound may vary not more than 5 percent from the 
specified number, and
    (2) When any size classification shown in Table 1 to this section 
or a range in count per pound is specified, no tolerance shall be 
allowed for counts outside of the specified range.
    (c) Tolerances for pieces, meal, and flour.
    In order to allow for variations incident to proper sizing and 
handling, tolerances are provided for pieces, meal, and flour in any 
lot of halves. The tolerances, by weight, are as shown in Table 2 to 
this section.

                                            Table 2 to Sec.   51.1435
----------------------------------------------------------------------------------------------------------------
                                    U.S. extra      U.S. extra
                                   fancy premier   fancy halves     U.S. fancy      U.S. choice    U.S. standard
                                    halves  (%)         (%)         halves  (%)     halves  (%)     halves  (%)
----------------------------------------------------------------------------------------------------------------
Tolerances for Pieces, Meal, and
 Flour:
    A. Less than \7/8\ half-                  10  ..............  ..............  ..............  ..............
     kernel.....................
    B. Less than \3/4\ half-      ..............              10              15              20              20
     kernel.....................
    C. Less than \1/2\ half-
     kernel
    (included in A.--U.S. Extra                3               3               5               5               5
     Fancy Premier Halves)
     (included in B.--U.S. Extra
     Fancy Halves, U.S. Fancy
     Halves, U.S. Choice Halves,
     and U.S. Standard Halves)..
    D. Less than 4/64''                        1               1               1               1               1
     (included in C.)...........
----------------------------------------------------------------------------------------------------------------

Sec.  51.1436   Size classifications for pieces.

    The size of pecan pieces in a lot may be specified in accordance 
with one of the size classifications shown in Table 1 to this section. 
Sizes are measured using a round-hole screen.

                                            Table 1 to Sec.   51.1436
----------------------------------------------------------------------------------------------------------------
                                        Maximum diameter (will pass through    Minimum diameter  (will not pass
          Size classification             round  opening of the  following      through round  opening of the
                                                     diameter)                       following diameter)
----------------------------------------------------------------------------------------------------------------
Extra-Large Pieces....................  No limitation......................  32/64 inch.
Large Pieces..........................  32/64 inch.........................  24/64 inch.
Halves and Pieces.....................  No limitation......................  20/64 inch.
Medium Pieces.........................  24/64 inch.........................  16/64 inch.
Small Pieces..........................  16/64 inch.........................  12/64 inch.
Topping Pieces........................  12/64 inch.........................  8/64 inch.
Granules..............................  8/64 inch..........................  4/64 inch.
----------------------------------------------------------------------------------------------------------------
 In lieu of the size classifications in this table, the size of pieces in a lot may be specified in terms of
  minimum diameter, or as a range described in terms of minimum and maximum diameters expressed in sixty-fourths
  of an inch.

    (a) Tolerances for size of pieces.
    In order to allow for variations incident to proper sizing, 
tolerances are provided for pieces in a lot which fail to meet the 
requirements of any size specified. The tolerances, by weight, are as 
follows:
    (1) U.S. Extra Fancy pieces and U.S. Fancy pieces:
    Not more than 15 percent of the lot may fall outside of the size 
range in Table 1 to this section. Further, not more than 1 percent of 
the pieces, excluding Topping Pieces and Granules, may pass through an 
eight sixty-fourths of an inch round hole screen.
    (2) U.S. Choice pieces:
    Not more than 20 percent of the lot may fall outside of the size 
range in Table 1 to this section. Further, not more than 2 percent of 
the pieces, excluding Topping Pieces and Granules, may pass through an 
eight sixty-fourths of an inch round hole screen.
    (3) U.S. Standard pieces:
    Not more than 25 percent of the lot may fall outside of the size 
range in Table 1 to this section. Further, not more than 2 percent of 
the pieces, excluding Topping Pieces and Granules, may pass through an 
eight sixty-fourths of an inch round hole screen.

Tolerances for Defects


Sec.  51.1437  Tolerances for defects.

    In order to allow for variations incident to proper grading and 
handling in each of the foregoing grades, the following tolerances, by 
weight, are as follows:
    (a) U.S. Extra Fancy grade:
    (1) No foreign material;
    (2) 0.01 percent for shell, and center wall;
    (3) Zero tolerance is provided for pecan weevil larvae;
    (4) 3 percent for portions of kernels which are ``light amber'' or 
darker color, or darker than any specified lighter color 
classification, but which are not otherwise defective; and
    (5) 3 percent for portions of kernels which fail to meet the 
remaining requirements of the grade, including therein not more than 
0.50 percent (one-half of 1 percent) for defects causing serious 
damage: Provided, That any unused portion of this tolerance may be 
applied to increase the tolerance for kernels which are ``light amber'' 
or darker color, or darker than any specified lighter color 
classification.
    (b) U.S. Fancy grade:

[[Page 70390]]

    (1) No foreign material;
    (2) 0.01 percent for shell and center wall;
    (3) No more than 2 pecan weevil larvae;
    (4) 5 percent for portions of kernels which are ``amber'' or darker 
color, or darker than any specified lighter color classification, but 
which are not otherwise defective; and
    (5) 5 percent for portions of kernels which fail to meet the 
remaining requirements of the grade, including therein not more than 
0.50 percent (one-half of 1 percent) for defects causing serious 
damage, including pecan weevil larvae: Provided, That any unused 
portion of this tolerance may be applied to increase the tolerance for 
kernels which are ``amber'' or darker color, or darker than any 
specified lighter color classification.
    (c) U.S. Choice grade:
    (1) No foreign material;
    (2) 0.01 percent for shell and center wall;
    (3) No more than 5 pecan weevil larvae;
    (4) 15 percent for portions of kernels which are ``dark amber'' or 
darker color, or darker than any specified lighter color 
classification, but which are not otherwise defective; and
    (5) 8 percent for portions of kernels which fail to meet the 
remaining requirements of the grade, including therein not more than 1 
percent for defects causing serious damage, including pecan weevil 
larvae.
    (d) U.S. Standard grade:
    (1) No foreign material;
    (2) 0.01 percent for shell and center wall;
    (3) 25 percent for portions of kernels which are darker than a 
specified color classification, but which are not otherwise defective; 
and
    (4) 15 percent for portions of kernels which fail to meet the 
remaining requirements of the grade, including therein not more than 1 
percent for defects causing serious damage, including pecan weevil 
larvae.

Application of Standards


Sec.  51.1438  Application of standards.

    The grade of a lot of shelled pecans shall be determined on the 
basis of a composite sample drawn at random from containers in various 
locations in the lot. However, any identifiable container or number of 
containers in which the pecans are obviously of a quality or size 
materially different from that in the majority of containers, shall be 
considered as a separate lot, and shall be sampled and graded 
separately.

Definitions


Sec.  51.1439   Premier half-kernel (Premier halves).

    Premier half-kernel (Premier halves) means one of the separated 
halves of an entire pecan kernel with not more than one-eighth of its 
original volume missing, exclusive of the portion which formerly 
connected the two halves of the kernel.


Sec.  51.1440   Half-kernel (Halves).

    Half-kernel (Halves) means one of the separated halves of an entire 
pecan kernel with not more than one-fourth of its original volume 
missing, exclusive of the portion which formerly connected the two 
halves of the kernel.


Sec.  51.1441   Piece.

    Piece means a portion of a kernel which is less than three-fourths 
of a half-kernel, but which will not pass through a round opening four 
sixty-fourths (4/64) of an inch in diameter.


Sec.  51.1442  Meal and flour.

    Meal and flour means fragments of kernels which will pass through a 
round opening four sixty-fourths (4/64) of an inch in diameter.


Sec.  51.1443  Well dried.

    Well dried means that the portion of kernel is firm and crisp, not 
pliable, or leathery.


Sec.  51.1444   Well developed.

    Well developed means that the kernel is full-meated through its 
width and length.


Sec.  51.1445  Fairly well developed.

    Fairly well developed means that the kernel is full-meated in over 
50 percent of its width and length.


Sec.  51.1446  Poorly developed.

    Poorly developed means that the kernel is full-meated in less than 
25 percent of its width and length.


Sec.  51.1447  Uniform in color.

    Uniform in color means that 95 percent or more of the kernels in 
the lot have skin color within the range of one or two color 
classifications.


Sec.  51.1448  Fairly uniform in color.

    Fairly uniform in color means that 85 percent or more of the 
kernels in the lot have skin color within the range of one or two color 
classifications.


Sec.  51.1449  Uniform in size.

    Uniform in size means that, in a representative sample of 100 
halves, the 10 smallest halves weigh not less than 25 percent as much 
as the 10 largest halves.


Sec.  51.1450  Fairly uniform in size.

    Fairly uniform in size means that, in a representative sample of 
100 halves, the 10 smallest halves weigh not less than 50 percent as 
much as the 10 largest halves.


Sec.  51.1451  Foreign material.

    Foreign material includes rocks, wood, glass, plastic, or any 
similar material. It does not include hard shell, center wall, or pecan 
weevil larvae.


Sec.  51.1452  Damage.

    Damage means any specific defect described in this section; or an 
equally objectionable variation of any one of these defects, or any 
other defect, or any combination of defects, which materially detracts 
from the appearance or the edible or marketing quality of the 
individual portion of the kernel or of the lot as a whole. The 
following defects shall be considered as damage:
    (a) Adhering material from inside the shell when attached to more 
than one-fourth of the surface on one side of the half-kernel or piece;
    (b) Dust or dirt adhering to the kernel when conspicuous;
    (c) Internal flesh discoloration of a medium shade of gray or brown 
extending more than one-fourth the length of the half-kernel or piece, 
or lesser areas of dark discoloration affecting the appearance to an 
equal or greater extent;
    (d) Kernel which is not well dried;
    (e) Kernel which is ``dark amber'' or darker color;
    (f) Kernel having more than one dark kernel spot, or one dark 
kernel spot more than one-eighth inch in greatest dimension;
    (g) Poorly developed kernel; and
    (h) Shriveling when the surface of the kernel is very conspicuously 
wrinkled.


Sec.  51.1453   Serious damage.

    Serious damage means any specific defect described in this section; 
or an equally objectionable variation of any one of these defects, or 
any other defect, or any combination of defects, which seriously 
detracts from the appearance or the edible or marketing quality of the 
individual portion of kernel or of the lot as a whole. The following 
defects shall be considered as serious damage:
    (a) Adhering material from inside the shell when attached to more 
than one-half of the surface on one side of the half-kernel or piece;
    (b) Any plainly visible mold;
    (c) Dark kernel spots when more than three are on the kernel, or 
when any dark kernel spot or the aggregate of two or more spots affect 
an area of more than 10 percent of the surface of the half-kernel or 
piece;

[[Page 70391]]

    (d) Dark skin discoloration, darker than ``dark brown,'' when 
covering more than one-fourth of the surface of the half-kernel or 
piece;
    (e) Decay affecting any portion of the kernel;
    (f) Insects, web, or frass or any distinct evidence of insect 
feeding on the kernel;
    (g) Internal discoloration, which is dark gray, dark brown, or 
black and extends more than one-third the length of the half-kernel or 
piece; and
    (h) Rancidity \1\ when the kernel is distinctly rancid to taste. 
Staleness of flavor shall not be classed as rancidity.
    Note to Sec.  1453(h):

    \1\ Refers to the tendency of the oil in a pecan kernel to 
become tainted as a result of oxidation or hydrolysis. Industry 
measures to determine the tendency of a kernel to become rancid 
include testing the kernel's peroxide and free fatty acid values. 
Peroxide values should be less than 5 mEq/kg and free fatty acids 
acid value should be less than 1 percent. These analyses are not 
performed in determination of grade.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-22341 Filed 10-10-23; 8:45 am]
BILLING CODE 3410-02-P