Nectarines and Peaches Grown in California; Finalize Revised Handling Requirements for Fresh Nectarines and Peaches

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket Nos. FV94-916-1-FIR and FV94-916-2-FIR]

Nectarines and Peaches Grown in California; Finalize Revised

Handling Requirements for Fresh Nectarines and Peaches

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule finalizes without change two interim final rules

which revised the handling requirements for California nectarines and

peaches by expanding the regulatory periods and by modifying the grade,

maturity, size, container, and pack requirements for fresh shipments of

these fruits, beginning with 1994 season shipments. This finalization

will enable handlers to continue shipping fresh nectarines and peaches

meeting consumer needs in the interest of producers, handlers, and

consumers of these fruits.

EFFECTIVE DATE: October 13, 1994.

FOR FURTHER INFORMATION CONTACT: Mark Kreaggor, Marketing Specialist,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, DC 20090-6456;

telephone: (202) 720-5127; or Terry Vawter, California Marketing Field

Office, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno,

California, 93721; telephone: (209) 487-5901.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement and Marketing Order Nos. 916 and 917 [7 CFR Parts 916 and

917] regulating the handling of nectarines and peaches grown in

California, 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 (Department) is issuing this rule in

conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12778, 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 the Secretary 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 the Secretary 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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after the date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this action on small

entities. The purpose of the RFA is to fit regulatory actions to the

scale of business subject to such actions in order that small

businesses will not be unduly or disproportionately burdened. Marketing

orders issued pursuant to the Act, and rules issued thereunder, are

unique in that they are brought about through group action of

essentially small entities acting on their own behalf. Thus, both

statutes have small entity orientation and compatibility.

There are about 300 California nectarine and peach handlers subject

to regulation under the orders covering nectarines and peaches grown in

California, and about 1,800 producers of these fruits in California.

Small agricultural producers have been defined by the Small Business

Administration [13 CFR 121.601] as those having annual receipts of less

than $500,000, and small agricultural service firms are defined as

those whose annual receipts are less than $5,000,000. A majority of

these handlers and producers may be classified as small entities.

The Nectarine Administrative Committee (NAC) recommended revision

of the handling requirements for California nectarines, and the Peach

Commodity Committee (PCC) recommended revision of the handling

requirements for California peaches. These committees meet prior to and

during each season to review the rules and regulations effective on a

continuous basis for California nectarines and peaches under the

orders. These committee meetings are open to the public, and interested

persons may express their views at these meetings. The Department

reviews committee recommendations and information, as well as

information from other sources, and determines whether modification,

suspension, or termination of the rules and regulations would tend to

effectuate the declared policy of the Act.

This rule finalizes two interim final rules that revised the

handling requirements for nectarines in Sec. 916.350 California

Nectarine Container and Pack Regulation [7 CFR 916.350], and in

Sec. 916.365 California Nectarine Grade and Size Regulation [7 CFR

916.365], and for peaches in Sec. 917.442 California Peach Container

and Pack Regulation [7 CFR 917.442] and in Sec. 917.459 California

Peach Grade and Size Regulation [7 CFR 917.459]. The first interim

final rule was issued on March 29, 1994, and published in the Federal

Register [59 FR 15835, April 5, 1994], and the second interim final

rule was issued on June 9, 1994, and published in the Federal Register

[59 FR 31118, June 17, 1994].

The first interim final rule provided a 30-day comment period

ending May 5, 1994, and two comments were received. The first comment

received was from John Kovacevich, Jr., a California peach grower and

shipper, requesting a change in the peach grade requirements to permit

handlers to ship peaches with additional amounts of open sutures. The

change requested by this commentor was included in the first interim

final rule.

The second comment received was from Harold McClarty of The HMC

Group of Kingsburg, California, supporting the weight-count revisions

made in the handling requirements for fresh nectarines and peaches by

the first interim final rule, since such revisions will be beneficial

when they packed fruit in volume-filled containers.

The second interim final rule provided a 30-day comment period

ending July 18, 1994, and one comment was received. The comment was

received from Gary W. Van Sickle, Field Director for the PCC and the

NAC, reaffirming the PCC's and the NAC's support of the revised pack

requirements contained in the second interim final rule.

Regulatory Periods (Nectarines)

The first interim final rule amended paragraph (a) in Sec. 916.350

and paragraph (a) in Sec. 916.356 to change the regulatory periods in

each of these sections to April 1 through October 31 each year, so that

all nectarine shipments made each season are covered by these

regulatory requirements. Correspondingly, paragraph (a)(7) of

Sec. 916.356 was revised to change the beginning date of the regulatory

requirements to April 1 from April 15 each year. Handlers ship fresh

nectarines during the April 1-April 15 period when the harvest season

begins early. The NAC unanimously recommended this change. Prior to

amendment, Secs. 916.350 and 916.356 were effective for the period

April 15 through October 31 each year.

Container and Pack Requirements (Nectarines)

Section 916.350 specifies container and pack requirements for fresh

nectarine shipments. Paragraph (a)(4)(iv) of Sec. 916.350 specifies the

tray-pack size designations which must be marked on loose-filled or

tight-filled containers, depending on the size of the fruit. The size

designations specify the maximum number of nectarines in a 16-pound

sample for each tray-pack size designation. The first interim final

rule revised paragraph (a)(4)(iv) of Sec. 916.350 by modifying Table I

to specify weight-count standards for early-season and mid-season

nectarine varieties, and by adding a new Table 2 to specify weight-

count standards for late-season nectarine varieties.

The NAC recommended these revised container marking requirements

for nectarines after a comprehensive review of the appropriate size

pack-count relationships between the tray-pack containers and loose-

filled or tight-filled containers for all nectarine varieties. The

revised provisions more precisely reflect the characteristics of

different varieties of fruit during the course of the season.

The first interim final rule also revised Sec. 916.350 by adding a

proviso to paragraph (a)(4)(iv), and revises Sec. 916.356 by

redesignating current paragraph (b) as (c) and adding a new paragraph

(b) to that section. These revisions specify the procedure to be used

in determining whether nectarines meet the minimum size requirements

specified for each size category in this section when applying the 16-

pound sample requirements. Under this procedure, a sample consisting of

one-half of the number of fruit specified for a 16-pound sample for a

particular size category shall be used, provided such sample weighs at

least 8 pounds. When one-half the specified number of fruit in a sample

results in a number ending with one-half a fruit, the smaller full

number of fruit is used to determine the sample weight. If a sample

fails with respect to minimum size requirements on the basis of an 8-

pound sample, a full 16-pound sample must be used to determine if the

fruit meets minimum size requirements.

The NAC recommended this sampling procedure change after

determining that the size of nectarines could be adequately determined

by using an 8-pound sample in most instances, and finding that

application of this procedure would reduce inspection time and

inspection costs.

The second interim final rule further revised Sec. 916.350 by

adding a new proviso to paragraph (a)(1) specifying that the nectarines

in any volume-filled container need only be filled to within one inch

of the top of the container. The second interim final rule also removed

the proviso in paragraph (a)(1) of Sec. 916.350 reading ``That

nectarines in any container shall be fairly uniform in size'', because

such requirements are included within the definition of ``standard

pack'' in the United States Standards for Grades of Nectarines, and

therefore are not needed in this paragraph.

The NAC recommended these revised pack requirements for fresh

nectarines in volume-filled containers after a comprehensive review of

changes in the nectarine industry packing practices over the years, and

the need to make appropriate changes in the pack requirements to reduce

bruising of the fruit due to excessively tight packs. The revision

provided handlers with more flexibility in packing their nectarines and

selecting the appropriate size container for certain volume-filled

packs to help prevent fruit bruising.

Maturity Requirements (Nectarines)

Section 916.356 specifies maturity guides for fresh nectarines in

paragraph (a)(1)(i), including Table I, for fruit being inspected and

certified as meeting the maturity requirements for ``well matured''

fruit. Such maturity guides (e.g., color chips) are specified in Table

I of Sec. 916.356 for nectarines. The first interim final rule revised

Table I of paragraph (a)(1)(i) of Sec. 916.356 for nectarines to add

maturity guides for 18 nectarine varieties and to change the maturity

guide for two nectarine varieties.

The NAC recommended these maturity guide changes for these

nectarine varieties based on a continuing review of their individual

maturity characteristics, and the identification of the appropriate

color chip corresponding to the ``well matured'' level of maturity for

such varieties.

Size Requirements (Nectarines)

Section 916.356 specifies size requirements for fresh nectarines in

paragraphs (a)(2) through (a)(9). The first interim final rule revised

Sec. 916.356 to establish variety-specific size requirements for seven

nectarine varieties that were produced in commercially significant

quantities of more than 10,000 packages for the first time during the

1993 season. Paragraph (a)(3) was revised to include the May Kist

variety; and paragraph (a)(6) of Sec. 916.356 was revised to include

the Arctic Rose, Del Rio Rey, Kay Diamond, Late Red Jim, Prima Diamond,

and Red Glen varieties.

The first interim final rule also revised Sec. 916.356 to remove

five nectarine varieties from the variety-specific size requirements

specified in the section, because less than 5,000 packages of each of

these varieties were produced during the 1993 season. Paragraph (a)(4)

of that section was revised to remove the Apache and Early May Grande

nectarine varieties; and paragraph (a)(6) was revised to remove the

Nectarine #4, Tasty Free, and 9-86-04-87 nectarine varieties. The

nectarine varieties removed from the nectarine variety-specific list

became subject to the non-listed variety size requirements specified in

paragraphs (a)(7), (a)(8), and (a)(9) of Sec. 916.356.

The first interim final rule also lowered the minimum size

requirement for the Zee Grand variety by permitting as many as 88

nectarines to be packed in a lug box rather than 84 nectarines, and as

many as 83 nectarines when packed otherwise rather than 75 nectarines.

This was accomplished by reassigning that variety to paragraph (a)(4)

from paragraph (a)(5) in Sec. 916.356. The NAC recommended this change

based on a more accurate evaluation of this variety's sizing and

maturity characteristics.

Further, in Sec. 916.356, paragraphs (a)(6)(i) and (a)(9)(i) were

revised to permit as many as 84 nectarines to be packed in a No. 22D

standard lug box if they are ``well matured'', and paragraphs

(a)(6)(ii) and (a)(9)(ii) were revised to permit as many as 75

nectarines in a 16-pound sample if they are ``well matured''. These

changes permit late-season nectarine varieties to be shipped to the

fresh market at a slightly smaller size than in past seasons, if they

meet the higher ``well matured'' maturity standard. The higher maturity

standard is important for such smaller size fruit, because it will

assure that the smaller fruit is of acceptable maturity and quality to

be shipped to the fresh market in the interest of growers, handlers,

and consumers.

In addition, the first interim final rule changed the minimum size

requirements for several varieties of nectarines packed in loose-filled

and tight-filled containers by revising the count-size for nectarines

specified in paragraphs (a)(2)(ii), (a)(3)(ii), (a)(4)(ii), (a)(5)(ii),

(a)(7)(ii), and (a)(8)(ii). These size changes correspond to the

weight-count changes made in column 2 of both Table I for early-season

and mid-season nectarine varieties, and Table 2 for late-season

nectarine varieties cited in paragraph (a)(4)(iv) of Sec. 916.350.

The NAC recommended these changes in the minimum size requirements

based on a continuing review of the sizing and maturity relationships

for these nectarine varieties, and consumer acceptance levels for

various sizes of fruit. The first interim final rule was designed to

establish minimum size requirements for fresh nectarines consistent

with expected crop and market conditions.

Regulatory Periods (Peaches)

The first interim final rule amended paragraph (a) in Sec. 917.442

and paragraph (a) in Sec. 917.459 to change the regulatory periods in

each of these sections to April 1 through November 23 each year, so

that all peach shipments made each season are covered by these

regulatory requirements. Correspondingly, paragraph (b) of Sec. 917.459

was revised to change the beginning date of the regulatory requirements

to April 1 from April 15 each year. Handlers ship fresh peaches during

the April 1-April 15 period when the harvest season begins early. The

PCC unanimously recommended this change. Prior to amendment,

Secs. 917.442 and 917.459 were effective for the period April 15

through November 23 each year.

Container and Pack Requirements (Peaches)

Section 917.442 currently specifies container and pack requirements

for fresh peach shipments. Paragraph (a)(4)(iv) of Sec. 917.442

specifies the tray-pack size designations which must be marked on

loose-filled or tight-filled containers, depending on the size of the

fruit. The size designations specify the maximum number of peaches in a

16-pound sample for each tray pack size designation. The first interim

final rule revised paragraph (a)(4)(iv) of Sec. 917.442 by modifying

Table I to specify weight-count standards for early-season and mid-

season peach varieties, and by adding a new Table 2 to specify weight-

count standards for late-season peach varieties.

The PCC recommended these revised container marking requirements

for peaches after a comprehensive review of the appropriate size pack-

count relationships between the tray-pack containers and loose-filled

or tight-filled containers for all peach varieties. The revised

provisions more precisely reflect the characteristics of different

varieties of fruit during the course of the season.

The first interim final rule also revised Sec. 917.442 by adding a

proviso to paragraph (a)(4)(iv), and revised Sec. 917.459 by

redesignating current paragraph (d) as (e) and by adding a new

paragraph (d) to that section. These revisions specify the procedure to

be used in determining whether peaches meet the minimum size

requirements specified for each size category in this section when

applying the 16-pound sample requirement. Under this procedure a sample

consisting of one-half of the number of fruit specified for a 16-pound

sample for a particular size category shall be used, provided such

sample weighs at least 8 pounds. When one-half the specified number of

fruit in a sample results in a number ending with one-half a fruit, the

smaller full number of fruit is used to determine the sample weight. If

a sample fails with respect to minimum size requirements on the basis

of an 8-pound sample, a full 16-pound sample must be used to determine

if the fruit meets the minimum size requirements.

The PCC recommended this sampling procedure change after

determining that the size of peaches could be adequately determined by

using an 8-pound sample in most instances, and finding that application

of this procedure would reduce inspection time and inspection costs.

The second interim final rule further revised Sec. 917.442 by

adding a new proviso to paragraph (a)(1) specifying that the peaches in

any volume-filled container need only be filled to within one inch of

the top of the container. The PCC recommended these revised pack

requirements for fresh peaches in volume-filled containers after a

comprehensive review of changes in the peach industry packing practices

over the years, and the need to make appropriate changes in the pack

requirements to reduce bruising of the fruit due to excessively tight

packs. The revision provided handlers with more flexibility in packing

their peaches and selecting the appropriate size container for certain

volume-filled packs to help prevent fruit bruising.

Grade Requirements (Peaches)

Section 917.459 specifies grade requirements for peaches in

paragraph (a)(1), requiring peaches shipped fresh to meet the

requirements of the U.S. No. 1 grade. The first interim final rule

revised paragraph (a)(1) of Sec. 917.459 to provide an additional 25

percent tolerance for fruit damaged by open sutures, but not seriously

damaged, in addition to the 10 percent general lot tolerance currently

permitted under the U.S. No. 1 grade.

The PCC recommended this change to permit handlers to ship peaches

with additional amounts of open sutures. Open sutures are not

considered to be a serious grade defect since they affect only the

appearance of the fruit. The open suture condition occurs infrequently

in peaches and is most likely due to unusual weather and climatic

conditions. However, this condition can cause considerable economic

loss to growers when it does occur, because it sometimes affects a

large portion of their crop.

Maturity Requirements (Peaches)

Section 917.459 specifies maturity guides for fresh peaches in

paragraph (a)(1)(i), including Table I, for fruit being inspected and

certified as meeting the maturity requirements for ``well matured''

fruit. Such maturity guides (e.g., color chips) are specified in Table

I of Sec. 917.459 for peaches. The first interim final rule revised

Table I of paragraph (a)(1)(i) of Sec. 917.459 for peaches to add

maturity guides for 19 peach varieties and to change the maturity guide

for one peach variety.

The PCC recommended these maturity guide changes for these peach

varieties based on a continuing review of their individual maturity

characteristics, and the identification of the appropriate color chip

corresponding to the ``well matured'' level of maturity for such

varieties.

Size Requirements (Peaches)

Section 917.459 specifies size requirements for fresh peaches in

paragraphs (a)(2) through (a)(6), and paragraphs (b) and (c). The first

interim final rule revised Sec. 917.459 by redesignating current

paragraph (a)(6) as paragraph (a)(3) and current paragraphs (a)(3),

(a)(4), and (a)(5) as paragraphs (a)(4), (a)(5), and (a)(6),

respectively, so that the size regulations are in sequential order. The

first interim final rule also revised Sec. 917.459 to establish

variety-specific size requirements for five peach varieties that were

produced in commercially significant quantities of more than 10,000

packages for the first time during the 1993 season. In Sec. 917.459

redesignated paragraph (a)(5) was revised to include the Crimson Lady

and Rich May peach varieties; and redesignated paragraph (a)(6) was

revised to include the Fancy Lady, Snow Ball, and Sugar Lady peach

varieties.

The first interim final rule also revised Sec. 917.459 to remove

four peach varieties from the variety-specific size requirements

specified in that section, because less than 5,000 packages of each of

these varieties were produced during the 1993 season. In Sec. 917.459

redesignated paragraph (a)(5) of Sec. 917.459 was revised to remove the

Flavor Red peach variety; and redesignated paragraph (a)(6) was revised

to remove the July Lady, Red Cal, and Redglobe peach varieties. The

peach varieties removed from the variety-specific list became subject

to the non-listed variety size requirements specified in paragraphs (b)

and (c) of Sec. 917.459.

The first interim final rule also amended Sec. 917.459 by revising

paragraph (b) to change the ending date of the regulatory requirements

for the non-listed peach varieties referred to in that paragraph to

June 30 from July 2, and paragraph (c) to change the beginning date of

the regulatory requirements for the non-listed peach varieties referred

to in that paragraph to July 1 from July 3. These changes reflect the

sizing characteristics of such peach varieties.

Further, in Sec. 917.459 redesignated paragraph (a)(6)(i) was

revised to permit as many as 80 peaches to packed in a No. 22D standard

lug box if they are ``well matured'', and redesignated paragraph

(a)(6)(iii) was revised to permit as many as 73 peaches in a 16-pound

sample if they are ``well matured''. These changes permit certain late-

season peach varieties to be shipped to the fresh market at a slightly

smaller size than in past seasons, if they meet the higher ``well

matured'' maturity standard. The higher maturity standard is important

for such smaller size fruit, because it will assure that the smaller

fruit is of acceptable maturity and quality to be shipped to the fresh

market in the interest of growers, handlers, and consumers.

In addition, the first interim final rule changed the minimum size

requirements for several varieties of peaches packed in loose-filled

and tight-filled containers by revising the count-size for peaches

specified in paragraphs (a)(3)(iii), (a)(4)(iii), and (a)(5)(iii).

These size changes correspond to the weight-count changes made in

column 2 of both Table I for early-season and mid-season peach

varieties, and Table 2 for late-season peach varieties cited in

paragraph (a)(4)(iv) of Sec. 917.442.

The PCC recommended these changes in the minimum size requirements

based on a continuing review of the sizing and maturity relationships

for these peach varieties, and the consumer acceptance levels for

various sizes of fruit. The first interim final rule was designed to

establish minimum size requirements for fresh peaches consistent with

expected crop and market conditions.

This rule reflects the committees' and the Department's appraisal

of the need to finalize the revised handling requirements for

California nectarines and peaches, as specified. The Department's

determination is that this rule will have a beneficial impact on

producers, handlers, and consumers of California nectarines and

peaches.

This rule finalizes the revised handling requirements for fresh

California nectarines and peaches consistent with expected crop and

market conditions, and will help ensure that all shipments of these

fruits made each season will continue to meet acceptable handling

requirements established under each of these orders. This rule will

also help the California nectarine and peach industries continue to

provide fruit desired by consumers. This rule is designed to maintain

orderly marketing conditions for these fruits in the interest of

producers, handlers, and consumers.

Based on the above, the Administrator of the AMS has determined

that this rule will not have a significant economic impact on a

substantial number of small entities.

After consideration of all relevant matters presented, the

information and recommendations submitted by the committees, and other

information, it is found that the finalization, as hereinafter set

forth, will tend to effectuate the declared policy of the Act.

List of Subjects

7 CFR Part 916

Marketing agreements, Nectarines, Reporting and recordkeeping

requirements.

7 CFR Part 917

Marketing agreements, Peaches, Pears, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR Parts 916 and 917

are amended as follows:

PART 916--NECTARINES GROWN IN CALIFORNIA

1. Accordingly, the interim final rules amending 7 CFR Part 916

which were published at 59 FR 15835 on April 5, 1994, and at 59 FR

31118 on June 17, 1994, are each adopted as a final rule without

change.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

2. Accordingly, the interim final rules amending 7 CFR Part 917

which were published at 59 FR 15835 on April 5, 1994, and at 59 FR

31118 on June 17, 1994, are each adopted as a final rule without

change.

Dated: September 8, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-22614 Filed 9-12-94; 8:45 am]

BILLING CODE 3410-02-P