55090 Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / Rules and Regulations 

lybica, Eremnus atratus, Eremnus 

cerealis, Eremnus setulosus, 

Eutetranychus orientalis, Helicoverpa 

armigera, Icerya seychellarum, 

Macchiademus diplopterus, Oxycarenus 

hyalinipennis, Pachnoda sinuata, 

Phlyctinus callosus, Scirtothrips 

aurantii, Scirtothrips dorsalis, 

Spodoptera littoralis, and 

Tanyrhynchus carinatus in accordance 

with part 305 of this chapter. 

(c) Each shipment of grapes must be 

accompanied by a phytosanitary 

certificate of inspection issued by the 

national plant protection organization of 

Namibia bearing the following 

additional declaration: ‘‘The grapes in 

this shipment have been inspected and 

found free of Maconellicoccus hirsutus, 

Nipaecoccus vastator, Rastrococcus 

iceryoides, Cochlicella ventricosa, and 

Theba pisana.’’

(d) The grapes may be imported in 

commercial shipments only. 

(Approved by the Office of Management and 

Budget under control number 0579–0300) 

Done in Washington, DC, this 18th day of 

September 2006. 

W. Ron DeHaven, 

Administrator, Animal and Plant Health 

Inspection Service. 

[FR Doc. 06–7891 Filed 9–20–06; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Docket No. FV06–916/917–1 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 a change, 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 2006 

season shipments. This rule also 

continues in effect the authorization for 

continued shipments of ‘‘CA Utility’’

quality nectarines and peaches, the 

establishment of weight-count standards 

for Peento type nectarines in volumefilled containers, and the elimination of 

the varietal container marking 

requirements. 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. 

DATES: Effective Date: October 23, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Laurel May, Marketing Specialist, or 

Kurt Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 2202 Monterey Street, 

Suite 102B, Fresno, California, 93721; 

Telephone (559) 487–5901, Fax: (559) 

487–5906, or e-mail: 

Laurel.May@usda.gov or 

Kurt.Kimmel@usda.gov. 

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 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. 

This rule continues in effect: (1) 

Revisions to the nectarine and peach 

grade, size, maturity, and pack 

requirements to better reflect current 

industry operating and marketing 

practices; (2) authorization for 

continued shipments of ‘‘CA Utility’’

quality nectarines and peaches during 

the 2006 and subsequent seasons to 

meet buyer needs; (3) establishment of 

weight-count standards for Peento type 

nectarines packed in volume-filled 

containers to assure pack uniformity; 

and (4) elimination of the varietal 

container marking requirements for 

nectarines and peaches to provide 

handlers more marketing flexibility. 

Sections 916.52 and 917.41 of the 

orders provide authority for regulating 

the handling of fresh California 

nectarines and peaches. The regulations 

include grade, size, maturity, quality, 

pack, and container marking 

requirements. Such regulations 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, 

meet prior to and during each season to 

review the regulations. Committee 

meetings are open to the public and 

interested persons are encouraged to 

express their views at these meetings. 

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. 

The committees held such meetings 

on February 3, 2006, and unanimously 

recommended that the handling 

requirements be revised for the 2006 

season, which was expected to begin at 

the end of March. No official crop 

estimates were available at the time of 

the committees’ February meetings 

because the nectarine and peach trees 

were dormant. The committees 

subsequently met on April 27, 2006, and 

recommended 2006 crop estimates of 

17,824,000 containers of nectarines and 

20,242,000 containers of peaches. The 

2006 nectarine crop is expected to be 

slightly smaller than the 2005 crop, 

which totaled approximately 18,618,000 

containers. The 2006 peach crop is 


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expected to be slightly larger than the 

2005 crop of approximately 20,177,000 

containers. 

Maturity Requirements 

Sections 916.52 and 917.41 of the 

orders authorize the establishment of 

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 

§§ 916.356 and 917.459, for nectarines 

and peaches, respectively. 

The requirements in the 2006 

handling regulations are the same as 

those that appeared in the 2005 

handling regulations 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. This rule continues in effect 

the revision of Table 1 of paragraph 

(a)(1)(iv) of § 916.356 to add maturity 

guides for seven varieties of nectarines. 

Specifically, SPI recommended adding 

maturity guides for the Ruby Fire 

variety to be regulated at the G maturity 

guide; for the Burnectten (Spring Flare

19) variety to be regulated at the H 

maturity guide, for the Burnecttwelve 

(Sweet Flare 21) variety to be regulated 

at the I maturity guide, for the 

Burnectseven (Summer Flare 28) and 

Zee Fire varieties to be regulated at the 

J maturity guide, and for the Prima 

Diamond XIX and Summer Jewel 

varieties to be regulated at the L 

maturity guide. 

Peaches: Requirements for ‘‘wellmatured’’ peaches are specified in 

§ 917.459 of the order’s rules and 

regulations. This rule continues in effect 

the revision of Table 1 of paragraph 

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

guides for seven peach varieties. 

Specifically, SPI recommended adding 

maturity guides for the Flavor Joy 

variety to be regulated at the H maturity 

guide; the King Sweet, Lady Lou, and 

Sugar Time (214LC68) varieties to be 

regulated at the I maturity guide; the 

August Dream variety to be regulated at 

the J maturity guide; and the 

Burpeachfive (July Flame) and 

Burpeachsix (June Flame) varieties to 

be regulated at the L maturity guide. 

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. 

Size Requirements 

Both orders provide authority (in 

§§ 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. Increased fruit size results in 

increased numbers of packed containers 

of nectarines and peaches per acre, 

which also benefits producers and 

handlers. 

Recommendations for size regulations 

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 

revisions to § 916.356 that 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 2005 season. This rule 

also continues in effect to remove the 

variety-specific minimum size 

requirements for seven varieties of 

nectarines whose shipments fell below 

5,000 containers during the 2005 

season. 

For example, one of the varieties 

recommended for addition to the 

variety-specific minimum size 

requirements is the Burnectten (Spring 

Flare 19) variety of nectarines, 

recommended for regulation at a 

minimum size 96. Studies of the size 

ranges attained by the Burnectten 

(Spring Flare 19) variety revealed that 

100 percent of the containers met the 

minimum size of 96 during the 2004 

and 2005 seasons. Sizes ranged from 

size 40 to size 96, with 0.2 percent of 

the fruit in the 40 sizes, 4.9 percent of 

the packages in the 50 sizes, 27.0 

percent in the 60 sizes, 35.8 percent in 

the 70 sizes, 24.4 percent in the 80 sizes, 

and 7.7 percent in size 96 for the 2005 

season. 

A review of other varieties with the 

same harvesting period indicated that 

the Burnectten (Spring Flare 19) 

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 

Burnectten (Spring Flare 19) variety in 

the variety-specific minimum size 

regulation at a minimum size 96 is 

appropriate. This recommendation 

results from size studies conducted over 

a two-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 

introductory text of paragraph(a)(3) of 

§ 916.356 continues in effect to be 

revised to include the Burnectten 

(Spring Flare 19) variety; the 

introductory text of paragraph (a)(4) of 

§ 916.356 continues in effect to be 

revised to include the Gee Sweet 

variety; and the introductory text of 

paragraph (a)(6) of § 916.356 continues 

in effect to be revised to include the 

Arctic Belle, August Sweet, Autumn 

Blaze, Giant Pearl, Prima Diamond X, 

Prince Jim 3, and Summer Jewel 

nectarine varieties. 

This rule also continues in effect the 

revisions to the introductory text of 

paragraphs (a)(3), (a)(4), and (a)(6) of 

§ 916.356 that remove seven 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 2005 season. 

Specifically, the introductory text of 

paragraph (a)(3) of § 916.356 continues 

in effect to be revised to remove the 

Early Diamond nectarine variety; the 


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introductory text of paragraph (a)(4) of 

§ 916.356 continues in effect to be 

revised to remove the Arctic Rose, June 

Glo, May Diamond and Red Delight 

nectarine varieties; and the introductory 

text of paragraph (a)(6) of § 916.356 

continues in effect to be revised to 

remove the Bright Sweet and Emelia 

nectarine varieties. 

Nectarine varieties removed from the 

nectarine variety-specific minimum size 

requirements become subject to the nonlisted variety size requirements 

specified in paragraphs (a)(7), (a)(8), and 

(a)(9) of § 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 revisions to 

§ 917.459 that establish variety-specific 

minimum size requirements for eleven 

peach varieties that were produced in 

commercially significant quantities of 

more than 10,000 containers for the first 

time during the 2005 season. This rule 

also continues in effect to remove the 

variety-specific minimum size 

requirements for seven varieties of 

peaches whose shipments fell below 

5,000 containers during the 2005 

season. 

For example, one of the varieties 

recommended for addition to the 

variety-specific minimum size 

requirements is the Island Prince variety 

of peaches, which was recommended 

for regulation at a minimum size 88. 

Studies of the size ranges attained by 

the Island Prince variety revealed that 

100 percent of the containers met the 

minimum size of 88 during the 2004 

and 2005 seasons. The sizes ranged from 

size 30 to size 88, with 3.8 percent of 

the containers meeting the size 30, 4.0 

percent meeting the size 40, 42.1 

percent meeting the size 50, 28.1 

percent meeting the size 60, 11.8 

percent meeting the size 70, 9.9 percent 

meeting the size 80, and 0.3 percent 

meeting the size 88 in the 2005 season. 

A review of other varieties with the 

same harvesting period indicated that 

the Island Prince 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 Island 

Prince variety in the variety-specific 

minimum size regulation at a minimum 

size 88 is appropriate. 

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 

introductory text of paragraph (a)(3) of 

§ 917.459 continues in effect to be 

revised to include the Island Prince and 

Snow Peak peach varieties; the 

introductory text of § (a)(5) of § 917.459 

continues in effect to be revised to 

include the Bright Princess, 

Burpeachnineteen (Spring Flame 22), 

Honey Sweet, Sierra Snow, and Sweet 

Crest peach varieties; and the 

introductory text of paragraph (a)(6) of 

§ 917.459 continues in effect to be 

revised to include the Glacier White, 

Jasper Treasure, Spring Candy, and 

Valley Sweet peach varieties. 

This rule also continues in effect the 

revision to the introductory text of 

paragraph (a)(6) of § 917.459 to remove 

the Autumn Ruby, Cherry Red, Early 

O’Henry, Gypsy Red, Pretty Lady, 

Supechfour (Amber Crest), and 

244LE379 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 2005 season. 

Peach varieties removed from the 

peach variety-specific minimum size 

requirements become subject to the nonlisted variety size requirements 

specified in paragraphs (b) and (c) of 

§ 917.459. 

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 is designed to establish 

minimum size requirements for fresh 

nectarines and peaches consistent with 

expected crop and market conditions. 

Grade and Quality Requirements 

Sections 916.52 and 917.41 of the 

orders also 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 standard that included 

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 considered ‘‘serious damage.’’

Since 1996, shipments of nectarines 

and peaches meeting ‘‘CA Utility’’

quality requirements have been 

permitted each season. ‘‘CA Utility’’

fruit is lower in quality than that 

meeting the modified U.S. No. 1 grade 

requirements. Nevertheless, the fruit is 

acceptable in many markets. Use of the 

‘‘CA Utility’’ quality option has allowed 

handlers the opportunity to remove 

marginal fruit from the U.S. No. 1 

containers and pack it in ‘‘CA Utility’’

containers instead, which results in 

better quality U.S. No. 1 packs without 

sacrificing fruit. 

The committees have recommended 

continuation of the authorization to ship 

‘‘CA Utility’’ quality fruit each year 

since 1996, and did so again at their 

meetings on February 3, 2006, for the 

2006 and subsequent seasons. This rule 

continues in effect to revise paragraph 

(d) of § 916.350 and 917.442, and 

paragraph (a)(1) of § 916.356 and 

917.459 to permit shipments of 

nectarines and peaches meeting ‘‘CA 

Utility’’ quality requirements during the 

2006 and subsequent seasons. 

Weight-Count Standards 

Under the provisions of § 916.52 of 

the order, NAC is authorized to 

establish weight-count standards for 

packed containers of nectarines. These 

standards define a maximum number of 

nectarines in a 16-pound sample when 

such fruit, which may be packed in traypacked containers, is converted to 

volume-filled containers. In § 916.350 of 

the order’s rules and regulations, 

weight-count standards are established 

for all varieties of nectarines (except the 

Peento type), in Tables 1 and 2 of 

paragraph (a)(5)(iv). 

According to NAC, Peento varieties of 

donut nectarines have traditionally been 

packed in trays because they have been 

marketed as a premium variety, whose 

value justified the added packing costs. 

Recently, as the volume has increased, 

the value of the variety has diminished 

in the marketplace, and some handlers 

now desire to pack Peento variety 

nectarines in volume-filled containers to 

meet market demands. However, prior 

to this time, weight-count standards for 

Peento type nectarines had not been 

established in the order’s rules and 

regulations. Previously, weight-count 

standards for nectarines were for round 

nectarines. Peento type nectarines are 

shaped like donuts and fit into volumefilled containers differently, so the 

existing weight count standards were 

inappropriate. 


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In an effort to standardize the 

conversion from tray-packing to 

volume-filling for Peento type 

nectarines, the committee staff 

conducted weight-count surveys during 

the 2005 season to determine optimum 

weight-counts for the varieties at 

various fruit sizes. As a result, the staff 

prepared a new weight-count table 

applicable to only the Peento varieties. 

The Tree Fruit Quality Subcommittee 

reviewed the weight-counts at their 

November 10, 2005, meeting. At its 

February 3, 2006, meeting, NAC 

approved the recommendation that the 

new weight-counts be implemented for 

the 2006 and subsequent seasons. 

This rule continues in effect the 

revisions made to paragraph (a)(5)(iv) of 

§ 916.350 by adding a new Table 3, 

establishing the weight-counts for 

Peento type nectarines, following Tables 

1 and 2. In a conforming change, the 

titles of Tables 1 and 2 continue to be 

revised by adding the words ‘‘except 

Peento type nectarines’’ between the 

words ‘‘nectarines’’ and ‘‘packed.’’

Conforming changes will continue in 

effect to be made by adding the words 

‘‘except for Peento type nectarines’’ at 

the end of paragraphs (a)(2)(ii), (a)(3)(ii), 

(a)(4)(ii), (a)(5)(ii), (a)(6)(ii), (a)(7)(ii), 

(a)(8)(ii), and (a)(9)(ii) of § 916.356. 

The committee staff will continue to 

conduct weight-count surveys to ensure 

that the Peento varieties that are packed 

in volume-filled containers meet the 

weight-count standards established for 

tray-packed nectarines, and to ensure 

that the weight-counts continue to be 

appropriate. 

Varietal Container Markings 

Sections 916.350 and 917.442 of the 

orders’ rules and regulations require 

that all containers and packages of 

nectarines and peaches (except for 

consumer packages in master containers 

or those mailed directly to consumers) 

shall be marked with the name of the 

variety of the fruit if it is known, or with 

‘‘Unknown Variety’’ if the variety is not 

known. 

Many industry members believe that 

variety recognition may limit the 

industry’s ability to provide the best 

quality fruit at any given time during 

the harvest season. Factors such as 

weather can contribute to wide 

variability in harvest dates for 

individual varieties from year to year, 

making it difficult to meet customer 

demands on a timely basis. Eliminating 

the varietal container marking 

requirement would ease the transition 

that occurs when older trees are 

replaced with newly introduced 

varieties. New varieties could be 

substituted for obsolete varieties 

without risking the loss of market 

opportunities. Therefore, industry 

members suggested that elimination of 

the varietal container marking 

requirement would enable them to 

supply whichever varieties are 

appropriately mature throughout the 

season without regard for variety 

identity. 

The Tree Fruit Quality Subcommittee 

discussed this issue at many of their 

meetings in 2004 and 2005. They 

believe that eliminating the requirement 

that variety names be marked on 

containers will allow handlers greater 

flexibility to supply the best possible 

nectarines and peaches to customers 

throughout the marketing season 

without regard to variety. Consumer 

satisfaction should be raised, which will 

in turn increase returns to growers and 

handlers. 

Upon recommendation by the Tree 

Fruit Quality Subcommittee, NAC and 

PCC voted unanimously at their 

meetings on February 3, 2006, to 

recommend elimination of the 

requirement that fruit variety be marked 

on containers of nectarines and peaches. 

Accordingly, paragraphs (a)(2) of 

§§ 916.350 and 917.442 continue in 

effect to be amended by deleting the 

words, ‘‘and, except for consumer 

packages in master containers and 

consumer packages mailed directly to 

consumers, the name of the variety, if 

known, or, when the variety name is not 

known, the words ‘unknown variety.’ A 

marketing name, trade mark, or brand 

name may be associated with a variety 

name, but cannot be substituted for the 

variety name.’’

Additionally, paragraph (a)(11) of 

§ 916.350 and paragraph (a)(12) of 

§ 917.442 continue in effect to be 

amended by deleting the words ‘‘the 

name of the variety, if known, or if the 

variety is not known, the words 

Unknown Variety.’’

This rule reflects 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 meet acceptable 

handling requirements established 

under each of these orders. This rule 

also helps 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 

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 180 

California nectarine and peach handlers 

subject to regulation under the orders 

covering nectarines and peaches grown 

in California, and about 800 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 $6,500,000. 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 2005 

season, the committees’ staff estimates 

that the average handler price received 

was $10.00 per container or container 

equivalent of nectarines or peaches. A 

handler would have to ship at least 

650,000 containers to have annual 

receipts of $6,500,000. Given data on 

shipments maintained by the 

committees’ staff and the average 

handler price received during the 2005 

season, the committees’ staff estimates 

that small handlers represent 

approximately 86 percent of all the 

handlers within the industry. 

The committees’ staff has also 

estimated that fewer than 10 percent of 

the producers in the industry could be 

defined as other than small entities. For 

the 2005 season, the committees’ staff 

estimates that the average producer 


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price received was $5.25 per container 

or container equivalent for nectarines 

and peaches. A producer would have to 

produce at least 142,858 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 2005 season, the committees’

staff estimates that small producers 

represent more than 90 percent of the 

producers within the industry. 

With an average producer price of 

$5.25 per container or container 

equivalent, and a combined packout of 

nectarines and peaches of 

approximately 38,776,500 containers, 

the value of the 2005 packout is 

estimated to be $203,576,600. Dividing 

this total estimated grower revenue 

figure by the estimated number of 

producers (800) yields an estimated 

average revenue per producer of about 

$254,471 from the sales of peaches and 

nectarines. 

Regulatory Revisions 

Under authority provided in §§ 916.52 

and 917.41 of the orders, grade, size, 

maturity, pack, and container marking 

requirements are established for fresh 

shipments of California nectarines and 

peaches, respectively. Such 

requirements are in effect on a 

continuing basis. NAC and PCC met on 

February 3, 2006, and unanimously 

recommended that these handling 

requirements be revised for the 2006 

season. These recommendations had 

been presented to the committees by 

various subcommittees, each charged 

with review and discussion of the 

changes. The changes: (1) Revise 

varietal size, maturity, and pack 

requirements to reflect changes in 

production and marketing practices; (2) 

authorize continued shipments of ‘‘CA 

Utility’’ quality nectarines and peaches 

during the 2006 and subsequent 

seasons; (3) establish weight-count 

standards for Peento type nectarines 

packed in volume-filled containers; and 

(4) eliminate the varietal container 

marking requirements for nectarines and 

peaches. 

Minimum Maturity and Size Levels— 

Discussions and Alternatives 

Sections 916.356 and 917.459 

establish minimum fruit 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 

measurements suggested by maturity 

guides (e.g., color chips), as reviewed 

and recommended by SPI annually 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 observed during previous 

seasons’ inspections. Adjustments in the 

guides utilized ensure acceptable fruit 

maturity and increased consumer 

satisfaction while benefiting nectarine 

and peach producers and handlers. 

Sections 916.356 and 917.459 of the 

orders’ rules and regulations also 

establish minimum sizes for various 

varieties of nectarines and peaches. This 

rule continues in effect the adjustments 

to the minimum sizes authorized for 

certain varieties of each commodity for 

the 2006 season. Minimum size 

regulations are put in place to encourage 

producers to leave fruit on the trees for 

a longer period of time, increasing both 

maturity and fruit size. Increased fruit 

size increases the number of packed 

containers per acre, and coupled with 

heightened maturity levels, also 

provides greater consumer satisfaction, 

which in turn fosters repeat purchases 

that benefit producers and handlers 

alike. 

Annual adjustments to minimum 

sizes of nectarines and peaches, such as 

these, are recommended by 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, however, would be a 

significant departure from the 

committees’ practices and represent a 

significant change in the regulations as 

they currently exist; 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. 

Grade and Quality Requirements— 

Discussions and Alternatives 

In 1996, §§ 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. Although ‘‘CA Utility’’ fruit is 

lower in quality than that meeting the 

modified U.S. No. 1 grade requirements, 

it has been accepted in many markets. 

Between 1996 and 2004, shipments of 

‘‘CA Utility’’ quality fruit ranged from 1 

to 6 percent of total nectarine and peach 

shipments. In 2005, shipments of ‘‘CA 

Utility’’ quality fruit were 8.6 percent 

and 7.1 percent of total nectarine and 

peach shipments, respectively. 

This rule continues in effect the 

authorization for continued shipments 

of ‘‘CA Utility’’ quality nectarines and 

peaches during the 2006 and subsequent 

seasons. Not authorizing such 

shipments would curtail shipments of 

fruit for which there is an appropriate 

market. Because ‘‘CA Utility’’ is widely 

accepted, it is no longer necessary to 

reconsider this authorization on an 

annual basis. 

Weight-Count Standards—Discussions 

and Alternatives 

Section 916.350 also establishes 

weight-count standards for nectarines 

packed in volume-filled containers. 

These standards define a maximum 

number of nectarines in a 16-pound 

sample when such fruit, which may be 

packed in tray-packed containers, is 

converted to volume-filled containers. 

Peento type nectarines were formerly 

packed exclusively in trays because of 

their high market value. With increased 

production and lowered market value, 

retailers have begun requesting that 

packers place the donut-shaped fruit in 

volume-filled containers. Peento type 

nectarines fit into the boxes differently 

than spherical nectarines, so it is 

necessary to assign appropriate weight 

counts for Peento type nectarines in 

volume-filled containers. 

The committee staff was directed to 

collect data during the 2005 season from 

which recommendations for change 

could be made. Extensive sampling of 

Peento type nectarines of various sizes 

provided the information needed for the 

committee to make recommendations 

regarding the new weight-count 

standards. The Tree Fruit Quality 

subcommittee reviewed these standards 

at their meeting on November 10, 2005. 

The standards were then presented to 

NAC, who unanimously recommended 

adding the new weight count standards 

for Peento type nectarines to the 

regulations at their meeting on February 

3, 2006. 

Without the appropriate weightcounts, Peento type nectarines cannot 

be packed in volume-filled containers. 

NAC believes that the recommended 

weight-count standards will satisfy the 

stated needs of retailers, will open 

additional market opportunities for the 

industry and will provide for uniformity 

of sizes between nectarines packed in 

tray- and volume-filled containers. 

Varietal Container Marking 

Requirements—Discussions and 

Alternatives 

Sections 916.350 and 917.442 of the 

orders’ rules and regulations require 


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that all containers of nectarines and 

peaches be marked with the fruit’s 

varietal name, if known. 

Many industry members believe that 

variety recognition may limit the 

industry’s ability to provide the best 

quality fruit at any given time during 

the harvest season. Factors such as 

weather can contribute to wide 

variability in harvest dates for 

individual varieties from year to year, 

making it difficult to meet customer 

demands on a timely basis. The 

committees believe that eliminating the 

varietal container marking requirement 

will ease the transition that occurs when 

older trees are replaced with newly 

introduced varieties. New varieties may 

be substituted for obsolete varieties 

without risking the loss of market 

opportunities. Therefore, industry 

members have suggested that 

elimination of the varietal container 

marking requirement will enable them 

to supply whichever varieties are 

appropriately mature throughout the 

season without regard for variety 

identity. They believe that consumer 

satisfaction will be raised, which will in 

turn increase returns to growers and 

handlers. 

The Tree Fruit Quality Subcommittee 

discussed the issue at many of their 

recent meetings. Some members 

suggested that the requirement be left in 

place so that marketers and consumers 

would know what varieties of fruit they 

purchased and be encouraged to make 

repeat purchases. But the majority of 

subcommittee members voted to 

recommend elimination of the varietal 

container marking requirement, citing 

brand and commodity recognition in the 

market and easier transition to newer 

varieties as justification for the change. 

The Tree Fruit Subcommittee made the 

recommendation to both NAC and PCC, 

who agreed that varietal markings are no 

longer necessary or prudent, and in turn 

recommended at their February 3, 2006, 

meetings that the varietal container 

marking requirement be eliminated. 

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’ Web site, thereby 

increasing the availability of this critical 

information within the industry. 

An interim final rule concerning this 

action was published in the Federal 

Register on April 10, 2006. 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 June 9, 2006. One 

comment was submitted on the rule. 

The commenter pointed out that 

obsolete language that had previously 

been removed from § 916.356(a)(1) (69 

FR 44457, July 26, 2004) was 

inadvertently included in the interim 

final rule. Therefore, this rule revises 

paragraph (a)(1) of § 916.356 by 

removing the obsolete language 

regarding the color requirement 

exemption for U.S. No. 1 grade 

nectarines. 

Each of the recommended handling 

requirement changes for the 2006 season 

is expected to generate financial benefits 

for 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 will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

nectarine or peach 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. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

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. During the February 

3, 2006, teleconference meeting all 

entities, large and small, were 

encouraged to express views on these 

issues. These regulations were also 

reviewed and thoroughly discussed at 

public subcommittee meetings held on 

November 30, 2004, and April 19, 

September 2, October 5, and November 

10, 2005. 

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 a 

change, as published in the Federal 

Register (71 FR 17970, April 10, 2006), 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim final rule 

amending 7 CFR parts 916 and 917, 

which was published in the Federal 

Register at 71 FR 17970 on April 10, 

2006, is adopted as a final rule with the 

following change: 


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55096 Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / Rules and Regulations 

PART 916—NECTARINES GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

parts 916 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

§ 916.356 [Amended] 

■ 2. Section 916.356 paragraph (a)(1) 

introductory text is amended by 

removing words ‘‘Provided further, That 

all varieties of nectarines which fail to 

meet the U.S. No. 1 grade only on 

account of lack of blush or red color due 

to varietal characteristics shall be 

considered as meeting the requirements 

of this subpart:’’. 

Dated: September 15, 2006. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 06–7868 Filed 9–20–06; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 902 

50 CFR Part 622 

[Docket No. 060525140–6221–02; I.D. 

051106B] 

RIN 0648–AT75 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; SnapperGrouper Fishery Off the Southern 

Atlantic States; Amendment 13C 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement Amendment 13C to the 

Fishery Management Plan for the 

Snapper-Grouper Fishery of the South 

Atlantic Region (FMP), as prepared and 

submitted by the South Atlantic Fishery 

Management Council (Council). 

Amendment 13C establishes 

management measures to end 

overfishing of snowy grouper, golden 

tilefish, vermilion snapper, and black 

sea bass and measures to allow 

moderate increases in recreational and 

commercial harvest of red porgy 

consistent with the rebuilding program 

for that stock. 

For the commercial fisheries, this 

final rule establishes restrictive quotas 

for snowy grouper, golden tilefish, 

vermilion snapper, and black sea bass 

and, after the quotas are met, prohibits 

all purchase and sale of the applicable 

species and restricts all harvest and 

possession to the applicable bag limit; 

establishes restrictive trip limits for 

snowy grouper and golden tilefish; 

requires at least 2-inch (5.1-cm) mesh in 

the back panel of black sea bass pots; 

requires black sea bass pots to be 

removed from the water after the quota 

is reached; changes the fishing year for 

black sea bass; increases the trip limit 

for red porgy; establishes a red porgy 

quota that would allow a moderate 

increase in harvest; and, after the red 

porgy quota is reached, prohibits all 

purchase and sale and restricts all 

harvest and possession to the bag limit. 

For the recreational fisheries, this 

final rule reduces the bag limits for 

snowy grouper, golden tilefish, and 

black sea bass; increases the minimum 

size limit for vermilion snapper and 

black sea bass; changes the fishing year 

for black sea bass; and increases the bag 

limit for red porgy. 

The intended effects of this final rule 

are to eliminate or phase out overfishing 

of snowy grouper, golden tilefish, 

vermilion snapper, and black sea bass; 

and increase red porgy harvest 

consistent with an updated stock 

assessment and rebuilding plan to 

achieve optimum yield. Finally, NMFS 

informs the public of the approval by 

the Office of Management and Budget 

(OMB) of the collection-of-information 

requirements contained in this final rule 

and publishes the OMB control numbers 

for those collections. 

DATES: This final rule is effective 

October 23, 2006. 

ADDRESSES: Copies of the Final 

Regulatory Flexibility Analysis (FRFA) 

and the Record of Decision (ROD) may 

be obtained from John McGovern, 

NMFS, Southeast Regional Office, 263 

13th Avenue South, St. Petersburg, FL 

33701; telephone 727–824–5305; fax 

727–824–5308; e-mail 

John.McGovern@noaa.gov. 

Comments regarding the burden-hour 

estimates or other aspects of the 

collection-of-information requirements 

contained in this final rule may be 

submitted in writing to Jason Rueter at 

the Southeast Regional Office address 

(above) and to David Rostker, Office of 

Management and Budget (OMB), by email at David_Rostker@omb.eop.gov, or 

by fax to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: John 

McGovern, telephone: 727–824–5305; 

fax: 727–824–5308; e-mail: 

John.McGovern@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

snapper-grouper fishery off the southern 

Atlantic states is managed under the 

FMP. The FMP was prepared by the 

Council and is implemented under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) by 

regulations at 50 CFR part 622. 

On May 18, 2006, NMFS published a 

notice of availability of Amendment 13C 

and requested public comment (70 FR 

28841). On June 9, 2006, NMFS 

published the proposed rule to 

implement Amendment 13C and 

requested public comment (71 FR 

33423). NMFS approved Amendment 

13C on August 14, 2006. The rationale 

for the measures in Amendment 13C is 

provided in the amendment and in the 

preamble to the proposed rule and is not 

repeated here. 

Comments and Responses 

NMFS received a total of 32 comment 

letters: 17 addressed Amendment 13C, 6 

addressed the Final Environmental 

Impact Statement (FEIS) associated with 

Amendment 13C, and 9 addressed the 

proposed rule. Four of these comment 

letters supported the proposed actions. 

The remaining comment letters opposed 

one or more of the proposed actions for 

reasons summarized below. Similar 

comments are consolidated, and each is 

followed by NMFS’s response. 

Comment 1: Concerns were raised 

about edits made to Amendment 13C 

after it was approved by the Council and 

its Scientific and Statistical Committee 

(SSC), and before it was transmitted for 

Secretarial review. At issue is whether 

NMFS altered the document without the 

Council’s knowledge and in a way that 

was inconsistent with the Council’s 

intent. 

Response: At the December 2005 

meeting, the Council chose several 

different preferred alternatives than 

those in the public hearing draft of 

Amendment 13C. Thus, when 

approving Amendment 13C for 

Secretarial review during its December 

2005 meeting, the Council requested the 

NMFS and Council staffs work together 

through an Interdisciplinary Plan Team 

(IPT) to finalize the integrated 

amendment for Secretarial review. 

Specifically, the Council directed the 

IPT to modify a number of preferred 

alternatives, and to ‘‘* * * complete the 

document as reflected by all the 

discussion here at this meeting with the 

preferreds and everything else.’’ The IPT 

made the requested edits following the 

December Council meeting. Edits 

included modifying and supplementing 

analyses, as needed, to describe the 

effects of the Council’s revised preferred 

alternatives that were chosen to further 

mitigate the unavoidable short-term 


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