[Federal Register Volume 61, Number 43 (Monday, March 4, 1996)]
[Proposed Rules]
[Pages 8225-8227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4871]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 43 / Monday, March 4, 1996 / Proposed
Rules
[[Page 8225]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV95-916-5-PR]
Nectarines and Peaches Grown in California; Relaxation of Quality
Requirements for Fresh Nectarines and Peaches
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would relax, for the 1996 season only, the
quality requirements for California nectarines and peaches. This
proposal would establish a California Tree Fruit Agreement (CTFA)
Utility quality requirement. California nectarines and peaches are
currently subject to a minimum requirement of a modified U.S. No. 1
grade. The CTFA Utility quality requirement would be the same as a U.S.
No. 2 except that misshapened fruit and fruit with serious damage due
to scarring would be permitted. This proposed rule would also require
that containers of nectarines and peaches meeting the CTFA Utility
quality requirement be clearly marked ``CTFA Utility.'' This proposed
rule is intended to allow more nectarines and peaches into fresh market
channels.
DATES: Comments must be received by April 3, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room
2523-S, Washington, DC 20090-6456; or by facsimile at 202-720-5698. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection at the office of the Docket Clerk during regular
business hours.
FOR FURTHER INFORMATION CONTACT: Kenneth Johnson, 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) 720-2861; or Terry Vawter, Marketing Specialist,
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 proposed 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 proposed
rule in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This proposed rule is not intended to have
retroactive effect. This proposed 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 Department is proposing to establish, for the 1996 season only,
a California Tree Fruit Agreement (CTFA) Utility quality requirement
and a container marking requirement for shipments of fruit meeting CTFA
Utility.
Minimum grade requirements for fresh nectarines and peaches grown
in California are in effect under Sec. 916.356 and Sec. 917.459,
respectively. This rule would amend Secs. 916.356 and 917.459 by
revising paragraph (a)(1) under each section, to permit shipments of
fruit meeting CTFA Utility. CTFA Utility quality requirements are the
same as the U.S. No. 2 grade requirements as set forth in the U.S.
Standards for Grades of Nectarines [7 CFR 51.3145 through 51.3160] and
the U.S. Standards for Grades of Peaches [7 CFR 51.1210 through
51.1223], except that misshapened fruit and fruit with serious damage
due to scarring would be permitted. All other applicable size and
maturity requirements would remain in effect. CTFA Utility fruit would
be inspected by the Federal-State Inspection Service as meeting the
CTFA Utility quality requirements. CTFA
[[Page 8226]]
Utility fruit would be subject to assessment and all other requirements
of the orders. This rule would also amend Secs. 916.350 and 917.442 by
adding a paragraph to each section to specify that each package or
container of nectarines and peaches shipped, meeting the requirements
of the newly established CTFA Utility quality requirements, must be
conspicuously marked with the words ``CTFA Utility''.
Shipments of California nectarines and peaches are subject to
minimum grade, size, and maturity requirements under the provisions of
Federal Marketing Orders 916 (section 916.356) during the period April
1 through October 31 each year and 917 (section 917.459) during the
period April 1 through November 23 each year. Currently, nectarine
shipments are required to meet the requirements of U.S. No. 1 except
less scarring is permitted than the U.S. No. 1 Grade but the tolerance
for fruit not well formed is greater than the U.S. No. 1 Grade.
Different minimum size requirements are in effect for different
groupings of nectarine varieties. Currently peach shipments are
required to meet the requirements of U.S. No. 1 Grade except there is
an additional tolerance for fruit damage caused by open sutures. Also,
different minimum size requirements are in effect for different
groupings of peach varieties. Both the nectarine and peach regulations
allow the shipment of fruit one size smaller than the specified minimum
if the fruit meets higher maturity requirements. Both nectarine and
peach shipments are subject to container, pack, and container marking
requirements.
Prior to the 1995 shipping season the Nectarine Administrative and
Peach Commodity Committees (Committees) considered recommending a
change in the nectarine and peach regulations to allow a utility grade
for these fruits (Utility grade is a lower quality fruit than U.S. No.
1). During the 1995 season, changes were made to allow use of the
utility grade for California plums which are regulated under a State
program. The plum utility grade was based on the California
Agricultural Code requirements. The Committees voted not to recommend a
utility grade for nectarines and peaches in the 1995 season. The
Committees did, however, hire Dr. Dennis Nef, California State
University, Fresno, to conduct a research project to study the impact
of a utility grade for nectarines and peaches. The Committees also
believed that the industry experiences from the plum utility grade
would be helpful in making future recommendations for a utility grade
for nectarines and peaches. The report prepared by Dr. Nef was
presented to the Nectarine and Peach Grade and Size Subcommittees in
October 1995. The report found that about 22 percent of the peaches
sampled in packinghouse cull bins in 1995 would have met California
agricultural code requirements. Of the nectarines sampled from
packinghouse culls in that year, about 6 percent would have met
California agricultural code requirements and an additional 14 percent
failed marketing order quality requirements but would have met U.S. No.
1 Grade (as indicated previously, the nectarine grade requirements
under the marketing order permit less fruit scarring than allowed under
U.S. No. 1). The report pointed out that these findings were based on a
crop season which was marked by unusual crop and weather conditions.
After reviewing the report, the nectarine and peach subcommittees voted
to not recommend to the full Committees that a utility grade be
implemented in 1996 for nectarines and peaches citing the unusual
weather conditions that resulted in below normal crops. They believed
that Dr. Nef's research project should be continued for another year to
allow for the collection of data based on a more normal year.
On November 29, 1995, the Department wrote to the Committees
recommending that a utility grade be adopted for nectarines and peaches
for the 1996 season beginning April 1, 1996. These Committees met on
December 6-7, 1995, to discuss possible implementation of a utility
grade for nectarines and peaches for the 1996 season. Committee members
and others in attendance at the meetings expressed views in opposition
to and in support of implementing a utility grade.
Commenters in opposition to a utility grade for nectarines and
peaches stated that the 1995 season was not a normal season for plums,
nectarines, or peaches and should not be used as a basis for
recommending a utility grade. They also said that the tree fruit
industry is facing competition in both domestic and in foreign markets.
One commenter stated that utility grade fruit would damage the
reputation of California-produced tree fruit and another stated that
poor quality California plums had been shipped to Hong Kong last year
and that these plums had damaged the reputation of California plums.
One commenter stated that allowing a utility grade would result in
inspections of fruit which only serve to verify that the fruit in the
container is poor quality. Others stated that lower quality fruit is
not wasted and may be used for cattle feed. Another stated that the
results of the recent grower referendum indicated support for the
continuation of the program and the continuation of the quality
standards.
One commenter in support of a utility grade for nectarines stated
that the implementation of a utility grade for plums in 1995 resulted
in a $10 million increase in plum grower revenue. Commenters noted that
less than 10 percent of the plum pack was utility grade. One commenter
stated that while less than one percent of his organization's plum pack
was utility grade, this lower grade should be available for use by
nectarine and peach handlers if a market exists. Others commented that
the Department had recommended a utility grade for nectarines and
peaches for one year only--1996.
Data on recent production of California nectarines and peaches in
relation to season average producer prices appears to indicate that
lesser quality fruit could be marketed successfully without interfering
with sales of higher quality fruit. The limited quantity expected to be
available would be expected to have a minimal effect on consumer
purchases and season average producer prices for California nectarines
and peaches. Sales of lesser quality fruit to a niche market could
increase producer revenue and promote consumer satisfaction.
The Department's proposal to implement the ``CTFA Utility'' quality
requirement for the 1996 season would authorize fruit meeting this
requirement to be shipped to market and provide actual information on
consumer and retailer acceptability of such fruit. This information
could then be used to supplement information collected by Dr. Nef and
assist the respective industries in developing their quality
requirements for the 1997 season.
Based on the foregoing, the Department proposes that a utility
grade for nectarines and peaches should be implemented on an
experimental basis for the 1996 season. The Department proposes, for
purposes of this regulation, to define ``CTFA Utility'' to mean fruit
which meets the requirements of U.S. No. 2 Grade defined in the United
States Standards for Grades of Nectarines (7 CFR 51.3145 through
51.3160) and the United States Standards for Grades of Peaches (7 CFR
51.1210 through 51.1223) except that misshapened fruit and fruit with
serious damage due to scarring would be permitted.
Committee members and others who commented at the December 6-7
Committee meetings indicated that a niche market may exist for utility
grade
[[Page 8227]]
fruit and that the opportunity should be made available to market lower
quality fruit to meet demand. This proposal could allow more fruit to
be marketed.
In order to prevent confusion in the marketplace and to clearly
differentiate shipments of ``CTFA Utility'' fruit from better quality
fruit, this proposal requires that containers of ``CTFA Utility'' fruit
be conspicuously marked with the words ``CTFA Utility''. In addition,
shipments of such fruit would be required to meet the same container,
pack, and container marking requirements in effect for shipments of
higher quality fruit.
This proposed rule reflects the Department's appraisal of the need
to revise the quality and container requirements for California
nectarines and peaches as specified. The Department believes that this
rule may have a beneficial impact on producers, handlers, and consumers
of California nectarines and peaches.
Based on available information, the Administrator of the AMS has
determined that this action would not have a significant economic
impact on a substantial number of small entities.
A 30-day comment period is provided to allow interested persons to
respond to this proposal. All written comments timely received will be
considered before a final determination is made on these matters.
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 proposed to be amended as follows:
PART 916--NECTARINES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR Part 916 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 916.350 is amended by adding a new paragraph (d) to read
as follows:
Sec. 916.350 California Nectarine Container and Pack Regulation.
* * * * *
(d) During the period April 1 through October 31, 1996, each
container or package when packed with nectarines meeting CTFA Utility
requirements, shall bear the words ``CTFA Utility'' marked on all
containers and packages, along with all other required container
markings, in letters of \3/4\ inch minimum height on the principal
display panel. Consumer bags or packages must also be clearly marked on
the bag or package as ``CTFA Utility'' along with other required
markings.
3. Section 916.356 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 916.356 California Nectarine Grade and Size Regulation.
(a) * * *
(1) Any lot or package or container of any variety of nectarines
unless such nectarines meet the requirements of U.S. No. 1 grade:
Provided, that nectarines 2 inches in diameter or smaller, shall not
have fairly light colored, fairly smooth scars which exceed an
aggregate area of a circle \3/8\ inch in diameter, and nectarines
larger than 2 inches in diameter shall not have fairly light colored,
fairly smooth scars which exceed an aggregate area of a circle \1/2\
inch in diameter: Provided further, That an additional tolerance of 25
percent shall be permitted for fruit that is not well formed but not
badly misshapen. Provided further, that, during the period April 1
through October 31, 1996, any handler may handle nectarines if such
nectarines meet CTFA Utility quality requirements. The term CTFA
Utility means nectarines that have been inspected by the Federal or
Federal-State Inspection Service and meet the requirements of the U.S.
No. 2 grade as defined in the United States Standards for Grades of
Nectarines [7 CFR 51.3145 through 51.3160], except that misshapened
fruit and fruit with serious damage due to scarring would be permitted.
The Federal or Federal-State Inspection Service shall make final
determinations on maturity through the use of color guides or such
other tests as determined appropriate by the inspection agency.
* * * * *
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR Part 917 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 917.442 is amended by adding and reserving a new
paragraph (c) and adding paragraph (d) to read as follows:
Sec. 917.442 California Peach Container and Pack Regulation.
* * * * *
(d) During the period April 1 through November 23, 1996, each
container or package when packed with peaches meeting CTFA Utility
requirements, shall bear the words ``CTFA Utility'' marked on all
containers and packages, along with all other required container
markings, in letters of \3/4\ inch minimum height on the principal
display panel. Additional consumer bags or packages must also be
clearly marked on the bag or package as ``CTFA Utility'' along with
other required markings.
3. Section 917.459 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 917.459 California Peach Grade and Size Regulation.
(a) * * *
(1) Any lot or package or container of any variety of peaches
unless such peaches meet the requirements of U.S. No. 1 grade:
Provided, that an additional 25 percent tolerance shall be permitted
for fruit with open sutures which are damaged, but not seriously
damaged. Provided, that, during the period April 1 through November 23,
1996, any handler may handle peaches if such peaches meet CTFA Utility
quality requirements. The term CTFA Utility means peaches that have
been inspected by the Federal or Federal State Inspection Service and
meet the requirements of the U.S. No. 2 grade as defined in the United
States Standards for Grades of Peaches [7 CFR 51.1210 through 51.1223],
except that misshapened fruit and fruit with serious damage due to
scarring would be permitted. The Federal or Federal-State Inspection
Service shall make final determinations on maturity through the use of
color chips or other tests as determined appropriate by the inspection
agency.
* * * * *
Dated: February 26, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-4871 Filed 3-1-96; 8:45 am]
BILLING CODE 3410-02-P
