[Federal Register Volume 60, Number 112 (Monday, June 12, 1995)]
[Rules and Regulations]
[Pages 30994-30997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14276]
[[Page 30993]]
_______________________________________________________________________
Part IV
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Parts 916 and 917
Nectarines and Peaches Grown in California; Revision of Handling
Requirements for Fresh Nectarines and Peaches; Final Rule
Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / Rules
and Regulations
[[Page 30994]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV95-916-1FIR]
Nectarines and Peaches Grown in California; Revision of Handling
Requirements for Fresh Nectarines and Peaches
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with appropriate modifications, the provisions of an
interim final rule which revised the handling requirements for
California nectarines and peaches by modifying the size, maturity,
container, and pack requirements for fresh shipments of these fruits,
beginning with 1995 season shipments. This rule enabled handlers to
continue shipping fresh nectarines and peaches meeting consumer needs
in the interest of producers, handlers, and consumers of these fruits.
EFFECTIVE DATE: June 12, 1995.
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, 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 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.
All of the handlers sell peaches, while three out of four handlers sell
nectarines. Small agricultural service firms have been defined by the
Small Business Administration [13 CFR 121.601] as those whose annual
receipts from all sources are less than $5,000,000 and small
agricultural producers are defined as those whose annual receipts are
less than $500,000. The majority of handlers have sales of less than
$5,000,000 and may be classified as small entities. In recent seasons,
only about ten handlers had combined peach and nectarine sales of
$5,000,000 or more. In recent years, average combined sales of peaches
and nectarines per handler have been about $600,000. Typically, about
three-fourths of peach and nectarine handlers have sales of less than
the average for the industry.
The Nectarine Administrative Committee (NAC) and the Peach
Commodity Committee (PCC) met on December 7, 1994, and unanimously
recommended that the handling requirements for California nectarines
and peaches be revised, respectively. 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. 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.
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. This rule revises paragraph
(a)(4)(iv) of Sec. 916.350 by modifying two size designations for the
weight-count standards in Column B of TABLE I for early-season and mid-
season nectarine varieties. This table was added prior to the 1994
season. Research conducted by the NAC indicated that early-season and
mid-season fruit weigh less than late-season fruit and therefore
different weight-count standards were established for late-season
fruit. Results from further research during the 1994 season suggest
that some minor modifications of TABLE I are necessary to provide for
more accurate weight-count standards for early-season and mid-season
nectarines.
The NAC unanimously recommended these revised weight-count
standards for nectarines after a comprehensive review of the
relationships between the tray-pack containers and loose-filled or
tight-filled containers for early-season and mid-season nectarine
varieties. Specifically, the NAC's recommendation provides that the
maximum number of nectarines of size 80 in a 16-pound sample of early-
season and mid-season fruit is more appropriately 75 rather than 76.
Also, the maximum number of nectarines of size 64 in a 16-pound sample
of early-season and mid-season fruit is more appropriately 55 rather
than 56.
Pack regulations provide for uniform packing practices. In
particular, weight- [[Page 30995]] count standards provide for
comparability between fruit packed in loose-filled or tight-filled
containers and fruit packed in tray-pack containers.
According to the NAC, packers occasionally moved fruit from tray-
pack containers to loose-filled or tight-filled containers. This
activity has led to an awareness, in regard to early-season and mid-
season varieties, that fruit which was of proper size when tray-packed
exceeded the maximum number of nectarines for the 16-pound sample for
corresponding loose-filled or tight-filled containers. In some
instances, these samples would need additional pieces of fruit to meet
the 16-pound weight requirement, thus causing the pack to be marked
smaller than its equivalent tray-pack size. When packs are marked with
a smaller size, the container is generally sold for a lower price.
Revised and refined weight-count standards for early-season and mid-
season varieties should provide for more accurate marking of size when
packed in loose-filled or tight-filled containers compared to
equivalent sizes that are tray packed. These regulations provide for
uniformly packed containers of nectarines. The NAC's recommendations
were also thoroughly discussed at a nectarine size subcommittee meeting
held on November 22, 1994, that involved members of the industry and
USDA staff.
Currently, under the marketing order the minimum maturity
requirement for nectarines grown in California is U.S. Mature, which
means that the nectarine has reached the stage of growth which will
insure a proper completion of the ripening process. A higher maturity
standard is defined as California ``Well Matured,'' which is a
condition distinctly more advanced than mature.
This rule adds a definition of ``tree ripe'' to paragraph (b) of
section 916.350. According to the NAC, ``tree ripe'' is an optional
marking without regard to maturity that is stamped on containers of
nectarines. Currently there is no definition of ``tree ripe''. As a
result of inquiries from the industry and the trade, the NAC
recommended defining ``tree ripe'' so that it has a standard meaning.
In the past, there has been no definition of ``tree ripe'' although
fruit boxes marked ``tree ripe'' had to meet the minimum marketing
order maturity standard of U.S. Mature. Handlers have been able to
stamp any maturity level, including U.S. Mature, as ``tree ripe'' due
to a lack of any definition for this nomenclature. The NAC stated that
in some instances, handlers have stamped ``tree ripe'' on every box of
fruit they packed all season. There is growing concern within the
industry that fruit packed at the lower level of acceptable maturity do
not represent what is most commonly perceived as tree ripe. By
requiring that fruit must be at a minimum California Well Matured
maturity standard in order to be marked ``tree ripe'' will help ensure
that buyer expectations are met.
Maturity Requirements (Nectarines)
Section 916.356 specifies maturity requirements 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 requirements are based on maturity
measurements which are generally recognized in terms of maturity guides
(e.g., color chips) specified in paragraph (a)(1)(i) and TABLE I of
Sec. 916.356 for nectarines. This rule revises TABLE I of paragraph
(a)(1)(i) of Sec. 916.356 for nectarines to change the maturity guide
for one nectarine variety.
Specifically, a change in color standard was recommended for Alshir
Red from L to J. In a corresponding action, the tolerance for the
Alshir Red variety that states ``except not less than an aggregate area
of 95% of fruit surface shall meet the color standard established for
the variety'' is deleted.
These changes for this nectarine variety are based on a continuing
review of its individual maturity characteristics, and the
identification of the appropriate color chip corresponding to the
``well matured'' level of maturity for such variety.
Size Requirements (Nectarines)
Section 916.356 specifies size requirements for fresh nectarines in
paragraphs (a)(2) through (a)(9). This rule revises Sec. 916.356 to
establish variety-specific size requirements for fourteen nectarine
varieties that were produced in commercially significant quantities of
more than 10,000 packages for the first time during the 1994 season.
Size regulations are put in place to improve fruit quality by
allowing fruit to stay on the tree for a greater length of time which
not only improves maturity and therefore the quality of the product but
also size and increases the number of packed boxes of nectarines per
acre. This provides greater consumer satisfaction, more repeat
purchases and therefore increases returns to growers. Varieties
recommended for specific size regulation have been reviewed and
recommendations are based on the characteristics of the variety to
attain minimum size. Paragraph (a)(4) is revised to include the Arctic
Glo, May Jim, Red Glo, and Royal Glo varieties; and paragraph (a)(6) of
Sec. 916.356 is revised to include the Arctic Queen, How Red, La Pinta,
Red Fred, Royal Red, Ruby Diamond, Spring Bright, Summer Blush, 424-
195, and Nectarine 23 varieties.
This rule also revises Sec. 916.356 to remove six 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 1994 season. Paragraph (a)(2) of that section
is revised to remove the Aurelio Grand and Maybelle nectarine
varieties; paragraph (a)(4) is revised to remove the Grand Stan
variety; and paragraph (a)(6) is revised to remove the Autumn Grand, Le
Grand, and Super Red nectarine varieties. Nectarine varieties removed
from the nectarine variety-specific list become subject to the non-
listed variety size requirements specified in paragraphs (a)(7),
(a)(8), and (a)(9) of Sec. 916.356.
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. This rule is designed to establish minimum size
requirements for fresh nectarines consistent with expected crop and
market conditions.
This rule also corrects an error in the minimum size requirements
for Royal Glo variety nectarines from size 80 to size 88. The 1995
seasonal regulations list a minimum size of 80 for the Royal Glo
nectarine variety. Royal Glo variety nectarines are an early season
variety and are usually harvested in mid to late May. Nectarines are
assigned minimum sizes, based on the time of harvest and size
characteristics of specific nectarine varieties. Nectarines harvested
in mid to late May are usually smaller, therefore the minimum size 88
category is more responsive to market needs. Based on this criterion,
the Royal Glo variety nectarine should have been in the minimum size 88
category. As such, the reference to the Royal Glo variety nectarine is
added to Sec. 916.356 paragraph (a)(4) and removed from paragraph
(a)(6) under that section.
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 [[Page 30996]] size designations specify the maximum number
of peaches in a 16-pound sample for each tray pack size designation.
This rule revises paragraph (a)(4)(iv) of Sec. 917.442 by modifying
three size designations for the weight-count standards in Column B of
TABLE I for early-season and mid-season peach varieties. Research
conducted by the PCC indicated that early-season and mid-season fruit
weighs less than late-season fruit and the weight-count standards were,
therefore, modified based on that consideration. Results from the 1994
season suggest that some minor modifications of TABLE I are necessary
to further correct the weight-count differences between early-season
and mid-season peaches, and late-season peaches.
The PCC unanimously recommended the revised container marking
requirement changes 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 early-season
and mid-season peach varieties prior to the 1995 season. Specifically,
the PCC's recommendation provides that the maximum number of peaches of
size 84 in a 16-pound sample of early-season and mid-season fruit is
more appropriately 83 rather than 85. Also, the maximum number of
peaches of size 70 in a 16-pound sample of early-season and mid-season
fruit is more appropriately 64 rather than 66. The maximum number of
peaches of size 60 in a 16-pound sample of early-season to mid-season
fruit is more appropriately 50 rather than 47.
In making this revision, a conforming change is required in
Sec. 917.459 (a)(4)(iii) which is referenced in TABLE I. Section
917.459 (a)(4)(iii) currently provides a maximum number of 85 peaches
in a 16-pound sample of early-season and mid-season fruit. This
revision will modify the maximum number of peaches in a 16-pound sample
of early-season and mid-season fruit to 83 pieces of fruit from the
current 85 pieces of fruit.
Pack regulations provide for uniform packing practices. In
particular, weight-count standards provide for equality between packs
of loose-filled or tight-filled sizes to fruit sizes packed in tray-
pack styles. Varieties harvested early in the season and packed in
loose-filled or tight-filled pack styles have had more difficulty being
equal in size to tray-pack style of packing.
According to the PCC, packers occasionally moved fruit from tray-
pack styles of pack to loose-filled or tight-filled pack styles. This
activity has led to an awareness, especially in regard to early-season
varieties, that fruit which was of proper size when tray-packed
exceeded the maximum number of nectarines for the 16-pound sample for
corresponding loose-filled or tight-filled pack size. In some
instances, these samples would need as many as 10 additional pieces of
fruit to meet the 16-pound weight requirement, thus causing the pack to
be ``marked'' smaller than its equivalent tray-pack size. When packs
are ``marked'' smaller this causes the container to be sold for a lower
price. During the 1994 season new weight-count assignments for early
varieties were in place. Research continued with the purpose of
possible refinement of those weight-count assignments.
Revised and refined weight-count standards for early varieties
should provide for more accurate marking size when packed in loose-
filled or tight-filled pack styles compared to equivalent sizes that
are tray packed. These regulations provide for uniformly packed
containers of peaches. The PCC's recommendations were also thoroughly
discussed at a peach size subcommittee meeting held on November 22,
1994, that involved members of the industry and USDA staff.
Currently, under the marketing order the minimum maturity
requirement for peaches grown in California is U.S. Mature, which means
that the peach has reached the stage of growth which will insure a
proper completion of the ripening process. A higher maturity standard
is defined as California ``Well Matured,'' which is a condition
distinctly more advanced than mature.
This rule adds a definition of ``tree ripe'' to section 917.442
paragraph (b). According to the PCC, ``tree ripe'' is an optional
marking without regard to maturity that is stamped on containers of
peaches. Currently there is no definition of ``tree ripe''. As a result
of inquiries from the industry and the trade, the PCC wants to define
``tree ripe'' so that its interpretation is consistent with other
descriptive markings. In the past there has been no definition of tree
ripe although fruit boxes marked ``tree ripe'' had to meet minimum
marketing order standards. Handlers have been able to stamp any
maturity level, including U.S. Mature, as ``tree ripe'' due to a lack
of any definition for this nomenclature. The PCC states that in some
instances in the past, it is known that some handlers have stamped
``tree ripe'' on every box of fruit they packed all season. There is
growing concern among the industry that fruit packed at the lowest
levels of maturity do not represent what is most commonly perceived as
tree ripe. By requiring fruit be at a minimum California ``Well
Matured'' maturity standard in order to be marked ``tree ripe'' will
help ensure that buyer expectations are met.
Maturity Requirements (Peaches)
Section 917.459 specifies maturity requirements for fresh peaches
in paragraphs (a)(1)(i) and (ii), including TABLE I, for fruit being
inspected and certified as meeting the maturity requirements for ``well
matured'' fruit. Such maturity requirements are based on maturity
measurements which are generally recognized in terms of maturity guides
(e.g., color chips) specified in paragraphs (a)(1)(i) and (ii),
including TABLE I of Sec. 917.459 for peaches. This rule revises TABLE
I of paragraph (a)(1)(ii) of Sec. 917.459 for peaches to change the
maturity guide for the David Sun, King's Red, Crimson Lady and Johnny's
White peach varieties. The reference to TABLE I of paragraph (a)(1)(ii)
is a change from the interim final rule which incorrectly cited the
revisions in TABLE I under paragraph (a)(2)(ii).
The SPI recommended these 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). This rule
revises Sec. 917.459 to establish variety-specific size requirements
for eight peach varieties that were produced in commercially
significant quantities of more than 10,000 packages for the first time
during the 1994 season.
Size regulations are put in place to improve fruit quality by
allowing fruit to stay on the tree for a greater length of time which
not only improves maturity and therefore the quality of the product but
also size and increases the number of packed boxes of peaches per acre.
This provides greater consumer satisfaction, more repeat purchases and
therefore increases returns to growers. Varieties recommended for
specific size regulation have been reviewed and recommendations are
based on the characteristics of the variety to attain minimum size. In
Sec. 917.459 paragraph (a)(5) is revised to include the Snow Brite and
Sugar May peach varieties; and paragraph (a)(6) is revised to include
the August Delight, Autumn [[Page 30997]] Rose, Red Boy, Royal Lady,
September Snow, and Summer Sweet peach varieties.
This rule also revises Sec. 917.459 to remove two 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 1994 season. In Sec. 917.459 paragraph (a)(4) is
revised to remove the Morning Sun peach variety; and paragraph (a)(6)
is revised to remove the Golden Lady peach variety. Peach varieties
removed from the variety-specific list become subject to the non-listed
variety size requirements specified in paragraphs (b) and (c) of
Sec. 917.459.
The removal of the Morning Sun variety from paragraph (a)(4)
results in there being no varieties regulated within size 84 for the
1995 season. Since the variety-specific list is subject to change from
one season to another, the Department wishes to reserve paragraph
number Sec. 916.459 (a)(4) for future regulation of peaches at size 84.
The PCC unanimously 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. This rule is 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 revise the 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 establishes handling requirements for fresh California
nectarines and peaches consistent with expected crop and market
conditions, and will help ensure that all shipments of these fruits
made each season will meet acceptable handling requirements established
under each of these orders. This rule will also help the California
nectarine and peach industries provide fruit desired by consumers. This
rule is designed to establish and maintain orderly marketing conditions
for these fruits in the interest of producers, handlers, and consumers.
The interim final rule concerning this action was published in the
March 21, 1995, Federal Register (60 FR 14891), with a 30-day comment
period ending April 20, 1995. Two comments were received.
One comment was received from Mr. Jonathan Field, manager of the
NAC and PCC, in support of the committees' recommendations. Another
comment was received from Chief Counsel for Advocacy of the United
States Small Business Administration (SBA). The SBA contended that the
Department failed to follow its own procedures for informal rulemaking
by not publishing the votes on the committees' recommendations. The SBA
further stated that the interim final rule does not relate how the
committees determined what the impact of the rule would be on growers,
handlers and consumers. SBA further stated that the interim final rule
provides no evidence of the impact that these rule changes will have on
small businesses.
In response to the SBA concerns, the Department followed its
informal rulemaking procedures in reviewing the committees'
recommendations. The Department reviewed and considered the information
received from the NAC and PCC as it relates to alternative
recommendations and the impact of this rule on small businesses (i.e.,
growers and handlers).
The Department disagrees with SBA's assertion that the interim
final rule fails to follow the Department's informal rulemaking
procedures and the requirements for the Regulatory Flexibility Act. The
SBA's concerns regarding this action have been properly addressed in
this document and the interim final rule.
The revision of the handling requirements for fresh peaches and
nectarines adopted by this final rule will apply uniformly to all
handlers in the industry, whether small or large, and there are no
known additional costs incurred by small handlers. The stabilizing
effects of the handling regulation impact both small and large handlers
positively by helping them maintain their markets by meeting consumer
demand.
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 rule, 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:
1. The authority citation for 7 CFR parts 916 and 917 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 916--NECTARINES GROWN IN CALIFORNIA
The interim amendments to 7 CFR part 916 which were published at 60
FR 14891 on March 21, 1995, are adopted as a final rule with the
following change:
Sec. 916.356 [Amended]
2. In Sec. 916.356, paragraph (a)(4) is amended by adding the name
``Royal Glo,'' immediately following the name ``Rose Diamond,'' and
paragraph (a)(6) is amended by removing the name ``Royal Glo,''.
* * * * *
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
The interim amendments to 7 CFR part 917 which were published at 60
FR 14891 on March 21, 1995, are adopted as a final rule with the
following change:
Sec. 917.459 [Corrected]
3. On page 14896, first column, in the amendatory instruction
number 5, the reference to paragraph ``(a)(2)(ii)'' is corrected to
``(a)(1)(ii)'' and in the second column, under paragraph designated
Sec. 917.459, the reference to ``(a)(2)(ii)'' is corrected to read
``(a)(1)(ii)''.
Dated: June 6, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-14276 Filed 6-9-95; 8:45 am]
BILLING CODE 3410-02-P
