[Federal Register Volume 63, Number 160 (Wednesday, August 19, 1998)]
[Rules and Regulations]
[Pages 44363-44370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22254]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 63, No. 160 / Wednesday, August 19, 1998 /
Rules and Regulations
[[Page 44363]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV98-916-1 FIR]
Nectarines and Peaches Grown in California; Revision of Handling
and Reporting Requirements for Fresh Nectarines and Peaches
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting, as a
final rule, with a few corrections, the provisions of an interim final
rule revising the handling and reporting requirements for California
nectarines and peaches by modifying the grade, size, maturity, and
container requirements for fresh shipments of these fruits, during the
1998 season shipments. This rule continues in effect the modification
of requirements for placement of Federal-State Inspection Service lot
stamps, as well as the establishment of a single due date for handlers'
shipment reports. This rule enables handlers to continue shipping fresh
nectarines and peaches meeting consumer needs in the interest of
producers, handlers, and consumers of these fruits. This rule also
continues in effect the correction of the address of the California
Tree Fruit Agreement.
EFFECTIVE DATE: September 18, 1998.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, or
Kurt J. Kimmel, Regional Manager, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721;
telephone: (209) 487-5901, Fax: (209) 487-5906; or George Kelhart,
Technical Advisor, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456, Washington,
DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-6632. Small
businesses may request information on compliance with this regulation
by contacting Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; telephone: (202) 720-2491; Fax: (202) 205-
6632.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement Nos. 124 and 85, and Marketing Order Nos. 916 and 917 (7 CFR
parts 916 and 917) regulating the handling of nectarines and peaches
grown in California, respectively, hereinafter referred to as the
``orders.'' The marketing agreements and 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 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with 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 to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
This rule continues in effect the modifications to language in the
orders' administrative rules and regulations which revised the handling
and reporting requirements for California nectarines and peaches by
modifying the grade, size, maturity, and container requirements of
these fruits, beginning with 1998 season shipments. This rule also
continues in effect the modifications of the requirements for the
placement of Federal-State Inspection Service lot stamps, and continues
in effect the establishment of a single due date for handlers' shipment
reports. This rule also continues in effect a correction to the address
of the California Tree Fruit Agreement (CTFA).
Under the orders, grade, size, maturity, and container and pack
requirements are established for fresh shipments of California
nectarines and peaches. Such requirements are in effect on a continuing
basis. The Nectarine Administrative Committee (NAC) and the Peach
Commodity Committee (PCC), which are responsible for local
administration of the orders, met on December 4, 1997, and unanimously
recommended that these handling requirements be revised for the 1998
season, which began April 1, to: (1) Correct the address for the CTFA;
(2) modify the lot stamping requirements; (3) establish a single date
by which handlers must file shipment reports; (4) define and provide
dimensions for a new container; (5) simplify size marking requirements
for consumer packages and establish marking requirements for the new
container; (6) modify weight counts for early varieties; (7) authorize
shipments of ``CA Utility'' quality fruit during the 1998 season; (8)
standardize container tolerances for mature and well-matured
nectarines; (9) revise varietal maturity and size requirements to
reflect recent changes in growing conditions; and (10) revise the names
of some patented nectarine varieties to reflect the name changes made
by the patent holders.
The committees meet prior to and during each season to review the
rules and regulations effective on a continuing basis for California
nectarines and peaches under the orders. Committee meetings are open to
the public, and interested persons are encouraged to express their
views at these meetings. The Department reviews committee
recommendations and information, as well as information from other
sources, and determines whether
[[Page 44364]]
modification, suspension, or termination of the rules and regulations
would tend to effectuate the declared policy of the Act.
No official crop estimate was available at the time of the
committees' meetings in December because the nectarine and peach trees
were dormant. The committees did, however, make crop estimates at their
meetings in April. The estimated shipments for the 1998 crop year are
18,600,000 containers of nectarines and 19,300,000 containers of
peaches, making the anticipated 1998 crop similar in size and
characteristics to the 1997 crop which totaled 20,533,760 boxes of
nectarines and 19,882,584 boxes of peaches.
Communications (Peaches)
Section 917.110 of the peach order's rules and regulations provides
an address for communications to the CTFA. The Control Committee of
Marketing Order 917 provides administrative services for the NAC and
PCC. The CTFA is the name used to describe this administrative staff.
The CTFA moved its offices from Sacramento to Reedley, California.
For that reason, the PCC recommended that the address for the Control
Committee be changed to reflect the current location of the CTFA's
offices. The interim final rule corrected the address in Sec. 917.110
and this rule continues that address change.
Lot Stamping Requirements
Sections 916.55 and 917.45 of the orders require inspection and
certification of nectarines and peaches, respectively, handled by
handlers. Sections 916.115 and 917.150 of the nectarine and peach
orders' rules and regulations, respectively, require that containers of
nectarines and peaches be stamped with the Federal-State Inspection
Service (inspection service) lot stamp number after inspection and
prior to shipment to show that the fruit has been inspected. Such
requirements apply to all containers of nectarines or peaches unless
such containers are loaded directly into railway cars or mailed
directly to consumers in consumer packages.
Lot stamp numbers are assigned to each handler by the inspection
service, but control of the lot stamps is retained by the inspector
assigned to each handler's packing facility. Handlers with full-time
inspectors have full-time access to the lot stamp, thus ensuring that
each container of nectarines and/or peaches is stamped as required.
Handlers without a full-time inspector have access to the lot stamp
only when the inspector is on the premises. Thus, containers packed and
placed on pallets in the inspector's absence can be stamped only after
the inspector returns and performs an inspection on samples of those
containers. However, a new container configuration on the 40 by 48 inch
metric pallet is increasingly utilized by the industry. When the new
containers are stacked on the standardized pallet, the result is a
nine-column configuration of stacked containers; i.e., eight outer
columns surrounding a ninth, center column. The center column of
containers in that configuration cannot easily be marked with the lot
stamp upon the return and approval of the inspector since a portion of
the outer columns have to be unstacked from the pallet to expose the
containers comprising the center column. After the containers in the
center column are marked with the lot stamp, the containers comprising
the outer columns must be restacked on the pallet. This unstacking and
restacking of containers in an effort to mark the center column of
containers with the lot stamp is time-consuming and increases the
handler's costs. This cost is borne solely by smaller handlers who do
not pack a sufficient number of containers in a day to require the
presence of a full-time inspector.
In an effort to decrease handling time and costs for smaller
handlers, the NAC and PCC voted unanimously to exempt the containers in
the center column of the nine-column configuration from the requirement
for a Federal-State Inspection Service lot stamp. This exemption
implemented in the interim final rule is still estimated to affect
fewer than 10 handlers and less than 10,000 boxes of nectarines and
peaches, or approximately .6 percent of handlers and less than .001
percent of the total boxes of nectarines and peaches inspected during
the 1997 season. Exempting containers in this center column still meets
the intent of the orders' stamping requirements by allowing buyers and
the inspection service to positively identify each inspected lot. This
rule continues in effect the exemption implemented by the interim final
rule.
Reporting Procedures
Sections 916.60 and 917.50 of the orders require shipment reports
from nectarine and peach handlers to be submitted to the respective
committees. Prior to the implementation of the interim final rule,
Secs. 916.160(b) and 917.178(b) of the orders' rules and regulations
required that handlers report shipments of each nectarine and peach
variety by the tenth day of the month following the month the varieties
were shipped.
In prior seasons, handlers were required to file approximately
three shipment reports with the committees per season, resulting in
approximately 750 shipment reports for nectarine handlers and
approximately 900 shipment reports for peach handlers. Each shipment
report is estimated to take one hour for handlers to complete.
In an effort to make reporting less burdensome to handlers, the NAC
and PCC voted unanimously to establish a single reporting deadline of
November 15 of each year, no matter when shipments of each nectarine or
peach variety were made. This single reporting deadline implemented by
the interim final rule simplifies the reporting requirements so that
handlers need only file one report each for nectarine varieties and for
peach varieties at the end of the season rather than numerous reports
providing the shipments of individual nectarine and peach varieties
during the season. This relaxation is estimated to reduce burden hours
for nectarine handlers to approximately 250 hours from 750 hours and
for peach handlers to approximately 300 from 900 hours. This rule
continues in effect the relaxation in reporting requirements
implemented by the interim final rule.
Container Requirements
Sections 916.52 and 917.41 of the nectarine and peach orders,
respectively, provide authority to fix the size, capacity, weight,
dimensions, markings, or pack of containers that may be used in the
packaging and handling of these fruits. Sections 916.350 and 917.442 of
the orders' rules and regulations specify container and pack
requirements for nectarine and peach shipments. In part, the container
requirements specify the dimensions of the boxes commonly used by
handlers of nectarines and peaches. In recent years, to realize
efficiencies in utilizing space, the produce industry has standardized
shipment and storage of produce on a pallet measuring 40 by 48 inches.
With the adoption of this pallet, some of the boxes commonly utilized
by nectarine and peach handlers are being replaced by boxes which more
readily conform to the new, standardized pallet. One box that is used
more frequently is the No. 32 standard box, which measures 5\3/4\ to
7\1/4\ inches (inside dimensions) by 12 inches by 19\3/4\ inches
(outside dimensions). This box is commonly referred to as the
``shoebox'' because of its distinctive shape. The NAC and PCC believe
that new boxes, such as the No. 32, will become increasingly important
to the industry
[[Page 44365]]
because of their widespread acceptance by retailers and their use in
conjunction with the standardized pallet. For those reasons, the NAC
and PCC voted unanimously to include the definition and dimensions of
the No. 32 standard box within the orders' rules and regulations. The
Department implemented these changes in the interim final rule. This
rule continues these changes.
Use of the No. 32 standard lug box has also become interchangeable
with the No. 22D standard lug box. In part, this is because the
capacity of the two containers is similar, so handlers can pack the
same number of fruit of a particular size in either box. For that
reason, the modification of Secs. 916.350 and 917.442 of the orders'
rules and regulations continues in effect, specifying that sizes of
fruit shall be based on the number that can be packed in accordance
with the requirements of standard pack in either a No. 32 standard box
or a No. 22D standard lug box.
Sections 916.350 and 917.442 of the orders' rules and regulations
also require containers to be marked with certain information,
including the size and/or number of pieces of fruit in the container,
the name of the variety, if known, the maturity, and the name and
address of the shipper. Because the No. 32 standard box is also
currently the principal container used for molded forms (tray packs),
the No. 32 box has now become the industry standard for determining the
sizes in tray-pack packages. Thus, requiring markings for both the size
and count of fruit in this container is not necessary. For example, if
a No. 32 box is marked ``80 size,'' the buyer already knows it contains
80 pieces of ``size 80'' fruit because the number of fruit that fit in
standard pack configuration is the basis for the size designation.
Another packaging style whose use has become increasingly
widespread is the one-layer consumer package. Consumer packages of
nectarines and peaches are smaller boxes or bags of fruit suited for
display and sale as single units in some retail outlets. Consumer
packages of nectarines and peaches are generally smaller units without
adequate space on the outside ends for additional markings. Requiring
dual markings on consumer boxes would place a burden on handlers who
prefer to minimize markings on the outside of these boxes.
Pursuant to the interim final rule, No. 32 boxes and consumer
packages are required to be marked with either the size of the fruit,
e.g., ``88 size'' or ``80 size,'' or the count, e.g., ``88 count'' or
``80 count,'' but not both. Eliminating the requirement for dual
markings on these containers is consistent with the rules and
regulations of the orders and with historical practices within the
nectarine and peach industries. This rule continues in effect the
authority for regulating the No. 32 box and consumer packages.
In a comment to the interim final rule, the Field Director for the
CTFA pointed out that the use of the word ``cartons'' in paragraphs
(a)(4)(i) of Secs. 916.350 and 917.442 was unnecessarily repeated.
According to the commenter, the word ``cartons'' is synonymous with
containers that have a net weight of 35 pounds, regardless of the
assigned container number. For that reason, the word ``cartons'' when
used a second time in those paragraphs was duplicative and has been
removed.
Table 1 of paragraphs (a)(4)(iv) of Secs. 916.350 and 917.442
specify the tray pack size designations which must be marked on
containers of nectarines or peaches, respectively, depending on the
size of the fruit. The weight-count size designations specify the
maximum number of nectarines or peaches in a 16-pound sample for each
tray-pack size designation. This rule continues in effect the revision
of Secs. 916.350 and 917.442 by modifying the weight counts of early-
season fruit sizes 56 to 72 in Table 1 of those paragraphs.
According to the information provided by a handler of early-season
nectarines and peaches, increasing amounts of early-season nectarines
and peaches are currently being converted to volume-filled containers
from the traditional tray packs. Early-season nectarines and peaches
lack the density of mid-season and late-season fruit, while maintaining
overall size. For this reason, early-season nectarines and peaches may
adequately fill the tray-pack container molded forms; but, when
converted to volume-filled containers without the molded forms, the
early-season fruit lacks the weight to adequately meet the requirements
of a 16-pound sample. Prior to the implementation of the interim final
rule, the handler was required to include an additional nectarine or
peach in the 16-pound sample to meet the required sample weight for
five sizes of nectarines and peaches when the tray-pack container is
converted to the volume-filled container. This resulted in lower
returns for the producer and handler of early-season fruit sold in
volume-filled containers. The NAC and PCC unanimously recommended
modifications to the early-season weight-count standards for five sizes
of nectarines and peaches by the addition of one piece of fruit to each
weight-count standard currently in effect for sizes 56 to 72. This rule
continues in effect the modifications of Table 1 of paragraphs
(a)(4)(iv) in Secs. 916.350 and 917.442 which added an additional
nectarine or peach, respectively, to sizes 56, 60, 64, 70, and 72. The
changes will permit handlers to more easily convert tray-packed
nectarines and peaches to volume-filled containers and decrease the
handling costs associated with that conversion.
Quality Requirements
Sections 916.52 and 917.41 of the orders authorize the
establishment of grade and quality requirements for nectarines and
peaches, respectively. Prior to the 1996 season, Sec. 916.356 of the
order's rules and regulations required nectarines to meet a modified
U.S. No. 1 grade. Specifically, nectarines were required to meet U.S.
No. 1 grade requirements, except there was a slightly tighter
requirement for scarring and a more liberal allowance for misshapen
fruit. Under Sec. 917.459 of the order's rules and regulations prior to
the 1996 season, peaches were also required to meet the requirements of
a U.S. No. 1 grade, except there was a more liberal allowance for open
sutures that were not ``serious damage.''
This rule continues the revision of Secs. 916.350, 916.356,
917.442, and 917.459 permitting shipments of nectarines and peaches
meeting ``CA Utility'' quality requirements during the 1998 season.
(``CA Utility'' fruit is lower in quality than that meeting the
modified U.S. No. 1 grade requirements.) Shipments of nectarines and
peaches meeting ``CA Utility'' quality requirements were permitted
during the 1996 and 1997 seasons only.
Preliminary studies conducted by the NAC and PCC indicate that some
consumers, retailers, and foreign importers found the lower quality
fruit acceptable in some markets. Shipments of ``CA Utility''
nectarines represented 1.1 percent of all nectarine shipments, or
approximately 210,000 boxes in 1996. In 1997, shipments of ``CA
Utility'' nectarines represented 1.1 percent of all nectarine
shipments, or approximately 230,000 boxes. Shipments of ``CA Utility''
peaches represented 1.9 percent of all peach shipments, or 366,000
boxes in 1996. In 1997, shipments of ``CA Utility'' peaches represented
1.0 percent of all peach shipments, or approximately 217,000 boxes.
For these reasons, the NAC and PCC unanimously recommended that
shipments of ``CA Utility'' quality nectarines and peaches,
respectively, be permitted for the 1998 season with a
[[Page 44366]]
continuing in-house statistical review at the end of the season.
Clarification of Container Tolerances (Nectarines)
As previously indicated, the orders require that, except for ``CA
Utility'' quality fruit, nectarines and peaches meet most of the
requirements of the U.S. No. 1 grade. These requirements include the
requirement that such fruit is ``mature.'' (``CA Utility'' fruit is
also required to be ``mature.'') A second, higher maturity standard of
``well matured'' is also defined in the rules and regulations for both
nectarines and peaches.
For those grade factors included in the U.S. Standards for Grades
of Nectarines and for Grades of Peaches (standards), tolerances are
provided for fruit that fail to meet those factors to allow for
variations incident to proper grading and handling. Tolerances are
specified for both entire lots of fruit and for individual containers
within the lot. These tolerances may be modified by the orders' rules
and regulations.
On December 4, 1997, the NAC recommended a nectarine container
tolerance of one and one-half times the lot tolerance in instances
where the lot tolerance was 10 percent or more, and a nectarine
container tolerance of twice the lot tolerance in instances where the
lot tolerance was 9 percent or less. This nectarine container tolerance
implemented by the interim final rule is identical to that currently in
effect for peaches. Continued standardization of container tolerances
between nectarines and peaches should benefit handlers of both fruits.
These tolerances are specified in revised paragraph (c) of Sec. 916.356
and continue in effect.
Maturity Requirements
Both orders provide (in Secs. 916.52 and 917.41) authority to
establish maturity requirements for nectarines and peaches,
respectively. The minimum maturity level currently specified for
nectarines and peaches is ``mature'' as defined in the standards.
Additionally, both orders' rules and regulations provide for a higher,
``well matured'' classification. For most varieties, ``well-matured''
fruit determinations are made using maturity guides (e.g., color
chips). These maturity guides are reviewed each year by the Shipping
Point Inspection Service (SPI) to determine whether they need to be
changed based on the most recent information available on the
individual characteristics of each variety. These maturity guides
established under the handling regulations of the California tree fruit
marketing orders have been codified in the Code of Federal Regulations
as Table 1 in Secs. 916.356 and 917.459, for nectarines and peaches,
respectively.
The requirements in the 1998 handling regulation are the same as
those that appeared in the 1997 handling regulation with a few
exceptions. Those exceptions were implemented by the interim final
rule, are explained in this rule, and continue in effect.
Nectarines
Requirements for ``well-matured'' nectarines are specified in
Sec. 916.356 of the order's rules and regulations. This rule continues
in effect a revision of Table 1 of paragraph (a)(1)(iv) of Sec. 916.356
which added maturity guides for 2 nectarine varieties. Specifically,
SPI recommended adding maturity guides for the June Brite nectarine
variety at a maturity guide of I; and the Diamond Ray nectarine variety
at a maturity guide of L.
The NAC recommended these maturity requirements based on SPI's
continuing review of individual maturity characteristics and
identification of the appropriate maturity guide corresponding to the
``well-matured'' level of maturity for nectarine varieties in
production.
A revision of Table 1 of paragraph (a)(1)(iv) of Sec. 916.356 is
also continued in effect to remove 15 nectarine varieties which are no
longer in production. The NAC routinely reviews the status of nectarine
varieties listed in these maturity guides. The most recent review
revealed that 15 of the nectarine varieties previously listed in the
maturity guide have not been in production since the 1995 season.
Typically, the NAC recommends removing a variety after non-production
for three seasons, or if trees of that variety are known to have been
pulled out, because a maturity guide for an obsolete variety is no
longer needed. The varieties removed included the Ama Lyn, Del Rio Rey,
Gold King, Grand Stan, June Grand, Kent Grand, Le Grand, Red June,
Regal Grand, Sierra Star/181-119, Spring Grand, Spring Top, Star
Bright, Star Grand, and Tasty Free nectarine varieties.
This rule also continues in effect the removal of the 61-61
nectarine variety from all variety-specific regulations, including the
requirement for 80 percent surface color, as specified in Sec. 916.350.
Similarly, this rule continues in effect the removal of the Fairlane
nectarine variety from Sec. 916.350, including the requirement for 80
percent surface color. These two varieties are now being regulated at
the requirement for 90 percent surface color. With the removal of the
Fairlane and 61-61 nectarine varieties, the Tom Grand nectarine variety
continues as the only variety regulated at the requirement for 80
percent surface color.
Peaches
Section 917.459 of the order's rules and regulations specifies
maturity requirements for fresh peaches being inspected and certified
as being ``well matured.''
This rule continues in effect the revision of Table 1 of paragraph
(a)(1)(iv) of Sec. 917.459 which added maturity guides for 2 peach
varieties. Specifically, SPI recommended adding maturity guides for the
Rich Mike peach variety to be regulated at the H maturity guide, and
the August Lady peach variety to be regulated at the L maturity guide.
The PCC recommended these maturity requirements based on SPI's
continuing review of individual maturity characteristics and
identification of the appropriate maturity guide corresponding to the
``well-matured'' level of maturity for peach varieties in production.
This rule continues in effect the revision of Table 1 of paragraph
(a)(1)(iv) of Sec. 917.459 removing 7 peach varieties which are no
longer in production. The PCC routinely reviews the status of peach
varieties listed in these maturity guides. The most recent review
revealed that 7 of the peach varieties previously listed in the
maturity guide have not been in production since the 1995 season.
Typically, the PCC recommends removing a variety after non-production
for three seasons, or if trees of that variety are known to have been
pulled out, because a maturity guide for an obsolete variety is no
longer needed. The varieties removed included the Cardinal, Early
Coronet, July Lady, Kearney, May Lady, Prime Crest, and Redglobe peach
varieties.
Size Requirements
Both orders provide (in Secs. 916.52 and 917.41) authority to
establish size requirements. Size regulations encourage producers to
leave fruit on the tree longer. This increased growing time not only
improves the size of the fruit, but also increases its maturity.
Increased size also results in an increased number of packed boxes of
nectarines or peaches per acre. Acceptable size fruit also provides
greater consumer satisfaction, more repeat purchases, and, therefore,
increases returns to producers and handlers. Varieties recommended for
[[Page 44367]]
specific size regulation have been reviewed and such recommendations
are based on the specific characteristics of each variety. The NAC and
PCC conduct studies each season on the range of sizes reached by the
regulated varieties and determine whether revisions in the size
requirements are appropriate.
In the comment received, the commenter requested that the numerical
identification of the Prima Diamond IV nectarine variety in the
narrative text on page 16035, third column, third paragraph of the
interim final rule be corrected to read Prima Diamond VI. The commenter
also requested that the numerical identification of the Prima Diamond
13 nectarine variety in the regulatory text on page 16040, third
column, paragraph (a)(4) of Sec. 916.356 be corrected to read Prima
Diamond XIII. The commenter further requested that the numerical
identification of the Prima Peach VIII peach variety in the narrative
text on page 16036, second column, paragraph one, and in the regulatory
text on page 16043, second column, paragraph (a)(6) of Sec. 917.459 of
the interim final rule be corrected to read Prima Peach 13. Such
corrections have been incorporated.
Nectarines
Section 916.356 of the order's rules and regulations specifies
minimum size requirements for fresh nectarines in paragraphs (a)(2)
through (a)(9). This rule continues in effect the revision of
Sec. 916.356 establishing variety-specific size requirements for 10
nectarine varieties that were produced in commercially-significant
quantities of more than 10,000 packages for the first time during the
1997 season. This rule also continues in effect the modification of the
variety-specific size requirements for 3 varieties of nectarines.
For example, one of the varieties recommended for addition to the
variety-specific size requirements was the Brite Pearl variety. Studies
of the size ranges attained by the Brite Pearl variety revealed all of
the nectarines of the Brite Pearl variety met sizes 40, 50, 60, 70, and
80. While the size distribution peaked on the size 60, 100 percent of
the fruit sized at a minimum of size 80.
A review of other varieties with the same harvesting period
indicated that Brite Pearl was also comparable to those varieties in
its size ranges. Thus, the recommendation to place the Brite Pearl
nectarine variety in the variety-specific size regulation at a size 80
was appropriate. Historical variety data such as this provides the NAC
with the information necessary to recommend the appropriate sizes at
which to regulate various nectarine varieties. In addition, producers
of the varieties affected are invited to comment when such size
recommendations are deliberated.
For reasons similar to those discussed in the preceding paragraphs,
the revision of the introductory text of paragraph (a)(4) of
Sec. 916.356 continues in effect the addition of the following
varieties: Diamond Bright, June Pearl, Prima Diamond VI, and Prima
Diamond XIII nectarine varieties. In the interim final rule, Prima
Diamond VI was incorrectly referred to as Prima Diamond IV and has been
corrected. In addition, the revision of the introductory text of
paragraph (a)(6) in Sec. 916.356 also continues in effect the addition
of the August Snow, Brite Pearl, Crystal Rose, Fire Pearl, Prima
Diamond XIX, and Prima Diamond XXIV nectarine varieties.
This rule also continues in effect the revision of the introductory
text of paragraph (a)(6) of Sec. 916.356 which removed 3 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 1997 season. Thus, the revision of the
introductory text of paragraph (a)(6) continues in effect to remove the
Bob Grand, Kism Grand, and 80P-1135 nectarine varieties.
This rule continues in effect the revision of the introductory text
of paragraph (a)(4) of Sec. 916.356 which modified the identification
of the Prima Diamond II nectarine variety; and continues in effect the
revision of the introductory text of paragraph (a)(6) of Sec. 916.356
which modified the identification of the Prima Diamond IV, Prima
Diamond VII, Prima Diamond VIII, and 424-195 nectarine varieties. The
names have been changed as follows: Prima Diamond II has been changed
to Prima Diamond IV, Prima Diamond IV has been changed to Prima Diamond
IX, Prima Diamond VII has been changed to Prima Diamond XVI, Prima
Diamond VIII has been changed to Prima Diamond XVIII, and 424-195 has
been changed to Late How Red, respectively. Such changes are done
routinely when the holder of a patented variety of nectarines changes
the variety's name. For that reason, all references to these varieties
were changed by the implementation of the interim final rule.
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.
Such removals continue in effect.
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 continues in effect minimum size
requirements for fresh nectarines consistent with expected crop and
market conditions.
Peaches
Section 917.459 of the order's rules and regulations specifies
minimum size requirements for fresh peaches in paragraphs (a)(2)
through (a)(5), and paragraphs (b) and (c). This rule continues in
effect the revision of Sec. 917.459 which established variety-specific
size requirements for 10 peach varieties that were produced in
commercially-significant quantities of more than 10,000 packages for
the first time during the 1997 season. This rule also continues in
effect the addition of new paragraph (a)(2) to Sec. 917.459(a), and the
redesignation of paragraphs (a)(2), (a)(3), (a)(4), (a)(5) as
paragraphs (a)(3), (a)(4), (a)(5), and (a)(6). New paragraph (a)(2) is
being used to regulate peaches at a minimum size 96. Conforming changes
required in paragraphs (b) and (c) of that section because the
paragraphs refer to the redesignated paragraphs also continue in
effect.
One of the varieties recommended for addition to the variety-
specific size requirements was the Spring Snow variety. Studies of the
size ranges attained by the Spring Snow variety revealed that none of
that variety met the smallest sizes, sizes 96, 88, and 84. While the
size distribution peaked on size 50, the minimum size encompassing 100
percent of the variety was size 80.
A review of other varieties of the same harvesting period indicated
that Spring Snow was also comparable to those varieties in its size
ranges. Thus, the recommendation to place the Spring Snow peach variety
in the variety-specific size regulation at a size 80 was appropriate
and continues in effect. Historical variety data such as this provides
the PCC with the information necessary to recommend the appropriate
sizes at which to regulate various peach varieties. In addition,
producers of the affected varieties are invited to comment when such
size recommendations are deliberated.
In Sec. 917.459 of the order's rules and regulations, new paragraph
(a)(2) is continued in effect and includes the
[[Page 44368]]
Earlitreat and Lady Sue peach varieties to be regulated at a minimum
size 96. The revision to the introductory text of paragraph (a)(5) is
continued in effect. That revision added the Pink Rose, Prima Peach IV,
Spring Snow, and White Dream peach varieties to that paragraph. The
revision to the introductory text of paragraph (a)(6) is also continued
in effect with a minor correction. That revision added the Madonna Sun,
Prima Peach VIII, Prima Peach 20, and Saturn (Donut) peach varieties.
This rule corrects the numerical identification of the Prima Peach VIII
variety to Prima Peach 13 per the comment received.
This rule also continues in effect a revision of Sec. 917.459
removing 6 peach varieties from the variety-specific size requirements
previously specified in that section, because less than 5,000 packages
of this variety were produced during the 1997 season. In Sec. 917.459,
the revision of the introductory text of paragraph (a)(5) is continued
in effect. That revision removed the June Sun, Kingscrest, Kings Red,
and Snow Flame peach varieties. The revision of the introductory text
of paragraph (a)(6) of Sec. 917.459 is continued in effect. That
revision removed the Prima Lady and Snow Ball peach varieties.
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. Such removals continue in
effect.
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 fruit sizes. 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 has determined
that this rule should have a beneficial impact on producers, handlers,
and consumers of California nectarines and peaches.
This rule continues in effect 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 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.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 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 service firms, which includes handlers,
are defined by the Small Business Administration (13 CFR 121.601) as
those whose annual receipts are less than $5,000,000. Small
agricultural producers have been defined as those having annual
receipts of less than $500,000. A majority of these handlers and
producers may be classified as small entities.
Under Secs. 916.52 and 917.41 of the orders, grade, size, maturity,
and container and pack requirements are established for fresh shipments
of California nectarines and peaches, respectively. Such requirements
are in effect on a continuing basis. This rule continues in effect
revisions of the requirements in the interim final rule to: (1) Correct
the address for the CTFA; (2) modify the lot stamping requirements; (3)
establish a single date by which handlers must file shipment reports;
(4) define and provide dimensions for a new container; (5) simplify
size marking requirements for consumer packages and establish marking
requirements for the new container; (6) modify weight counts for early
varieties; (7) authorize shipments of ``CA Utility'' quality fruit
during the 1998 season; (8) standardize container tolerances for mature
and well-matured nectarines; (9) revise varietal maturity and size
requirements to reflect recent changes in growing conditions; and (10)
revise names of some patented nectarine and peach varieties consistent
with name changes made by the patent holders. This rule also makes
corrections in the names of some nectarine and peach varieties and
corrects an inaccurate use of the word ``cartons'' in two sections, one
each for nectarines and peaches.
In Sec. 917.110 of the peach order's rules and regulations, the
address of the CTFA is listed for various communications (reports,
applications, submittals, requests, etc.). The CTFA moved its offices
from Sacramento to Reedley, California, and the interim final rule
corrected the address as recommended by the PCC. This rule continues in
effect the changes in the interim final rule. Updating the address of
the CTFA is a clarifying change which benefits producers and handlers.
In Secs. 916.115 and 917.150 of the nectarine and peach orders'
rules and regulations, respectively, handlers are required to stamp
containers of nectarines and peaches with the Federal-State Inspection
Service lot stamp number after inspection and prior to shipment. Such a
requirement is relatively easy and cost effective for larger handlers
who pack sufficient numbers of containers in a day to warrant the
presence of a full-time inspector who maintains control of the
handler's lot stamp. However, for smaller handlers who do not pack
sufficient numbers of containers in a day to warrant the presence of a
full-time inspector assigned to their facility, the requirement for a
lot stamp creates an unnecessary burden of increased packing time and
costs. Containers packed and placed on pallets in the inspector's
absence must be stamped after the inspector returns and performs an
inspection on samples of those containers. The increased use of new
container styles and a standardized pallet has created a nine-column
configuration of stacked containers consisting of eight columns
surrounding a ninth, center column. The center column is difficult to
mark with the lot stamp since a portion of the other eight columns must
be unstacked to allow access to the center column. The interim final
rule exempted the containers in the center column of the nine-column
configuration from lot stamp marking requirements, thereby decreasing
handling time and costs for smaller handlers who have only intermittent
inspections in a day. This change should have a positive impact on the
affected handlers. This exemption is currently estimated to affect
fewer than 10 handlers and less than 10,000 boxes of nectarines and
peaches.
Prior to the issuance of the interim final rule, Secs. 916.160 and
917.178 of the orders' rules and regulations required handlers to
report shipments of each
[[Page 44369]]
nectarine and peach variety, respectively, not later than the tenth day
of the month following the month in which the varieties were shipped.
As a result, handlers filed approximately three shipment reports with
the committees per season, resulting in approximately 750 shipment
reports for all nectarine handlers and approximately 900 shipment
reports for all peach handlers. Each shipment report is estimated to
take one hour for handlers to complete. In an effort to make reporting
less burdensome to handlers, the NAC and PCC recommended the
establishment of a single date of November 15 of each year as a
reporting deadline, no matter when shipments of each nectarine or peach
variety were made. This single reporting deadline simplifies the
reporting requirements so that handlers need only file one report each
for nectarine and peach shipments upon conclusion of the handling
season. This relaxation of the reporting requirements and burden for
the benefit of handlers continues in effect from the interim final
rule. This relaxation is estimated to reduce burden hours for nectarine
handlers to approximately 250 hours from 750 hours and for peach
handlers to approximately 300 from 900 hours.
In Secs. 916.350 and 917.442 of the rules regulating nectarines and
peaches, respectively, several container types are identified by a
name, such as 12B or 22G, and then further defined by their dimensions
and weight-holding capacities. This rule continues in effect the
definition and description of the new container, the No. 32 (shoebox),
which is more easily configured to fit a standard 40 by 48 inch pallet.
Both the container and the pallet are increasingly utilized by the
industry because they are favored by retailers. The addition of this
container to the orders' rules and regulations provides increased
flexibility for handlers by providing yet another approved container
for shipments of nectarines and peaches.
Sections 916.350 and 917.442 of the orders' rules and regulations
require specified container markings. To facilitate the use of the No.
32 standard box and consumer packages, the container marking
requirements implemented by the interim final rule continue in effect.
These requirements eliminate the need to mark both the count and size
of the fruit in the box. Instead, only one marking, either for fruit
size or count of fruit, is required. Eliminating the dual marking
requirement eases the burden on handlers.
Consumer packages of nectarines and peaches are smaller boxes
without adequate space on the outside ends for marking both the fruit
size and count of fruit in the box. The No. 32 box has become the
industry standard for tray-pack arrangements. Including both the size
and count of fruit on these containers is unnecessary since the number
of fruit in the box is also the size of the fruit in the box. Moreover,
requiring dual markings on these two boxes placed a burden on handlers
who prefer to minimize markings on the outside of the boxes. Prior to
the modified marking requirements, the outside of the boxes were marked
with the size of the fruit, e.g., ``88 size'' or ``80 size,'' and the
count, e.g., ``88 count'' or ``80 count,''. Continuing to eliminate the
requirement for dual marking on these containers is consistent with the
rules and regulations of the orders, and is a relaxation of the marking
requirements.
In Secs. 916.350 and 917.442 of the orders' rules and regulations
concerning nectarines and peaches, respectively, the use of container
markings is specified. Container markings based on weight standards
differ for early-season nectarines and peaches, compared to those
marketed later in the season. The NAC and PCC routinely conduct tests
to determine the optimum weight-count standards for such early-season,
mid-season, and late-season nectarines and peaches, respectively.
Acting upon information from a handler of early-season nectarines and
peaches, the NAC and PCC determined that while early-season nectarines
and peaches frequently attain a size to adequately fill the molded
forms when tray-packed, early-season nectarines and peaches are not as
dense as mid-season and late-season nectarines and peaches, and thus,
failed to meet the current weight standards set for specified sizes
when converted to volume-filled containers. When such tests were
performed by the NAC and PCC in 1994 and 1995, early-season nectarines
and peaches were not predominately packed in volume-filled containers.
More commonly, early-season nectarines and peaches were packed in tray-
packs. However, the practice of converting tray-packed containers of
early-season nectarines and peaches to volume-filled containers has
increased and more information about the characteristics of early-
season nectarines and peaches has come to light. In reviewing this
information, the NAC and PCC determined that the weight-count standards
for five early-season nectarine and peach sizes needed to be adjusted
by adding one piece of fruit to the 16-pound sample of fruit of these
sizes to accommodate volume-filled container shipments to the benefit
of producers and handlers.
Therefore, the NAC and PCC unanimously recommended, and the interim
final rule implemented, modifications to the early-season weight-count
standards for five sizes of nectarines and peaches by the addition of
one piece of fruit to each weight-count standard then in effect for
sizes 56 to 72. Table 1 of paragraphs (a)(4)(iv) in Secs. 916.350 and
917.442 of the regulations were modified by adding an additional
nectarine or peach, respectively, to sizes 56, 60, 64, 70, and 72. The
changes permit handlers to more easily convert tray-packed nectarines
and peaches to volume-filled containers and decrease the handling costs
associated with that conversion. Thus, the changes continue in effect.
In Secs. 916.350 and 917.442 of the orders regulating nectarines
and peaches, respectively, lower-quality nectarines and peaches were
authorized for shipment as ``CA Utility'' as an experiment for the 1996
season only. Such authorization was continued during the 1997 season.
This rule continues in effect the authority in the interim final rule
for the continued use of ``CA Utility'' quality fruit for the 1998
season with a continued in-house statistical review to be conducted by
the NAC and PCC at the end of the 1998 season. During the 1996 season,
the Department authorized the shipment of nectarines and peaches which
were of a lower quality than the minimum permitted for previous
seasons. During 1996, there were approximately 210,000 boxes of
nectarines and approximately 366,000 boxes of peaches packed as ``CA
Utility,'' or 1.1 percent and 1.9 percent of fresh shipments,
respectively. During 1997, there were approximately 230,000 boxes of
nectarines and 217,000 boxes of peaches packed as ``CA Utility,'' or
1.1 percent and 1.0 percent of fresh shipments, respectively. Continued
availability of ``CA Utility'' quality fruit is expected to have a
positive impact on producers, handlers, and consumers by permitting
more nectarines and peaches to be shipped into fresh market channels,
without adversely impacting the market for higher quality fruit.
The interim final rule standardized the container tolerances for
nectarines with those in effect for peaches. The revision of the
container tolerances for nectarines simplified handling requirements
for the industry and continues to apply.
Sections 916.356 and 917.442 of the orders' rules and regulations
for nectarines and peaches, respectively, currently establish minimum
maturity levels. This rule continues in effect the
[[Page 44370]]
annual adjustments to the maturity requirements for several varieties
of nectarines and peaches implemented by the interim final rule.
Maturity requirements are based on maturity measurements generally
using maturity guides (e.g., color chips), as reviewed by SPI. Such
maturity guides provide producers, handlers, and SPI with objective
tools for measuring the maturity of different varieties of nectarines
and peaches. Such maturity guides are reviewed annually by SPI to
determine the appropriate guide for each nectarine and peach variety.
These annual adjustments reflect changes in the maturity patterns of
nectarines and peaches as experienced over the previous seasons'
inspections. Adjustments in the guides ensure that fruit has met an
acceptable level of maturity, thus ensuring consumer satisfaction while
benefitting nectarine and peach producers and handlers.
Currently, in Sec. 916.356 of the order's rules and regulations for
nectarines and Sec. 917.459 of the order's rules and regulations for
peaches, minimum sizes for various varieties of nectarines and peaches
are established. This rule continues in effect adjustments made by the
interim final rule to the minimum sizes authorized for various
varieties of nectarines and peaches for the 1998 season. Minimum size
regulations are put in place to allow fruit to stay on the tree for a
greater length of time. Increased growing time not only improves
maturity, but also improves fruit size. Increased fruit size increases
the number of packed boxes per acre. Increased fruit size and maturity
also provide greater consumer satisfaction and, therefore, more repeat
purchases by consumers. Repeat purchases and consumer satisfaction
benefit producers and handlers alike. Adjustments to minimum sizes of
nectarines and peaches are recommended each year by the NAC and PCC
based upon historical data, and producer and handler information
regarding sizes which the different varieties attain.
This action does not impose any additional reporting and
recordkeeping requirements on either small or large handlers. In fact,
this action continues to reduce the reporting requirements and burden
by allowing handlers to file only one report each for nectarine and
peach shipments upon conclusion of the handling season. As with all
Federal marketing order programs, reports and forms are periodically
reviewed to reduce information requirements and duplication by industry
and public sector agencies. In accordance with the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35), the information collection
requirements that are contained in Parts 916 and 917 have been
previously approved by the Office of Management and Budget (OMB) and
have been assigned OMB Nos. 0581-0072 and 0581-0080, respectively.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule. However, as previously
stated, nectarines and peaches under the orders have to meet certain
requirements set forth in the standards issued under the Agricultural
Marketing Act of 1946 (7 U.S.C. 1621 through 1627). Standards issued
under the Agricultural Marketing Act of 1946 are otherwise voluntary.
In addition, the committees' meetings were widely publicized
throughout the nectarine and peach industries and all interested
parties were invited to attend the meetings and participate in
committee deliberations on all issues. These meetings are held annually
during the first week of December. Like all committee meetings, the
December 4, 1997, meetings were public meetings and all entities, both
large and small, were able to express views on these issues. The
committees themselves are composed of producers, the majority of whom
are small entities. Finally, interested persons were invited to submit
information on the regulatory and informational impacts of this action
on small businesses in the interim final rule. No such comments were
received.
An interim final rule concerning this action was published in the
Federal Register on April 1, 1998. This rule was also made available
through the Internet by the Office of the Federal Register. The
Committees' staff made copies available to the industry through the
publication of the handler bulletins for nectarines and peaches. The
bulletins are a compilation of the orders' rules and regulations
prepared in a more user-friendly format. That rule provided for a 60-
day comment period which ended June 1, 1998. One comment was received
from the Field Director for the CTFA. As discussed earlier, the
corrections requested by the commenter have been made.
After consideration of all relevant matters presented, the
information and recommendations submitted by the committees, the
comment received, and other information, it is found that finalizing
the interim final rule, with corrections as indicated, as published in
the Federal Register (63 FR 16032, April 1, 1998), 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.
Accordingly, the interim final rule amending 7 CFR parts 916 and
917, which was published at 63 FR 16032 on April 1, 1998, is adopted as
a final rule with the following changes:
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
Sec. 916.350 [Amended]
2. Section 916.350, paragraph (a)(4)(i) is amended by removing the
words ``No. 22G standard lug boxes, cartons;'' and adding in their
place the words ``No. 22G standard lug boxes;''.
Sec. 916.356 [Amended]
3. Section 916.356, paragraph (a)(4) introductory text is amended
by revising the words ``, Prima Diamond 13,'' to read ``, Prima Diamond
XIII,''.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
Sec. 917.442 [Amended]
4. Section 917.442, paragraph (a)(4)(i) is amended by removing the
words ``No. 22G standard lug boxes, experimental containers, cartons;''
and adding in their place the words ``No. 22G standard lug boxes or
experimental containers;''.
Sec. 917.459 [Amended]
5. Section 917.459, paragraph (a)(6) introductory text is amended
by revising the words ``, Prima Peach VIII,'' to read ``, Prima Peach
13,''.
Dated: August 12, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-22254 Filed 8-18-98; 8:45 am]
BILLING CODE 3410-02-P
