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.

Rules and Regulations Federal Register

39507

Vol. 65, No. 124

Tuesday, June 27, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV00–916–1 FIR]

Nectarines and Peaches Grown in

California; Revision of Handling

Requirements for Fresh Nectarines

and Peaches

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture is adopting, as a final rule,

with minor changes, the provisions of

an interim final rule that revised the

handling requirements for California

nectarines and peaches by modifying

the grade, size, maturity, and container

marking requirements for fresh

shipments of these fruits, beginning

with 2000 season shipments. This rule

also continues in effect the modification

of the requirements for placement of

Federal-State Inspection Service lot

stamps for the 2000 season only. 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 shipping fresh nectarines

and peaches meeting consumer needs in

the interest of producers, handlers, and

consumers of these fruits.

EFFECTIVE DATE: June 28, 2000.

FOR FURTHER INFORMATION CONTACT:

Terry Vawter, Marketing Specialist,

California Marketing Field Office,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, 2202 Monterey Street,

suite 102B, Fresno, California 93721;

telephone: (559) 487–5901, Fax: (559)

487–5906; or George Kelhart, Technical

Advisor, 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) 720–5698.

Small businesses may request

information on compliance with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone: (202) 720–2491; Fax: (202)

720–5698, 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

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 of Agriculture

(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.

Under the orders, lot stamping, grade,

size, maturity, 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

November 30, 1999, and unanimously

recommended that these handling

requirements be revised for the 2000

season, which began April 1. The

changes: (1) Revise the lot stamping

requirements for the 2000 season only;

(2) authorize shipments of ‘‘CA Utility’’

quality fruit to continue during the 2000

season; (3) eliminate the minimum letter

height of maturity marking requirements

for all containers; (4) provide a tolerance

for the ‘‘Peento’’ or ‘‘donut’’ types of

peaches for healed, non-serious,

blossom-end growth cracks; and (5)

revise varietal maturity, quality, and

size requirements to reflect recent

changes in growing conditions. These

changes continue in effect as published

in the interim final rule.

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 may

express their views at these meetings.

The Department reviews committee

recommendations and information, as

well as information from other sources,

and determines whether modification,

suspension, or termination of the rules

and regulations would tend to effectuate

the declared policy of the Act.

No official crop estimate was

available at the time of the committees’

meetings because the nectarine and

peach trees were dormant. The

committees recommended a crop

estimate at their meetings in early

spring. Preliminary estimates indicate

that the 2000 crop will be slightly larger

in size with characteristics similar to the

1999 crop which totaled 20,405,000

boxes of nectarines and 20,460,000

boxes of peaches. The 2000 crop is

estimated to be 22,000,000 boxes of

nectarines and 21,000,000 boxes of

peaches.

39508 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

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 all

exposed or outside containers of

nectarines and peaches, and at least 75

percent of the total containers on a

pallet, be stamped with the FederalState Inspection Service (inspection

service) lot stamp number after

inspection and prior to shipment to

show that the fruit has been inspected.

These requirements apply except for

containers that are loaded directly onto

railway cars, exempted, or mailed

directly to consumers in consumer

packages.

Lot stamp numbers are assigned to

each handler by the inspection service,

and are used to identify the handler and

the date on which the container was

packed. The lot stamp number is also

used by the inspection service to

identify and locate the corresponding

inspector’s working papers or notes.

Working papers are the documents each

inspector completes while performing

an inspection on a lot of nectarines or

peaches. Information contained in the

working papers supports the grade

levels certified by the inspector at the

time of inspection.

The lot stamp number has value for

the industries, as well. The committees

utilize the lot stamp numbers and date

codes to trace fruit in the container back

to the orchard where harvested. This

information is essential in providing

quick information for a crisis

management program instituted by the

industries. Without the lot stamp

information on each container, the

‘‘trace-back’’ effort, as it is called, would

be jeopardized.

Recently, several new containers have

been introduced for use by nectarine

and peach handlers. The boxes are

returnable plastic containers which

retailers send back to a central

clearinghouse after use. Use of these

boxes may represent substantial savings

to retailers for storage and disposal, as

well as for handlers who do not have to

pay for traditional containers. Fruit is

packed in the boxes by the handler,

delivered to the retailer, emptied, and

returned to the clearinghouse for

cleaning and redistribution. However,

because they were designed to be

reused, these boxes do not support

markings that are permanently affixed to

the container. All markings must be

printed on cards which slip into tabs on

the front or sides of the containers. The

cards are easily inserted and removed,

and further contribute to the efficient

use of the container.

The cards are a concern for the

inspection service and the industries,

however. Because of their unique

portability, there is some concern that

the cards on pallets of inspected

containers could easily be moved to

pallets of uninspected containers, thus

permitting a handler to avoid inspection

on a lot or lots of nectarines or peaches.

This would also jeopardize the use of

the lot stamp numbers for the

industries’ ‘‘trace-back’’ program.

To address this concern, the

committees have recommended that

pallets of inspected fruit be identified

with a USDA-approved pallet tag

containing the lot stamp number, in

addition to the lot stamp number

printed on the card on the container. In

this way, an audit trail is created,

confirming that the lot stamp number on

the containers on each pallet correspond

to the lot stamp number on the pallet

tag.

The inspection service and the

committees have presented their

concerns to the manufacturers of these

types of boxes. One manufacturer has

indicated a willingness to address the

problem by offering an area on the

principle display panel where the

container markings will adhere to the

box, which will meet the needs of the

industries, the inspection service, and

the manufacturer. However, the

manufacturer expressed the belief that

this change may not be available in time

for the 2000 season. For that reason, the

committees further recommended that

the proposed modification of the lot

stamping requirements be put into place

for the 2000 season only.

This rule continues in effect revisions

to §§ 916.115 and 917.150 which require

the lot stamp number to be adhered to

a USDA-approved pallet tag, in addition

to the requirement that the number be

applied to cards on all exposed or

outside containers, and not less than 75

percent of the total containers on a

pallet.

This rule also continues in effect a

conforming change to § 917.150 that

changed the word ‘‘but’’ to ‘‘and,’’

making the language in this section

similar to that in § 916.115.

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, § 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 there

was a slightly tighter requirement for

scarring and a more liberal allowance

for misshapen fruit. Prior to the 1996

season, § 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 a

revision of § 916.350, § 916.356,

§ 917.442, and § 917.459 to permit

shipments of nectarines and peaches

meeting ‘‘CA Utility’’ quality

requirements during the 2000 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, and also during the 1998 and

1999 seasons with slight modifications.

Studies conducted by the NAC and

PCC indicate 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 only represented 1.1

percent of all nectarine shipments, or

approximately 210,000 boxes.

Shipments of ‘‘CA Utility’’ peaches

represented 1.9 percent of all peach

shipments, or 366,000 boxes. By 1998

and 1999, shipments of ‘‘CA Utility’’

nectarines represented 4.5 percent and

4.0 percent, respectively, of all nectarine

shipments; or approximately 760,000

boxes and 819,600 boxes, respectively.

In 1998 and 1999, shipments of ‘‘CA

Utility’’ peaches represented 3.3 percent

and 3.4 percent, respectively, of all

peach shipments; or approximately

602,000 boxes and 689,800 boxes,

respectively.

For these reasons, the committees

unanimously recommended that

shipments of ‘‘CA Utility’’ quality

nectarines and peaches be permitted for

the 2000 season with a continuing inhouse statistical review. This rule

continues in effect a revision to

paragraphs (d) of §§ 916.350 and

917.442, and paragraphs (a)(1) of

§§ 916.356 and 917.459 to permit

shipments of nectarines and peaches

meeting ‘‘CA Utility’’ quality

requirements during the 2000 season, on

the same basis as last season.

In addition, this rule continues in

effect a revision of paragraph (a)(1) of

§ 917.459 to provide a 10 percent

tolerance for healed, non-serious,

blossom-end growth cracks for the

‘‘Peento’’ or ‘‘donut’’ varieties of

peaches, such as the ‘‘Saturn’’ and

‘‘Jupiter’’ varieties.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39509

These varieties of peaches

characteristically suffer blossom-end

(calyx basin) cracks during

development. These cracks heal as the

growth continues and as the fruit gains

size. Generally, the cracks are

completely healed by harvest. Peaches

with unhealed or serious blossom-end

growth cracks at the time of inspection

would not be included in U.S. No. 1 or

‘‘CA Utility’’ packages. Such a

relaxation will permit handlers of the

Peento type of peaches to utilize more

of these fruit in boxes of U.S. No. 1

peaches, benefitting both handlers and

growers of these varieties.

The PCC unanimously recommended

this additional tolerance of 10 percent

for healed, non-serious, blossom-end

growth cracks for the Peento type of

peaches, beginning in the 2000 season.

Container Marking Requirements

Sections 916.52 and 917.41 of the

nectarine and peach orders,

respectively, authorize container

marking requirements. Requirements for

container markings are specified in

§§ 916.350 and 917.442 of the orders’

rules and regulations. Container

marking requirements include marking

of the commodity and variety (e.g., Fay

Elberta peaches), the size of the fruit in

the box (e.g., 88 size), the net weight,

and the maturity (either U.S. Mature

(US MAT) or California Well Matured

(CA WELL MAT)), on each container of

nectarines or peaches.

As innovative containers enter the

marketplace, especially those preferred

by retailers, the configuration of display

panels changes. This is true for both

retail and consumer-size containers. As

a result, handlers are forced to make

adjustments in their container markings

to accommodate the differences in

display panels. Some containers, such

as those intended for purchase by

individual consumers, are smaller and

have less display-panel surface area,

and meeting all the minimum size

labeling requirements is difficult. Some

handlers requested a relaxation in the

container labeling requirements with

regard to the fruit maturity marking, and

the committees agreed that a

modification would be appropriate. This

relaxation eliminates the minimum

lettering height in favor of a requirement

that fruit maturity markings be clear and

legible. Therefore, the revision to

§§ 916.350 and 917.442, paragraphs

(a)(3) continues in effect.

Maturity Requirements

Both orders provide (in §§ 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, ‘‘wellmatured’’ 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

§§ 916.356 and 917.459, for nectarines

and peaches, respectively.

The requirements in the 2000

handling regulation are the same as

those that appeared in the 1999

handling regulation with a few

exceptions. Those exceptions are

explained in this rule.

Nectarines: Requirements for ‘‘wellmatured’’ nectarines are specified in

§ 916.356 of the order’s rules and

regulations. While SPI made no

recommendation with regard to changes

to the NAC regarding maturity guides,

the committee recommended removal of

several varieties of nectarines from the

maturity guides.

This rule continues in effect a

revision of TABLE 1 of paragraph

(a)(1)(iv) of § 916.356 by removing 12

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 12 of

the nectarine varieties currently listed

in the maturity guide have not been in

production since the 1997 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 include the

Apache, Arm King, Bob Grand, Flavor

Grand, Flavortop I, Maybelle, Mike

Grand, Pacific Star, Son Red, Summer

Star, Sunfre, and Tasty Gold nectarine

varieties.

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 a

revision of TABLE 1 of paragraph

(a)(1)(iv) of § 917.459 to add maturity

guides for 2 peach varieties and revise

the maturity guide for 1 variety.

Specifically, SPI recommended adding

the maturity guides for the Earli Rich

peach variety to be regulated at the H

maturity guide, and the Late Ito Red

peach variety to be regulated at the L

maturity guide. SPI also recommended

a modification to the current maturity

guide for the Autumn Rose peach

variety, changing the maturity guide

from the I to the H maturity guide.

This rule also continues in effect a

correction of the reference to the

Ambercrest peach variety listed in

TABLE 1 of paragraph (a)(1)(iv). The

correct name of the variety is ‘‘Amber

Crest.’’

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.

TABLE 1 of paragraph (a)(1)(iv) of

§ 917.459 was also revised to remove 15

peach varieties which are no longer in

production, and this rule continues in

effect that revision. The PCC routinely

reviews the status of peach varieties

listed in these maturity guides. The

most-recent review revealed that 15 of

the peach varieties currently listed in

the maturity guide have not been in

production since the 1997 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 include the

August Sun, Autumn Crest, Belmont

(Fairmont), Berenda Sun, Fayette,

Golden Crest, Golden Lady, June Sun,

Mary Anne, Parade, Pat’s Pride, Prima

Lady, Red Cal, Scarlet Lady, and

Springold peach varieties.

Size Requirements

Both orders provide (in §§ 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. In

addition, increased size results in an

increased number of packed boxes of

nectarines or peaches per acre.

Acceptable size fruit also provides

greater consumer satisfaction and more

repeat purchases; and, therefore,

increases returns to producers and

handlers. Varieties recommended for

specific size regulation have been

reviewed and such recommendations

are based on the specific characteristics

39510 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

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.

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 a

revision of § 916.356 to establish

variety-specific minimum size

requirements for 14 nectarine varieties

that were produced in commerciallysignificant quantities of more than

10,000 packages for the first time during

the 1999 season. This rule also

continues in effect a modification of the

variety-specific minimum size

requirements for 6 varieties of

nectarines whose shipments fell below

5,000 packages during the 1999 season.

For example, one of the varieties

recommended for addition to the

variety-specific minimum size

requirements is the Diamond Jewel

nectarine variety. Studies of the size

ranges attained by the Diamond Jewel

variety revealed all but one box of that

variety met minimum sizes 50, 60, 70,

and 80 during the 1999 season. The one

box reportedly met a minimum size 88.

While the size distribution peaked on

the size 70, 100 percent of the fruit sized

at a minimum of size 88.

A review of other varieties with the

same harvesting period indicated that

Diamond Jewel was also comparable to

those varieties in its size ranges for that

time period. Discussions with handlers

known to handle the variety confirmed

this information regarding minimum

size and harvesting period, as well.

Thus, the recommendation to place the

Diamond Jewel nectarine variety in the

variety-specific size regulation at a size

88 is 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 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 such

comments are received by the staff.

For reasons similar to those discussed

in the preceding paragraph, the revision

of the introductory text of paragraph

(a)(4) of § 916.356 continues in effect to

include the Diamond Jewel, Kay Sweet,

and White Sun nectarine varieties; and

the revision of the introductory text of

paragraph (a)(6) in § 916.356 continues

in effect to include the Arctic Blaze,

Arctic Gold, Arctic Jay, Cole Red, Fire

Sweet, Honey Blaze, Kay Bright, Prima

Diamond XVIII, Regal Pearl, Ruby

Sweet, and White September nectarine

varieties.

This rule continues in effect the

revision of the introductory text of

paragraph (a)(4) of § 916.356 to remove

2 nectarine varieties from the varietyspecific minimum size requirements

specified in the section because less

than 5,000 packages of each of these

varieties were produced during the 1999

season. Thus, the revision of the

introductory text of paragraph (a)(4)

continues in effect the removal of the

Early May and Prima Diamond VI

nectarine varieties.

This rule also continues in effect the

revision of the introductory text of

paragraph (a)(6) of § 916.356 to remove

4 nectarine varieties from the varietyspecific minimum size requirements

specified in the section because less

than 5,000 packages of each of these

varieties were produced during the 1999

season. Thus, the revision of the

introductory text of paragraph (a)(6)

continues in effect the removal of the

Flavortop, Flavortop I, How Red

(Sunectnineteen) and the 491–48

nectarine varieties.

The Grand Sun nectarine variety had

1999 shipments of 2,939 packages, but

was not recommended for removal from

variety-specific size requirements

because the variety is expected to

increase in commercial significance

during the 2000 season. Inclement

weather, including the cool spring and

frost damage, is considered to be a factor

in the decreased production during the

1999 season. However, in the interim

final rule, this variety was inadvertently

omitted from paragraph (a)(3) of

§ 916.356. This rule corrects that

omission. This rule also corrects the

name of the variety from ‘‘Gran Sun’’ to

‘‘Grand Sun.’’

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 § 916.356.

The NAC recommended these

changes in the minimum size

requirements based on a continuing

review of the sizing and maturity

relationships for these nectarine

varieties, and consumer acceptance

levels for various sizes of fruit. This rule

is designed to establish minimum size

requirements for fresh nectarines

consistent with expected crop and

market conditions.

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

§ 917.459 to establish variety-specific

minimum size requirements for 16

peach varieties that were produced in

commercially-significant quantities of

more than 10,000 packages for the first

time during the 1999 season. This rule

also continues in effect the modification

of the variety-specific minimum size

requirements for 4 varieties of peaches

whose shipments fell below 5,000

packages during the 1999 season.

One of the varieties recommended for

addition to the variety-specific size

requirements is the Brittany Lane

variety. Studies of the size ranges

attained by the Brittany Lane variety

revealed that while the size distribution

peaked on size 50, all of the boxes of

that variety met at least the size 80

requirement.

A review of other varieties of the same

harvesting period indicated that

Brittany Lane was also comparable to

those varieties in its size ranges.

Discussions with handlers known to

handle the variety confirmed this

information regarding minimum size

and harvesting period, as well. Thus,

the recommendation to place the

Brittany Lane variety in the varietyspecific size regulation at a size 80 is

appropriate.

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.

Producer and handler comments are

also considered at both PCC and

subcommittee meetings when such

comments are received by staff of CTFA.

In § 917.459 of the order’s rules and

regulations, the revision of the

introductory text of paragraph (a)(5)

continues in effect to include the

Brittany Lane, Snow Prince, Zee

Diamond, 012–094, and 172LE White

Peach (Crimson Snow/Sunny Snow)

peach varieties; and the revision of the

introductory text of paragraph (a)(6)

continues in effect to include the

Country Sweet, Earli Rich, Full Moon,

Late September Snow, N117, Queen

Lady, Red Sun, Sierra Gem, Snow Blaze,

Sweet Kay, and Sweet September peach

varieties.

This rule also continues in effect the

revision of § 917.459 to remove 4 peach

varieties from the variety-specific size

requirements specified in that section,

because less than 5,000 packages of this

variety were produced during the 1999

season. In § 917.459, the revision of the

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39511

introductory text of paragraph (a)(5)

continues in effect to remove the Golden

Crest (Supechthree) peach variety and

the revision of the introductory text of

paragraph (a)(6) of § 917.459 continues

in effect to remove the Snow Diamond,

Sparkle, and 1–01–505 peach varieties.

The Super Rich peach variety had

1999 shipments of 3,941 packages, but

was not recommended for removal from

variety-specific size requirements

because the variety is expected to

increase in commercial significance

during the 2000 season. Inclement

weather, including the cool spring and

frost damage, is considered to be a factor

in the decreased production during the

1999 season.

In paragraph (a) (6) of § 917.459, this

action corrects the name of the peach

variety ‘‘Prima Gattie’’ to ‘‘Prima Gattie

8’’, and the variety ‘‘Yukon King’’ to

‘‘Autumn Snow’’ These corrections are

based on the comment received.

Peach varieties removed from the

variety-specific list become subject to

the non-listed variety size requirements

specified in paragraphs (b) and (c) of

§ 917.459.

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 continues in effect the

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 continue in effect the revision to the

handling requirements for California

nectarines and peaches, as specified.

The Department has determined that

this rule will have a beneficial impact

on producers, handlers, and consumers

of California nectarines and peaches.

This rule continues in effect 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 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, have been defined as

those whose annual receipts are less

than $5,000,000. Small agricultural

producers have been defined by the

Small Business Administration [13 CFR

121.201] as those having annual receipts

of less than $500,000. A majority of

these handlers and producers may be

classified as small entities.

The committees’ staff have estimated

that there are less than 20 handlers in

the industry who could be defined as

other than small entities. If the average

handler price received were $9.00 per

box or box equivalent of nectarines or

peaches, a handler would have to ship

at least 555,000 boxes to have annual

receipts of $5,000,000. Small handlers

represent approximately 94 percent of

the handlers within the industry. If the

average producer price received were

$6.00 per box or box equivalent for

nectarines and $5.65 per box or box

equivalent for peaches, producers

would have to produce approximately

84,000 boxes or box equivalents of

nectarines and approximately 89,000

boxes or box equivalents of peaches to

have annual receipts of $500,000.

Therefore, small producer entities are

estimated to represent approximately 78

percent of the producers within the

industry. For those reasons, a majority

of the handler and producers may be

classified as small entities, excluding

receipts from other sources.

Under §§ 916.52 and 917.41 of the

orders, lot stamping, 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 the revision to the handling

requirements to: (1) Revise the lot

stamping requirements for the 2000

season only; (2) authorize shipments of

‘‘CA Utility’’ quality fruit to continue

during the 2000 season; (3) eliminate

the minimum size of maturity marking

requirements for all containers; (4)

provide a tolerance for the ‘‘Peento’’ or

‘‘donut’’ types of peaches for healed,

non-serious, blossom-end growth

cracks; and (5) revise varietal maturity,

quality, and size requirements to reflect

recent changes in growing conditions.

In §§ 916.115 and 917.150 of the

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.

New, returnable containers, which do

not support permanent markings, utilize

printed cards which contain the lot

stamp number, date codes, and other

container marking requirements. The

printed cards are easily inserted into

tabs on the front or sides of the

containers. The ease of portability of

these cards creates problems for both

the inspection service and the industries

in tracking the containers. Cards on a

pallet of inspected fruit could be easily

moved to a pallet of uninspected fruit,

thus permitting a handler to circumvent

inspection requirements. The inspection

service and the committees have

recommended that each pallet of

inspected nectarines and peaches be

marked with a pallet tag containing the

lot stamp number, in addition to the lot

stamp number provided on the card on

the containers.

The committees believe that this

recommendation should be limited to

the 2000 season only, since at least one

manufacturer anticipates the availability

of an area on the principle display panel

where the container markings will

adhere to the box, which will meet the

needs of the industries, inspection

service, and the manufacturer. However,

the manufacturer expressed the belief

that this change may not be available in

time for the 2000 season. For that

reason, the committees further

recommended that the proposed

modification of the lot stamping

requirements be put into place for the

2000 season only.

In 1996, §§ 916.350 and 917.442 were

revised to permit shipments of lowerquality nectarines and peaches, known

as ‘‘CA Utility,’’ as an experiment for

the 1996 season only. Such

authorization was continued during the

1997, 1998, and 1999 seasons. This rule

continues in effect the authority to

permit the continued use of ‘‘CA

Utility’’ quality fruit for the 2000 season

with a continued in-house statistical

review to be conducted by the NAC and

PCC. During the 1996 season, the

Department authorized the shipment of

nectarines and peaches which were of a

39512 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

lower quality than the minimum

permitted for previous seasons. During

1996, there were 210,443 boxes of

nectarines and 365,761 boxes of peaches

packed as ‘‘CA Utility,’’ or 1.1 percent

and 1.9 percent of fresh shipments,

respectively. During 1997, there were

230,275 boxes of nectarines and 216,562

boxes of peaches packed as ‘‘CA

Utility,’’ or 1.1 percent and 1.0 percent

of fresh shipments, respectively. In

1998, there were 760,000 boxes of

nectarines and 602,000 boxes of peaches

packed as ‘‘CA Utility,’’ or 4.5 percent

and 3.3 percent of fresh shipments,

respectively. In 1999, there were

819,600 boxes of nectarines and 689,800

boxes of peaches packed as ‘‘CA

Utility,’’ or 4.0 percent and 3.4 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.

Sections 916.356 and 917.442

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 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.

In § 916.356 of the order’s rules and

regulations for nectarines and § 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

the adjustments to the minimum sizes

authorized for various varieties of

nectarines and peaches for the 2000

season. Minimum size regulations are

put in place to allow fruit to stay on the

tree for a greater length of time. This

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. Such 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.

The recommendations with regard to

maturity markings on containers,

continuation of authority to ship

nectarines and peaches which meet the

‘‘CA Utility’’ quality requirements, and

an increased tolerance for Peento type of

peaches, are relaxations which continue

in effect. These regulations are intended

to provide increased flexibility for

handlers of nectarines and peaches.

The committees made

recommendations regarding these

revisions in handling requirements after

considering all available information,

including comments of persons at three

subcommittee meetings. The Grade and

Size Subcommittee met on November 9,

1999, the Management Services

Committee met on November 17, 1999,

and the Returnable Plastic Container

Task Force met on November 23, 1999.

At the meetings, the impact of and

alternatives to these recommendations

were discussed.

At the Grade and Size Subcommittee,

the members discussed

recommendations of SPI with regard to

maturity guides, and recommendations

of staff with regard varietal sizing and

grades. SPI recommended maturity

guides for two varieties of peaches and

also recommended a change in maturity

guides for an established variety. SPI

made no recommendations to add or

change any maturity guides for

nectarines. The staff made

recommendations to remove varieties of

nectarines and peaches from the

maturity listings which are no longer in

commercial production.

The staff also made recommendations

to add nectarine and peach varieties to

the variety-specific size requirements,

based upon internal studies of the sizing

characteristics of those nectarines and

peaches. These nectarine and peach

varieties were packed in commerciallysignificant quantities of 10,000 packages

or more during the 1999 season. Also,

the staff made recommendations to

remove nectarine and peach varieties

from the variety-specific sizing

requirements, based upon information

indicating that less than 5,000 packages

of those varieties were packed in the

1999 season and that the shipments of

those varieties are expected to continue

to decline in commercial significance.

The committees routinely review their

regulations and add varieties of which

more than 10,000 packages are packed

in a season; or remove varieties of

which less than 5,000 packages are

packed in a season. The alternative to

these requirements would be for the

more popular varieties to be subject to

the less-precise general sizing

regulations. This alternative was

rejected since it would ultimately

increase the amount of less-acceptable

fruit being marketed to consumers. Such

a result would be contrary to the longterm interests of producers, handlers,

and consumers.

At the Grade and Size Subcommittee

meeting, a handler recommended

eliminating the required minimum letter

height for maturity markings for all

types of containers. The handler noted

that some boxes preferred by retailers

have limited amounts of space on the

display panels, especially consumer

boxes. He suggested that the lettering

height minimum for the maturity

markings be eliminated in favor of clear

and legible markings. Any alternatives,

he noted, would fall short of the need

to provide handlers the necessary

maturity marking flexibility. He added

that with all the required markings for

variety, commodity, etc., very little

room is left on the display panel and

markings may nearly overlap. His

recommendation and those of SPI and

the staff were approved unanimously.

At the Returnable Plastic Container

Task Force meeting, the participants

discussed the most expedient method to

ensure that lot stamp numbers and date

codes could be affixed to containers of

nectarines and peaches to allow such

containers to be adequately tracked,

which would meet the needs of the

inspection service and the industries.

The members also met with a

manufacturer of one of the returnable

boxes, who expressed a willingness to

cooperate with the industries in finding

a solution to the problem of the highlyportable cards on the containers.

Alternatives offered included leaving

container marking requirements

unchanged, eliminating lot stamp

numbers as a required marking, and

permitting shipments of nectarines and

peaches in these containers without

restrictions on the cards. By leaving

container marking requirements

unchanged, handlers would be

precluded from providing nectarines

and peaches in containers advocated by

receiving retailers. Eliminating lot

stamp numbers as a required marking is

unacceptable to both the inspection

service and the industry. Allowing

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39513

returnable, plastic containers to be

shipped with the highly portable cards

is also unacceptable since the

portability of the cards could enable a

handler to evade inspection on a lot or

lots of nectarines or peaches by moving

the cards to uninspected containers, and

could jeopardize the industries’ ‘‘trace

back’’ program. All of these alternatives

were, therefore, rejected.

At the Management Services

Committee meeting, the members

reviewed all subcommittee

recommendations available to them.

The members of the Management

Services Committee include the

chairpersons and vice-chairpersons of

the committees, who generally have

many years experience working in the

industries. They, too, discussed

recommendations of subcommittees and

were free to make alternative

recommendations or revise

recommendations to the committees, as

they reviewed such recommendations.

Like committee meetings,

subcommittee meetings are open to the

public and comments are widely

solicited.

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. In addition, as noted in

the initial regulatory flexibility analysis,

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 last week of November or

first week of December. Like all

committee meetings, the November 30,

1999, 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.

An interim final rule concerning this

action was published in Federal

Register on March 22, 2000 (65 FR

15205). Copies of the rule were mailed

to all committee members and handlers

by the committee staff on March 22,

2000. Finally, the rule was made

available through the Internet by the

Office of the Federal Register. A 60-day

comment period ending May 22, 2000,

was provided to allow interested

persons to respond to the proposal. One

comment was received during the

comment period in response to the

proposal.

The commenter submitted several

clarifications to the interim final rule.

One clarification dealt with the

inadvertent omission of the ‘‘Grand

Sun’’ nectarine variety from the variety

specific size designations in paragraph

(a)(3) of § 916.356. The clarification also

noted that the interim final rule listed

the variety as ‘‘Gran Sun.’’ As noted

earlier, these corrections relative to the

Grand Sun nectarine variety have been

made.

The commenter also requested name

corrections for two peach varieties.

According to the commenter, the name

‘‘Prima Gattie’’ should be corrected to

read ‘‘Prima Gattie 8,’’ and the name

‘‘Yukon King’’ should be corrected to

read ‘‘Autumn Snow.’’

Accordingly, appropriate changes are

made based upon the comment

received.

A small business guide on complying

with fruit, vegetable, and specialty crop

marketing agreements and orders may

be viewed at the following website:

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

material presented, the information and

recommendations submitted by the

committees, and other information, it is

found that finalizing the interim final

rule, with appropriate changes, as

published in the Federal Register (65

FR 15205, March 22, 2000) will tend to

effectuate the declared policy of the Act.

It is further found that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register (5

U.S.C. 553) because: (1) Handlers are

already shipping nectarines and peaches

from the 2000 crop; (2) handlers are

already aware of this rule, which was

unanimously recommended at a public

meeting; and (3) a 60-day comment

period was provided for in the interim

final rule.

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 65 FR 15205 on

March 22, 2000, 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

§ 916.356 [Amended]

2. Section 916.356, paragraph (a)(3) is

amended by adding the words ‘‘Grand

Sun’’ between the words ‘‘Early

Diamond’’ and ‘‘Johnny’s Delight.’’

PART 917—FRESH PEARS AND

PEACHES GROWN IN CALIFORNIA

§ 917.459 [Amended]

3. Section 917.459, paragraph (a)(6) is

amended by revising the words ‘‘Prima

Gattie’’ to read ‘‘Prima Gattie 8,’’

removing the words ‘‘Yukon King,’’ and

adding the words ‘‘Autumn Snow’’

between the words ‘‘Autumn Rose’’ and

‘‘Cal Red.’’

Dated: June 21, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–16151 Filed 6–26–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112F; A.G. Order No. 2309–2000]

RIN 1125–AA13

Professional Conduct for

Practitioners—Rules and Procedures

AGENCY: Executive Office for

Immigration Review and Immigration

and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule amends the

rules and procedures concerning

professional conduct for attorneys and