[Federal Register: August 2, 2005 (Volume 70, Number 147)]
[Rules and Regulations]
[Page 44243-44249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au05-4]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV05-916-1 FIR]
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 (USDA) is adopting, as a final
rule, with changes, an interim final rule revising the handling
requirements for California nectarines and peaches by modifying the
grade, size, maturity, and pack requirements for fresh shipments of
these fruits, beginning with 2005 season shipments. This rule also
authorizes continued shipments of ``CA Utility'' quality nectarines and
peaches, and revises weight-count standards for fruit in volume-filled
containers. The marketing orders regulate the handling of nectarines
and peaches grown in California and are administered locally by the
Nectarine Administrative and Peach Commodity Committees (committees).
This rule enables handlers to continue to ship fresh nectarines and
peaches in a manner that meets consumer needs, increases returns to
producers and handlers, and reflects current industry practices.
EFFECTIVE DATE: September 1, 2005.
FOR FURTHER INFORMATION CONTACT: California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, Telephone (559) 487-5901, Fax: (559) 487-5906; or George
Kelhart, Technical Advisor, Marketing Order Administration Branch,
Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW.,
STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491; Fax:
(202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
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 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.''
USDA 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 USDA 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, USDA 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 USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
Under the orders, grade, size, maturity, pack and container
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 7, 2004, and unanimously
recommended that these handling requirements be revised for the 2005
season, which began about the first week of April. The changes will:
(1) revise varietal maturity, quality, and size requirements to better
reflect current industry practices; (2) authorize continued shipments
of ``CA Utility'' quality fruit during the 2005 season; and (3) adjust
weight-count standards for fruit packed in volume-filled containers.
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
[[Page 44244]]
the public and interested persons are encouraged to express their views
at these meetings. The committees held such meetings on December 7,
2004. USDA 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.
No official crop estimate was available at the time of the
committees' December 7, 2004, meetings because the nectarine and peach
trees were dormant. The committees subsequently made crop estimates at
their meetings on April 24, 2005. The 2005 nectarine crop was estimated
to be approximately 20,682,000 containers, and the 2005 peach crop was
estimated to be approximately 21,180,000 containers. These crop
estimates are slightly larger than the 2004 crops, which totaled
19,860,000 containers of nectarines and 20,585,000 containers of
peaches.
Grade and 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 required
nectarines to meet a modified U.S. No. 1 grade. Specifically,
nectarines were required to meet U.S. No. 1 grade requirements, except
for a slightly tighter requirement for scarring and a more liberal
allowance for misshapen fruit. Prior to the 1996 season, Sec. 917.459
required peaches to meet the requirements of a U.S. No. 1 grade, except
for a more liberal allowance for open sutures that were not ``serious
damage.''
This rule continues in effect the revisions of Sec. Sec. 916.350,
916.356, 917.442, and 917.459 to permit shipments of nectarines and
peaches meeting ``CA Utility'' quality requirements during the 2005
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 have been permitted
each season since 1996.
Studies conducted by the NAC and PCC in 1996 indicated that some
consumers, retailers, and foreign importers found the lower-quality
fruit acceptable in some markets. When shipments of ``CA Utility''
nectarines were first permitted in 1996, they represented 1.1 percent
of all nectarine shipments, or approximately 210,000 containers.
Shipments of ``CA Utility'' nectarines reached a high of 6 percent
(1,408,362 containers) during the 2003 season.
Shipments of ``CA Utility'' peaches totaled 1.9 percent of all
peach shipments, or approximately 366,000 containers, during the 1996
season. Shipments of ``CA Utility'' peaches reached a high of 5.6
percent of all peach shipments (1,231,000 containers) during the 2002
season.
Handlers have commented that the availability of the ``CA Utility''
quality option lends flexibility to their packing operations. They have
noted that they now have the opportunity to remove marginal nectarines
and peaches from their U.S. No. 1 containers and place this fruit in
containers of ``CA Utility.'' This flexibility, the handlers note,
results in better quality U.S. No. 1 packs without sacrificing fruit.
The Tree Fruit Quality Subcommittee met on November 30, 2004, and
recommended unanimously to the NAC and PCC to continue shipments of
``CA Utility'' quality nectarines and peaches. Subsequently, the NAC
and PCC voted unanimously at their December 7, 2004, meetings to
authorize continued shipments of ``CA Utility'' quality fruit during
the 2005 season.
Accordingly, based upon the recommendations, the revisions to
paragraph (d) of Sec. Sec. 916.350 and 917.442, and paragraph (a)(1)
of Sec. Sec. 916.356 and 917.459 continue in effect to permit
shipments of nectarines and peaches meeting ``CA Utility'' quality
requirements during the 2005 season, on the same basis as shipments
since the 2000 season.
Maturity Requirements
In Sec. Sec. 916.52 and 917.41, authority is provided 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. For most varieties, ``well-
matured'' determinations for nectarines and peaches are made using
maturity guides (e.g., color chips, along with other maturity tests as
applied by the inspection service). These maturity guides are reviewed
each year by the Shipping Point Inspection Service (SPI) to determine
whether they need to be changed, based upon the most-recent information
available on the individual characteristics of each nectarine and peach
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 Sec. Sec. 916.356 and
917.459, for nectarines and peaches, respectively.
The requirements in the 2005 handling regulations are the same as
those that appeared in the 2004 handling regulations with a few
exceptions. Those exceptions 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 the revision of Table 1 of paragraph
(a)(1)(iv) of Sec. 916.356 to add maturity guides for eleven varieties
of nectarines. Specifically, SPI recommended adding maturity guides for
the Crimson Baby variety to be regulated at the G maturity guide; for
the Alta Red, Grand Candy, Kay Glo, Kay Sweet, Red Roy and Shay Sweet
varieties at the J maturity guide; and for the August Fire, Candy Gold,
Prince Jim I and Sugar Queen varieties to be regulated at the L
maturity guide.
The NAC recommended these maturity guide 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.
Peaches: Requirements for ``well-matured'' peaches are specified in
Sec. 917.459 of the order's rules and regulations. This rule continues
in effect revisions to Table 1 of paragraph (a)(1)(iv) of Sec. 917.459
to add maturity guides for six peach varieties. Specifically, SPI
recommended adding maturity guides for the Island Princess variety to
be regulated at the H maturity guide; the Bev's Red variety to be
regulated at the I maturity guide; and the Prima Peach IV, Spring Gem,
Sweet Amber, and Zee Diamond varieties to be regulated at the J
maturity guide.
The PCC also recommended adding the Burpeachtwo (Henry II[reg])
variety to the table for regulation at the J maturity guide, but that
variety had already been added to the table for regulation at the J
maturity guide in 2004 (7 July 2004, 69 FR 41120). Thus, the revision
of Table 1 of paragraph (a)(1)(iv) of Sec. 917.459 continues in effect
to reflect the recommended addition of only six varieties.
The NAC and PCC recommended these maturity guide 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 and peach varieties in
production.
[[Page 44245]]
Size Requirements
Both orders provide authority (in Sec. Sec. 916.52 and 917.41) to
establish size requirements. Size regulations encourage producers to
leave fruit on the tree longer, which improves both size and maturity
of the fruit. Acceptable fruit size provides greater consumer
satisfaction and promotes repeat purchases, and, therefore, increases
returns to producers and handlers. In addition, increased fruit size
results in increased numbers of packed containers of nectarines and
peaches per acre, also a benefit to producers and handlers.
Varieties recommended for specific size regulations 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 attained by the regulated varieties and
those varieties with the potential to become regulated, and determine
whether revisions to the size requirements are appropriate.
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 to establish variety-specific minimum size requirements
for nine varieties of nectarines that were produced in commercially
significant quantities of more than 10,000 containers for the first
time during the 2004 season. This rule also continues in effect the
removal of the variety-specific minimum size requirements for fifteen
varieties of nectarines whose shipments fell below 5,000 containers
during the 2004 season.
For example, one of the varieties recommended for addition to the
variety-specific minimum size requirements is the La Pinta variety of
nectarines, recommended for regulation at a minimum size 80. Studies of
the size ranges attained by the La Pinta variety revealed that 100
percent of the containers met the minimum size of 80 during the 2001,
2002, and 2003 seasons. Sizes ranged from size 30 to size 80, with 4.9
percent of the fruit in the 30 sizes, 34.3 percent of the packages in
the 40 sizes, 41.1 percent in the 50 sizes, 19.5 percent in the 60
sizes, 0.2 percent in the 70 sizes and 0 percent in the size 80, for
the 2003 season. However, the fruit sized down to the 80 sizes during
the two previous seasons, and setting the minimum size at size 70 would
not be appropriate at this time.
A review of other varieties with the same harvesting period
indicated that the La Pinta variety was also comparable to those
varieties in its size ranges for that time period. Discussions with
handlers known to handle the variety confirm this information regarding
minimum size and harvesting period, as well. Thus, the recommendation
to place the La Pinta variety in the variety-specific minimum size
regulation at a minimum size 80 is appropriate. This recommendation
results from size studies conducted over a three-year period.
Historical 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 and handlers of the
varieties affected are personally invited to comment when such size
recommendations are deliberated. Producer and handler comments are also
considered at both NAC and subcommittee meetings when the staff
receives such comments, either in writing or verbally.
For reasons similar to those discussed in the preceding paragraph,
the revision to the introductory text of paragraph(a)(3) of Sec.
916.356 continues in effect to include the Red Jewel and Zee Fire
varieties; the revision of the introductory text of paragraph (a)(4) of
Sec. 916.356 continues in effect to include the Diamond Pearl and Kay
Fire varieties; and the revision to the introductory text of paragraph
(a)(6) of Sec. 916.356 continues in effect to include the Burnectfour
(Summer Flare[reg] 35), Burnectseven (Summer Flare[reg] 28), Honey Dew,
La Pinta and Mike's Red nectarine varieties.
This rule also continues in effect the revision of the introductory
text of paragraphs (a)(3), (a)(4), (a)(5) and (a)(6) of Sec. 916.356
to remove fifteen varieties from the variety-specific minimum size
requirements specified in these paragraphs because less than 5,000
containers of each of these varieties were produced during the 2004
season. Specifically, the revision of the introductory text of
paragraph (a)(3) of Sec. 916.356 continues in effect to remove the May
Kist nectarine variety; the revision of the introductory text of
paragraph (a)(4) of Sec. 916.356 continues in effect to remove the
Sparkling May and White Sun nectarine varieties; the revision of the
introductory text of paragraph (a)(5) continues in effect to remove the
Red May nectarine variety; and the revision of the introductory text of
paragraph (a)(6) of Sec. 916.356 continues in effect to remove the
Candy Sweet, Flame Glo, Grand Diamond, June Lion, King Jim, Ruby
Bright, Scarlet Red, Summer Jewel, Sunny Red, Sweet White and White
September nectarine varieties.
Nectarine varieties removed from the nectarine variety-specific
minimum size requirements become subject to the non-listed variety size
requirements specified in paragraphs (a)(7), (a)(8), and (a)(9) of
Sec. 916.356.
Peaches: Section 917.459 of the order's rules and regulations
specifies minimum size requirements for fresh peaches in paragraphs
(a)(2) through (a)(6), and paragraphs (b) and (c). This rule continues
in effect the revision of Sec. 917.459 to establish variety-specific
minimum size requirements for thirteen peach varieties that were
produced in commercially significant quantities of more than 10,000
containers for the first time during the 2004 season. This rule also
continues in effect the removal of the variety-specific minimum size
requirements for ten varieties of peaches whose shipments fell below
5,000 containers during the 2004 season.
For example, one of the varieties recommended for addition to the
variety-specific minimum size requirements is the Ivory Queen variety
of peaches, which was recommended for regulation at a minimum size 80.
Studies of the size ranges attained by the Ivory Queen variety revealed
that 100 percent of the containers met the minimum size of 80 during
the 2002 and 2003 seasons. The sizes ranged from size 30 to size 80,
with 0.3 percent of the containers meeting the size 30, 36.1 percent
meeting the size 40, 47.7 percent meeting the size 50, 13.1 percent
meeting the size 60, 2.2 percent meeting the size 70 and 0.5 percent
meeting the size 80 in the 2003 season.
A review of other varieties with the same harvesting period
indicated that the Ivory Queen variety was also comparable to those
varieties in its size ranges for that time period. Discussions with
handlers known to pack the variety confirm this information regarding
minimum size and the harvesting period, as well. Thus, the
recommendation to place the Ivory Queen variety in the variety-specific
minimum size regulation at a minimum size 80 is appropriate. Although
most other size recommendations for peaches result from size studies
conducted over a three-year period, data on the Ivory Queen variety for
earlier years is not available because the plantings of this variety
did not bear fruit before 2002. Unusually large plantings of the Ivory
Queen variety led to the rapid production of over 10,000 containers in
just two years, and indicated inclusion in the variety-specific minimum
size requirements.
[[Page 44246]]
Historical 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 and handlers of the
varieties affected are personally invited to comment when such size
recommendations are deliberated. Producer and handler comments are also
considered at both PCC and subcommittee meetings when the staff
receives such comments, either in writing or verbally.
For reasons similar to those discussed in the preceding paragraph,
the revision of the introductory text of paragraph (a)(2) of Sec.
917.459 continues in effect to include the April Snow and Sugar Snow
peach varieties; the revision of the introductory text of Sec. (a)(5)
of Sec. 917.459 continues in effect to include the Ivory Queen peach
variety; and the revision of the introductory text of paragraph (a)(6)
of Sec. 917.459 continues in effect to include the Autumn Rich, Cherry
Red, Crimson Queen, Early O'Henry, Henry III, Henry IV, Last Tango,
Ruby Queen, Sierra Rich and 244LE379 peach varieties.
This rule also continues in effect the revision of the introductory
text of paragraph (a)(5) of Sec. 917.459 to remove the Redtop, Sugar
May and 172LE White Peach (Crimson Snow/Sunny Snow) peach varieties;
and continues in effect the revision of the introductory paragraph
(a)(6) of Sec. 917.459 to remove the Autumn Fire, Fairtime, June
Pride, Late September Snow, Queen Lady, Ruby Gold and Sugar Red peach
varieties from the variety-specific minimum size requirements specified
in the section because less than 5,000 containers of each of these
varieties was produced during the 2004 season.
Peach varieties removed from the peach variety-specific minimum
size requirements become subject to the non-listed variety size
requirements specified in paragraphs (b) and (c) of Sec. 917.459.
The NAC and PCC recommended these changes in the minimum size
requirements based on a continuing review of the sizing and maturity
relationships for these nectarine and peach varieties, and the consumer
acceptance levels for various fruit sizes. This rule continues in
effect the establishment of minimum size requirements for fresh
nectarines and peaches consistent with expected crop and market
conditions.
Weight-Count Standards
Under the provisions of Sec. Sec. 916.52 and 917.41 of the orders,
the NAC and PCC, respectively, are also authorized to establish weight-
count standards for packed containers of fruit. These standards define
a maximum number of peaches in a 16-pound sample when such fruit, which
may be packed in tray-packed containers, is converted to volume-filled
containers. In Sec. Sec. 916.350 and 917.442 of the orders' rules and
regulations, weight-count standards are established for all varieties
of nectarines and peaches (except the Peento type peaches), in Tables 1
and 2 of paragraph (a)(5)(iv).
Weight-count standards differ for fruit packed early in the season
and that packed later. Earlier fruit tends to be less dense than later
fruit. While the earlier fruit sizes are adequate to fill the tray
cavities in tray-packed containers, more pieces of fruit are required
to meet the 16-pound sample standard for volume-filled fruit. The NAC
and PCC routinely conduct tests to determine the optimum weight-count
standards for early, mid-season and late-season fruit. Occasionally,
adjustments are made to the weight-count standards to ensure
equivalence between the pack styles and permit handlers to more easily
convert tray-packed fruit to volume-filled containers.
Weight-count standards have also differed between nectarine and
peaches historically because of the difference in shape between the two
commodities. However, continued breeding of the two fruits has resulted
in more uniformity of shape and size between the two. In response to
consumer needs, handlers have sought a more generic sizing system to
apply to both nectarines and peaches.
Finally, the industry has recently adopted a new packing container
with dimensions different from those previously used. Conforming
changes to the trays used to pack the fruit into the new containers
resulted in reductions in cavity sizes in some cases to accommodate the
same fruit counts as in the old containers. This led to a wider
discrepancy between the sizes of fruit packed in both pack styles
throughout the season.
In an effort to provide a more generic sizing of the two
commodities, to smooth the transition from early-season to mid-season
and late-season fruit sizes, and to standardize the conversion from
tray-packing to volume-filling fruit, the committees' staff conducted
weight-count surveys during the 2004 packing season. With the data
collected, they were able to determine the most optimum weight-counts
for containers of volume-filled nectarines and peaches of various fruit
sizes throughout the season, given the new containers and trays. The
committees' staff prepared new weight-count tables, which were reviewed
by the Size Nomenclature Review Group at their meetings on September 3
and September 21, 2004, and by the Tree Fruit Quality Subcommittee at
their meetings on September 13, November 9, and November 30, 2004. At
their meetings on December 7, 2004, both the NAC and PCC unanimously
recommended revision of the weight-count standards tables in the
orders' rules and regulations to reflect the staff's findings.
Nectarines: This rule continues in effect the revision of Tables 1
and 2 of paragraph (a)(5)(iv) of Sec. 916.350. Such revisions require
continuation of the conforming modifications to the text of Sec.
916.356, paragraphs (a)(4)(ii), (a)(6)(ii), (a)(8)(ii), and (a)(9)(ii)
that increase the maximum number of nectarines in a 16-pound sample for
the sizes regulated in those paragraphs.
Peaches: Similarly, this rule continues in effect the revision of
Tables 1 and 2 of paragraph (a)(5)(iv) of Sec. 917.442 to reflect the
staff's study findings. Additionally, two new weight-count standards
for peaches continue to be added to the tables. These two new standards
are for large sizes previously without weight-count assignments, and
were determined from the data collected.
Such revisions require continuation of the conforming modifications
to the text of Sec. 917.459, paragraph (a)(5)(iii) that increase the
maximum number of peaches in a 16-pound sample for the size regulated
in that paragraph.
This rule reflects the committees' and USDA's appraisal of the need
to revise the handling requirements for California nectarines and
peaches, as specified. USDA believes that continuing this rule in
effect will have a beneficial impact on producers, handlers, and
consumers of fresh California nectarines and peaches.
This rule continues in effect the establishment of 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 to provide
fruit desired by consumers. This rule continues in effect the
establishment and maintenance of orderly marketing conditions for these
fruits in the interests of producers, handlers, and consumers.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the
[[Page 44247]]
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.
Industry Information
There are approximately 207 California nectarine and peach handlers
subject to regulation under the orders covering nectarines and peaches
grown in California, and about 1,500 producers of these fruits in
California. Small agricultural service firms, which include handlers,
are defined by the Small Business Administration [13 CFR 121.201] as
those whose annual receipts are less than $5,000,000. Small
agricultural producers are defined by the Small Business Administration
as those having annual receipts of less than $750,000. A majority of
these handlers and producers may be classified as small entities.
The committees' staff has estimated that there are fewer than 26
handlers in the industry who could be defined as other than small
entities. For the 2004 season, the committees' staff estimated that the
average handler price received was $8.00 per container or container
equivalent of nectarines or peaches. A handler would have to ship at
least 625,000 containers to have annual receipts of $5,000,000. Given
data on shipments maintained by the committees' staff and the average
handler price received during the 2004 season, the committees' staff
estimates that small handlers represent approximately 87 percent of all
the handlers within the industry.
The committees' staff has also estimated that fewer than 20 percent
of the producers in the industry could be defined as other than small
entities. For the 2004 season, the committees' staff estimated the
average producer price received was $5.00 per container or container
equivalent for nectarines and peaches. A producer would have to produce
at least 150,000 containers of nectarines and peaches to have annual
receipts of $750,000. Given data maintained by the committees' staff
and the average producer price received during the 2004 season, the
committees' staff estimates that small producers represent more than 80
percent of the producers within the industry.
With an average producer price of $5.00 per container or container
equivalent, and a combined packout of nectarines and peaches of
approximately 40,422,900 containers, the value of the 2004 packout is
estimated to be $202,114,500. Dividing this total estimated grower
revenue figure by the estimated number of producers (1,500) yields an
estimate of average revenue per producer of about $134,743 from the
sales of peaches and nectarines.
Regulatory Revisions
Under Sec. Sec. 916.52 and 917.41 of the orders, grade, size,
maturity, container and pack requirements are established for fresh
shipments of California nectarines and peaches, respectively. Such
requirements are in effect on a continuing basis. The NAC and PCC met
on December 7, 2004, and unanimously recommended that these handling
requirements be revised for the 2005 season. These recommendations had
been presented to the committees by various subcommittees, each charged
with review and discussion of the changes. The changes: (1) authorize
shipments of ``CA Utility'' quality fruit to continue during the 2005
season; (2) adjust weight-count standards for fruit in volume filled
containers; and (3) revise varietal maturity, quality, and size
requirements to reflect changes in production and marketing practices.
Grade and Quality Requirements--Discussions and Alternatives
In 1996, Sec. Sec. 916.350 and 917.442 were revised to permit
shipments of ``CA Utility'' quality nectarines and peaches as an
experiment during the 1996 season only. Such shipments have
subsequently been permitted each season. Since 1996, shipments of ``CA
Utility'' have ranged from 1 to 5 percent of total nectarine and peach
shipments. This rule continues in effect the authority to continue
shipments of ``CA Utility'' quality nectarines and peaches during the
2005 season.
The Tree Fruit Quality Subcommittee met on November 30, 2004, and
unanimously agreed that the ``CA Utility'' quality requirements that
are currently in place should be continued. Also, not authorizing such
shipments would be an abrupt departure from their current practices.
The NAC and PCC also unanimously recommended such continuation at their
meetings on December 7, 2004, and have done so continuously since such
shipments were first authorized in 1996.
Minimum Maturity and Size Levels--Discussions and Alternatives
Sections 916.356 and 917.459 establish minimum maturity levels.
This rule continues in effect the annual adjustments to the maturity
requirements for several varieties of nectarines and peaches. Maturity
requirements are based on maturity measurements generally using
maturity guides (e.g., color chips), as recommended by Shipping Point
Inspection. Such maturity guides are reviewed annually by SPI to
determine the appropriate guide for each nectarine and peach variety.
These annual adjustments reflect refinements in measurements of the
maturity characteristics of nectarines and peaches as experienced over
previous seasons' inspections. Adjustments in the guides utilized
ensure that fruit has met an acceptable level of maturity, ensuring
consumer satisfaction while benefiting nectarine and peach producers
and handlers.
Currently, in Sec. 916.356 of the nectarine order's rules and
regulations, and in Sec. 917.459 of the peach order's rules and
regulations, minimum sizes for various varieties of nectarines and
peaches, respectively, are established. This rule continues in effect
the adjustments to the minimum sizes authorized for various varieties
of nectarines and peaches for the 2005 season. Minimum size regulations
are put in place to encourage producers to leave fruit on the trees for
a longer period of time. This increased growing time not only improves
maturity, but also increases fruit size. Increased fruit size increases
the number of packed containers per acre, and coupled with heightened
maturity levels, also provides greater consumer satisfaction, fostering
repeat purchases. Such improved consumer satisfaction and repeat
purchases benefit both producers and handlers alike.
Annual adjustments to minimum sizes of nectarines and peaches, such
as these, are recommended by the NAC and PCC based upon historical
data, producer and handler information regarding sizes attained by
different varieties, and trends in consumer purchases.
An alternative to such action would include not establishing
minimum size regulations for these new varieties. Such an action would
ultimately increase the amount of less acceptable fruit being marketed
to consumers, and would be contrary to the long-term interests of
producers, handlers, and consumers. For these reasons, this alternative
was not recommended.
[[Page 44248]]
Weight-Count Standards--Discussions and Alternatives
Sections 916.350 and 917.442 also establish weight-count standards
for fruit packed in volume-filled containers. These standards define a
maximum number of peaches in a 16-pound sample when such fruit, which
may be packed in tray-packed containers, is converted to volume-filled
containers.
Industry-wide adoption of a new container led to the
reconfiguration of the trays commonly used in packing tray-packed
containers. Some of the tray cavity sizes were modified to conform to
the dimensions of the new container. These modifications resulted in
slightly smaller fruit being packed into some sizes, which led to an
unacceptable discrepancy between the sizes of fruit packed in volume-
filled containers and that in tray-packed containers.
Additionally, the difference in density between early-season and
mid-season to late-season fruit causes an abrupt change in sizes during
the seasonal transition. Handlers have reported that marketing through
that period is difficult because of the discrepancy between sizes of
earlier fruit and later fruit, and have sought a modified sizing method
that would smooth that transition.
Finally, continuous breeding has led to an increasing similarity of
fruit shapes between nectarines and peaches. The committees desire to
develop a more uniform sizing system.
The Size Nomenclature Review Group met several times during 2003
and 2004 to discuss revision of the weight-count standards. Although
the group considered the transition to a per pound sizing system
similar to that used by the plum industry, they felt that the nectarine
and peach industries would be better served by adjusting the weight-
count standards already in place. The Size Nomenclature Review Group
also believed that they could recommend modifications to the standards
that would smooth the marketing transition between varieties packed in
the early season and those packed in the mid-season to late-season.
The committee staff was directed to collect data during the 2004
season from which revision recommendations could be made. Extensive
sampling of both nectarines and peaches of various sizes provided the
information needed for the committee to make recommendations regarding
revisions to the weight-count standards. The Tree Fruit Quality
Subcommittee voted unanimously to recommend the adjustments to the NAC
and PCC at their meeting on November 9, 2004. The NAC and PCC
unanimously recommended the changes to the regulations at their meeting
on December 7, 2004.
The committees discussed various alternatives to this action,
including leaving the weight-count standards unchanged or adopting a
per-pound fruit sizing system similar to that used in the plum
industry. However, the committees believe that failure to make changes
would not take into account differences between the various pack
styles. Also, the data collected did not support adoption of a per-
pound fruit sizing system at this time. The committees believe that the
recommended changes to the weight-count standards will provide for
better uniformity of sizes between fruit packed in volume-filled
containers and fruit packed in tray-packed containers, will smooth the
transition from early-season to mid-season and late-season fruit for
marketers, and will more closely align fruit sizes between nectarines
and peaches.
The committees make recommendations regarding the revisions in
handling requirements after considering all available information,
including recommendations by various subcommittees, comments of persons
at subcommittee meetings, and comments received by committee staff.
Such subcommittees include the Tree Fruit Quality Subcommittee, the
Size Nomenclature Review Group, the Marketing Order Amendment Task
Force, and the Executive Committee.
At the meetings, the impact of and alternatives to these
recommendations are deliberated. These subcommittees, like the
committees themselves, frequently consist of individual producers and
handlers with many years of experience in the industry who are familiar
with industry practices and trends. Like all committee meetings,
subcommittee meetings are open to the public and comments are widely
solicited. In the case of the Tree Fruit Quality Subcommittee, many
growers and handlers who are affected by the issues discussed by the
subcommittee attend and actively participate in the public
deliberations, or call and/or write in their concerns and comments to
the staff for presentation at the meetings. In addition, minutes of all
subcommittee meetings are distributed to committee members and others
who have requested them, and are also available on the committees'
website, thereby increasing the availability of information within the
industry.
An interim final rule concerning this action was published in the
Federal Register on March 31, 2005. Copies of the rule were posted on
the committees' Web site and were also made available through the
Internet by USDA and the Office of the Federal Register. That rule
provided a 60-day comment period, which ended on May 31, 2005. One
comment was submitted on the rule.
First, the commenter noted that the Spring Ray nectarine variety
name should be changed to include the patented name, ``Burnectone.''
This rule removes the name ``Spring Ray'' from Table 1 of paragraph
(a)(1)(iv) in Sec. 916.356 and from the introductory text of paragraph
(a)(4) of Sec. 916.356, and replaces it with ``Burnectone (Spring
Ray).''
The commenter also noted that the 012-094 peach variety name should
be changed to include the patented name, ``Supeacheight.'' This rule
removes the name ``012-094'' in paragraph (a)(5) of Sec. 917.459, and
replaces it with ``Supeacheight (012-094).''
Each of the recommended handling requirement changes for the 2005
season is expected to benefit producers and handlers through increased
fruit sales, compared to the situation that would exist if the changes
were not adopted. Both large and small entities are expected to benefit
from the changes, and the costs of compliance are not expected to be
substantially different between large and small entities.
This rule does not impose any additional reporting and
recordkeeping requirements on either small or large handlers. 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.
USDA 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 CFR 1621 et seq.). Standards issued under the
Agricultural Marketing Act of 1946 are otherwise voluntary.
In addition, the committees' meetings are widely publicized
throughout the nectarine and peach industry and all interested parties
are encouraged to attend and participate in committee deliberations on
all issues. These meetings are held annually in the fall, winter and
spring. Like all committee meetings, the December 7, 2004, meetings
were public meetings, and all entities, large and small, were
encouraged to express views on these issues. These regulations were
also reviewed and thoroughly discussed at subcommittee meetings held on
August
[[Page 44249]]
26, September 13, November 9 and November 30, 2004. Finally, interested
persons were invited to submit information on the regulatory and
informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
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 changes, as published in the Federal
Register, (70 FR 16383, March 31, 2005) 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.
0
Accordingly, the interim final rule amending 7 CFR parts 916 and 917,
which was published at 70 FR 16383 on March 31, 2005, is adopted as a
final rule with the following changes:
0
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. 916.356 [Amended]
0
2. Section 916.356 is amended by:
0
A. Removing the words ``Spring Ray'' from column A and the entry ``L''
from column B and adding in alphabetical order the words ``Burnectone
(Spring Ray)'' in column A and an entry ``L'' in column B of Table 1 in
paragraph(a)(1)(iv);
0
B. Removing the words ``Spring Ray'' and adding the words ``Burnectone
(Spring Ray)'' in alphabetical order in the introductory text of
paragraph (a)(4).
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
Sec. 917.459 [Amended]
0
3. Section 917.459 is amended by removing the word ``012-094'' and
adding the words ``Supeacheight (012-094)'' in alphabetical order in
the introductory text of paragraph (a)(5).
* * * * *
Dated: July 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-15168 Filed 8-1-05; 8:45 am]