49128 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

Center and to address any other FOIArelated inquiries. 

FOIA Requester Service Center means 

the OGE unit designated under E.O. 

13392 to answer any questions 

requesters have about the status of 

OGE’s processing of their FOIA 

requests. The Center may be contacted 

at telephone number: 202–482–9210 

(TDD: 202–482–9293). 

* * * * * 

§ 2604.201 [Amended] 

■ 3. Section 2604.201(a)(1) is amended 

by removing the phrase ‘‘telephone at 

202–208–8000 or FAX 202–208–8037,’’

in the second sentence and adding in its 

place the phrase ‘‘telephone: 202–482–

9300, TDD: 202–482–9293, or FAX: 

202–482–9237,’’. 

§ 2604.301 [Amended] 

■ 4. In § 2604.301(a), the first sentence 

is amended by: 

■ A. Removing the phrase ‘‘telephone, 

202–208–8000, or FAX, 202–208–8037,’’

and adding in its place the phrase 

‘‘telephone: 202–482–9300, TDD: 202–

482–9293, or FAX: 202–482–9237,’’; and 

■ B. By adding between the ZIP Code 

‘‘20005–3917’’ and the word ‘‘or’’ the 

phrase ‘‘, by E-mail: usoge@oge.gov,’’. 

§ 2604.602 [Amended] 

■ 5. Section 2604.602(b) is amended by 

adding between the words ‘‘guidance’’

and ‘‘and’’ the phrase ‘‘, including 

regarding Executive Order 13392 

(Improving Agency Disclosure of 

Information),’’. 

[FR Doc. E7–16940 Filed 8–27–07; 8:45 am] 

BILLING CODE 6345–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Docket No. AMS–FV–07–0030; FV07–916/ 

917–4 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 (USDA) is adopting, as a 

final rule, without change, an interim 

final rule eliminating grade, size, 

maturity, pack, container and inspection 

requirements for all California 

nectarines and peaches except those 

packed in containers labeled ‘‘California 

Well Matured’’ or ‘‘CA WELL MAT.’’

This rule also continues in effect 

seasonal adjustments to the handling 

requirements applicable to well matured 

fruit and the removal of certain handler 

reporting requirements that are deemed 

no longer necessary. 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 reduces handler 

costs while enabling handlers to 

continue to meet the demands of their 

buyers. 

EFFECTIVE DATE: September 27, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Garcia, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487–

5901, Fax: (559) 487–5906; or E-mail: 

Jennifer.Garcia3@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, both as amended (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 final rule continues in effect the 

provisions of an interim final rule action 

that: (1) Eliminated grade, size, 

maturity, pack, container and inspection 

requirements for all California 

nectarines and peaches except those 

packed in containers labeled ‘‘California 

Well Matured’’ or ‘‘CA WELL MAT;’’ (2) 

made seasonal adjustments to the 

handling requirements applicable to 

California Well Matured fruit; and (3) 

removed certain handler reporting 

requirements that are deemed no longer 

necessary. 

These changes allow industry 

handlers to reduce costs and provide 

them greater flexibility in meeting buyer 

preferences. Also, adjustments are made 

in light of the newly implemented 

California State marketing program. 

Sections 916.52 and 917.41 of the 

orders provide authority for handling 

regulations for fresh California 

nectarines and peaches. The regulations 

may include grade, size, maturity, 

quality, pack, and container 

requirements. The orders also provide 

that whenever such requirements are in 

effect, the fruit subject to such 

regulation must be inspected by the 

Federal or Federal-State Inspection 

Service (FSIS) and certified as meeting 

the applicable requirements. 

The nectarine order has been in effect 

since 1939, and the peach program has 

been in effect since 1958. The orders 

have been used over the years to 

establish a quality control program that 

includes minimum grades, sizes, and 

maturity standards. That program has 

helped improve the quality of product 

moving from the farm to market, and 

has helped growers and handlers more 

effectively market their crops. 

Additionally, the orders have been used 

to ensure that only satisfactory quality 

nectarines and peaches reach the 

consumer. This has helped increase and 

maintain market demand over the years. 

Sections 916.53 and 917.42 authorize 

the modification, suspension, or 

termination of regulations issued under 

916.52 and 917.41, respectively. 

Changes in regulations have been 

implemented to reflect changes in 


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industry operating practices and to 

solve marketing problems as they arise. 

The committees, which are responsible 

for local administration of the orders, 

meet whenever needed, but at least 

annually, to discuss the orders and the 

various regulations in effect and to 

determine if, or what, changes may be 

necessary to reflect industry needs. As 

a result, regulatory changes have been 

made numerous times over the years to 

address industry changes and to 

improve program operations. 

The industry has struggled to reduce 

costs in recent years. In its efforts to 

reduce costs, the industry considered 

adopting audit-based inspection 

programs in lieu of traditional 

inspection programs. Ultimately, the 

industry determined that these 

programs would not presently provide 

sufficient savings to the industry. More 

recently, the industry considered 

replacing the existing Federal marketing 

orders with programs under the State of 

California that would not require 

Federal or Federal-State inspection of 

nectarines and peaches. In 2006, at the 

request of the industry, the California 

Department of Food and Agriculture 

promulgated a State program 

authorizing voluntary inspections for 

the nectarine and peach industry. 

Beginning with the 2007 season, 

under the State program, all fruit must 

meet at least a modified U.S. No.1 grade 

and be ‘‘mature’’ as defined in the 

United States Standards for Grades of 

Nectarines (7 CFR 51.3145 through 

51.3160) and United States Standards 

for Grades of Peaches (7 CFR 51.1210 

through 51.1223) (hereinafter referred to 

as the ‘‘Standards’’). Inspection costs 

under the program are minimal because 

inspection is not mandatory. The 

industry has also shifted its data 

collection and promotional activities 

over to the State program. 

The industry subsequently discussed 

removing all handling regulations under 

the Federal orders. This would have 

also resulted in the elimination of all 

inspection requirements and expenses 

under the Federal orders. However, the 

industry believes that buyers value the 

committees’ ‘‘CA WELL MAT’’ mark as 

an indicator of high quality and may be 

willing to pay a premium price for fruit 

marked as such. The ‘‘CA WELL MAT’’

certification mark is owned by the 

California Tree Fruit Agreement, the 

management organization of the Peach 

Commodity Committee (PCC), which 

also manages the Nectarine 

Administrative Committee (NAC). 

Accordingly, the committees decided to 

maintain all Federal marketing order 

handling requirements, including 

inspection and certification 

requirements, for ‘‘California well 

matured’’ fruit. The committees, thus, 

recommended revising the handling 

regulations to cover only nectarines and 

peaches packed in containers marked 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured.’’

The term ‘‘well matured’’ is defined 

in the orders’ rules and regulations, and 

has been used for many years by the 

industry to describe a level of maturity 

higher than the definition of ‘‘mature’’

in the Standards. The FSIS has been 

providing certification that these 

products meet the definition. Containers 

of nectarines and peaches bearing the 

certification mark must meet all of the 

requirements entailed in the definition 

of ‘‘well matured.’’ Thus, nectarines and 

peaches must continue to meet the 

grade and size requirements set forth in 

the orders’ rules and regulations. 

The committees met on February 9, 

2007, and unanimously recommended 

that the handling requirements be 

revised for the 2007 season, which 

began in April. The committees 

recommended a crop estimate of 

19,000,000 containers of nectarines and 

20,000,000 containers of peaches at 

their May 1, 2007, meetings. 

Container and Pack Requirements 

Sections 916.52 and 917.41 of the 

orders authorize the establishment of 

pack and container requirements for 

nectarines and peaches, respectively. 

Such requirements appear in 

§§ 916.115, 916.350, 917.150 and 

917.442 of the orders’ rules and 

regulations. 

Prior to implementation of the interim 

final rule, §§ 916.115 and 917.150 

required that all containers of nectarines 

and peaches, respectively, be stamped 

with an FSIS lot stamp number showing 

that such fruit has been inspected. Since 

only nectarines and peaches marked 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured’’ are subject to inspection 

requirements beginning in the 2007 

season, §§ 916.115 and 917.150 were 

revised to specify that lot stamping is 

only required on containers so marked. 

This rule also continues in effect a 

revision to paragraph (a)(3) of 

§§ 916.350 and 917.442 to remove 

references to ‘‘U.S. Mature’’ and ‘‘US 

MAT’’ container markings. These 

references are no longer needed since 

only fruit packed in containers marked 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured’’ are subject to handling 

regulations under the orders this season. 

Sections 916.350 and 917.442 also 

establish weight-count standards for 

packed containers of nectarines and 

peaches, respectively. These regulations 

define a maximum number of nectarines 

or peaches in a sample when such fruit, 

which may be packed in tray-packed 

containers, is converted to volume-filled 

containers. The regulations also specify 

how the containers must be marked. In 

paragraph (a)(8) of § 916.350 and (a)(9) 

of § 917.442, weight marking 

requirements are established for 

nectarines and peaches packed in 

volume-filled Euro style containers. 

According to the committees, some 

retailers have requested handlers to 

supply volume-filled Euro containers 

with a net weight that is equal to the 

weight of tray-packed Euro containers. 

By eliminating the net weight 

requirement for volume-filled Euro 

containers, handlers are allowed to 

increase or decrease the amount of fruit 

in the container to match the net weight 

of fruit in a tray-packed Euro container, 

thus giving them more flexibility when 

marketing their fruit. 

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 interim final rule, nectarines 

and peaches were subject to a modified 

U.S. No. 1 grade requirement. Handlers 

were also able to pack to ‘‘CA Utility’’

quality standards, subject to container 

labeling requirements. The committees 

recommended continued use of these 

grade and quality requirements. 

However, they recommended that 

these requirements only be applied to 

nectarines and peaches packed in 

containers marked ‘‘CA WELL MAT’’ or 

‘‘California Well Matured.’’ This rule 

continues in effect revisions to 

paragraph (a) of §§ 916.356 and 917.459 

to specify such requirements only for 

containers of nectarines and peaches 

marked ‘‘CA WELL MAT’’ or ‘‘California 

Well Matured’’ during the 2007 and 

subsequent seasons. 

These changes allow industry 

handlers to reduce inspection costs by 

removing inspection and certification 

requirements on containers not marked 

‘‘CA WELL MAT’’ and provide them 

greater flexibility in meeting buyer 

preferences. 

This rule also continues in effect 

revisions of paragraph (a)(1) of § 916.356 

to add an additional tolerance for 

Peento-type nectarines. Peento-type 

nectarines, also known as donut 

nectarines due to their flattened shape, 

are prone to growth cracks, which 

emanate from the blossom end of the 

fruit. The committees believe that this is 

a minor defect that does not affect the 

edibility of the fruit. Thus, this action 

makes more Peento-type nectarines 

available to consumers without 


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materially impacting the overall quality 

of the fruit. 

Maturity Requirements 

Sections 916.52 and 917.41 of the 

orders also 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. 

The regulations also define a higher 

level of maturity (‘‘well-matured’’) that 

can be used at the option of handlers. 

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 may be applied by 

inspectors. These maturity guides are 

reviewed each year by the FSIS 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 appear in Table 

1 in paragraphs (a)(1)(iv) of §§ 916.356 

and 917.459, for nectarines and peaches, 

respectively. Seasonal adjustments 

being made to the maturity guide are 

described below. 

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

§ 916.356 of the order’s rules and 

regulations. This rule revises Table 1 of 

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

maturity guides for four varieties of 

nectarines. Specifically, the FSIS 

recommended adding maturity guides 

for the Larry’s Red, September Bright, 

and WF 1 varieties to be regulated at the 

J maturity guide, and for the Prima 

Diamond VII variety 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 revises Table 1 of 

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

maturity guides for 11 peach varieties. 

Specifically, the FSIS recommended 

adding maturity guides for the Super 

Chief and Sweet Crest varieties to be 

regulated at the H maturity guide; the 

Junelicious variety to be regulated at the 

I maturity guide; the Burpeachfourteen 

(Spring Flame 20), Henry III, Sharise, 

Sierra Rich, Sweet Blaze and Sweet Kay 

varieties to be regulated at the J maturity 

guide; and the Bright Princess and 

Summer Fling varieties to be regulated 

at the L maturity guide. 

The committees recommended these 

maturity guide requirements based on 

the FSIS’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, thereby increasing 

returns to producers and handlers. In 

addition, increased fruit size results in 

increased numbers of packed containers 

of nectarines and peaches per acre, 

which is also a benefit to producers and 

handlers. 

Several years ago the committees 

recommended revisions to allow 

handlers of late season nectarine and 

peach varieties to pack smaller sized 

fruit as long as the fruit was ‘‘well 

matured.’’ This rule continues in effect 

revisions to the size regulations in 

paragraphs (a)(6)(i), (a)(6)(ii), (a)(9)(i), 

and (a)(9)(ii) of § 916.356 and 

paragraphs (a)(6)(i) and (a)(6)(ii) to 

remove size options since only 

containers marked ‘‘CA WELL MAT’’ or 

‘‘California Well Matured’’ are subject to 

the size regulations under the orders. 

Varieties recommended for specific 

size regulations have been reviewed and 

such recommendations are based on the 

specific characteristics of each variety. 

The committees 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 

revisions to paragraphs (a)(3), (a)(4), and 

(a)(6) of § 916.356 to establish varietyspecific minimum size requirements for 

14 varieties of nectarines that were 

produced in commercially significant 

quantities of more than 10,000 

containers for the first time during the 

2006 season. 

For example, one of the varieties 

recommended for addition to the 

variety-specific minimum size 

requirements is the Burnectfive (Spring 

Flare 21) variety of nectarines, 

recommended for regulation at a 

minimum size 96. Studies of the size 

ranges attained by the Burnectfive 

(Spring Flare 21) variety revealed that 

100 percent of the containers met the 

minimum size of 96 during the 2005 

and 2006 seasons. Sizes ranged from 

size 50 to size 96, with 5.8 percent of 

the fruit in the 50 sizes, 15.7 percent of 

the packages in the 60 sizes, 28.6 

percent in the 70 sizes, 34.1 percent in 

the 80 sizes, and 16.8 percent in the 90 

sizes. 

A review of other varieties with the 

same harvesting period indicated that 

the Burnectfive (Spring Flare 21) 

variety 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. Thus, the 

recommendation to place the 

Burnectfive (Spring Flare 21) variety 

in the variety-specific minimum size 

regulation at a minimum size 96 was 

appropriate. This recommendation 

results from size studies conducted by 

the committees over a two-year period. 

Historical data such as this provides 

the committee 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, paragraph 

(a)(3) of § 916.356 is revised to include 

the Burnectfive (Spring Flare 21) 

variety; paragraph (a)(4) of § 916.356 

was revised to include the 

Burnecttwelve (Sweet Flare 21), Early 

Pearl, and Rose Bright varieties; and 

paragraph (a)(6) of § 916.356 was 

revised to include the August Bright, 

Burnectseventeen (Summer Flare 32), 

Candy Pearl, Grand Candy, Honey Diva, 

Larry’s Red, Prima Diamond VII, Spring 

PearlTM, Sugarine, and Zephyr nectarine 

varieties. 

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 to revise paragraphs 

(a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of 

§ 917.459 to establish variety-specific 

minimum size requirements for 11 

peach varieties that were produced in 

commercially significant quantities of 

more than 10,000 containers for the first 

time during the 2006 season. This rule 

also continues to remove the varietyspecific minimum size 16 requirements 

for seven varieties of peaches whose 


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shipments fell below 5,000 containers 

during the 2006 season. 

For example, one of the varieties 

recommended for addition to the 

variety-specific minimum size 

requirements was the May Snow variety 

of peaches, which was recommended 

for regulation at a minimum size 88. 

Studies conducted by the committees on 

the size ranges attained by the May 

Snow variety revealed that 97.8 percent 

of the containers met the minimum size 

of 88 during the 2005 and 2006 seasons. 

The sizes ranged from size 40 to size 88, 

with 11.6 percent of the containers 

meeting the size 40, 19.2 percent 

meeting the size 50, 45.7 percent 

meeting the size 60, 15.1 percent 

meeting the size 70, 3.4 percent meeting 

the size 80, 2.3 percent meeting the size 

84, and 0.5 percent meeting the size 88 

in the 2006 season. 

A review of other varieties with the 

same harvesting period indicated that 

the May Snow variety was also 

comparable to those varieties in its size 

ranges for that time period. Discussions 

between the committees and handlers 

known to pack the variety confirmed 

this information regarding minimum 

size and the harvesting period. Thus, 

the recommendation to place the May 

Snow variety in the variety-specific 

minimum size regulation at a minimum 

size 88 is appropriate. 

Historical data such as this provides 

the committee 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 

committee meetings when the staff 

receives such comments, either in 

writing or verbally. 

For reasons similar to those discussed 

in the preceding paragraph, paragraph 

(a)(2) of § 917.459 was revised to 

include the Snow Angel peach variety; 

paragraph (a)(3) of § 917.459 was 

revised to include the May Snow peach 

variety; paragraph (a)(4) of § 917.459 

was revised to include the May Saturn 

(Early Saturn) peach variety; paragraph 

(a)(5) of § 917.459 was revised to 

include the Candy Red, Raspberry, and 

Sugar Jewel peach varieties; and 

paragraph (a)(6) of § 917.459 was 

revised to include the Burpeachfifteen 

(Summer Flame 34), Burpeachsixteen, 

Burpeachtwenty (Summer Flame), 

Galaxy, and Snow Magic peach 

varieties. 

Section (a)(4) is reserved for any 

varieties which will be regulated at a 

size 84. The May Saturn (Early Saturn) 

variety, as noted above, is regulated at 

size 84 under (a)(4). 

This rule revises paragraph (a)(5) of 

§ 917.459 to remove the May Sun and 

Snow Prince peach varieties and 

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

the 24–SB, Crimson Queen, Jupiter, Red 

Giant, and Spring Gem peach varieties 

from the variety-specific minimum size 

requirements because less than 5,000 

containers of each of these varieties was 

produced during the 2006 season. 

Peach varieties removed from the 

peach variety-specific minimum size 

requirements are subject to the nonlisted variety size requirements 

specified in paragraphs (b) and (c) of 

§ 917.459. 

The committees 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. 

Reporting Requirements 

Sections 916.60 and 917.50 of the 

orders authorize the establishment of 

reporting requirements for nectarines 

and peaches, respectively. Prior to the 

interim rule, under 19 sections 916.160, 

917.178, and 917.179, handlers are 

required to file certain reports 

pertaining to daily packouts, annual 

shipments, and shipment destinations. 

The collection and dissemination of 

statistical information has been a 

valuable component of the programs, as 

it provides growers and handlers with 

information which enhances their 

decision-making ability. 

However, as a State marketing 

program has recently been implemented 

for the California peach and nectarine 

industries, which includes the 

collection and dissemination of 

statistical information, there is no longer 

a need to require these handler reports 

under the orders. Therefore, at their 

February 9, 2007, meetings, the 

committees recommended removing 

current handler reporting requirements, 

beginning with the 2007 season. The 

committees have implemented a 

memorandum of understanding to share 

information with the new State 

marketing order, so information 

collected by the State program can be 

utilized by the committees. 

This rule continues in effect revisions 

removing reporting requirements in 

§ 916.160 for nectarines and §§ 917.178 

and 917.179 for peaches. This action 

reduces handler costs under the orders. 

This rule reflects the need to revise 

the handling and reporting requirements 

for California nectarines and peaches. 

This rule is intended primarily to 

reduce costs and should therefore have 

a beneficial impact on producers, 

handlers, and consumers of fresh 

California nectarines and peaches. This 

rule is also intended to maintain the 

perceived value of the ‘‘California well 

matured’’ certification mark by 

maintaining current grade, size, quality, 

pack, container and inspection 

requirements on fruit packed and 

labeled as ‘‘California Well Matured’’ or 

‘‘CA WELL MAT.’’

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. 

Industry Information 

There are approximately 175 

California nectarine and peach handlers 

subject to regulation under the orders 

covering nectarines and peaches grown 

in California, and about 676 producers 

of these fruits in California. Small 

agricultural service firms, which 

include handlers, are defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those whose annual 

receipts are less than $6,500,000. Small 

agricultural producers are defined by 

the SBA 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 would not be 

considered small entities. For the 2006 

season, the committees’ staff estimated 

that the average handler price received 

was $9.00 per container or container 

equivalent of nectarines or peaches. A 

handler would have to ship at least 

722,223 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 2006 

season, the committees’ staff estimates 


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49132 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

that small handlers represent 

approximately 85 percent of all the 

handlers within the industry. 

The committees’ staff has also 

estimated that fewer than 68 producers 

in the industry would not be considered 

small entities. For the 2006 season, the 

committees estimated the average 

producer price received was $4.50 per 

container or container equivalent for 

nectarines and peaches. A producer 

would have to produce at least 166,667 

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 2006 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 

$4.50 per container or container 

equivalent, and a combined packout of 

nectarines and peaches of 36,388,996 

containers, the value of the 2006 

packout is estimated to be $163,750,482. 

Dividing this total estimated grower 

revenue figure by the estimated number 

of producers (676) yields an estimate of 

average revenue per producer of about 

$242,234 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. The committees met 

on February 9, 2007, and unanimously 

recommended that these handling 

requirements be revised for the 2007 

season. This final rule continues in 

effect the provisions of an interim final 

rule action that: (1) Eliminated grade, 

size, maturity, pack, container and 

inspection requirements for all 

California nectarines and peaches 

except those packed in containers 

labeled ‘‘California Well Matured’’ or 

‘‘CA WELL MAT’’; (2) makes seasonal 

adjustments to the handling 

requirements applicable to California 

Well Matured fruit; and (3) removes 

certain handler reporting requirements 

that are deemed no longer necessary. 

Container and Pack Requirements— 

Discussions and Alternatives 

Sections 916.350 and 917.442 

establish container and pack 

requirements. The committees 

discussed removing all handling 

regulations under the Federal orders, 

including inspection requirements. 

However, the industry believes that 

buyers value the committees’ ‘‘CA 

WELL MAT’’ mark as an indicator of 

high quality and may be willing to pay 

a premium price for fruit marked as 

such. Accordingly, they decided to 

maintain current grade, quality, 

maturity, size container, pack and 

inspection requirements for ‘‘well 

matured’’ fruit. The committees, thus, 

recommended revising the handling 

regulations to cover only nectarines and 

peaches packed in containers marked 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured.’’

Lot Stamping Requirements— 

Discussions and Alternatives 

Sections 916.115 and 917.150 

establish lot stamping requirements. 

This rule continues in effect lot 

stamping requirements to require such 

markings only on containers labeled 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured.’’ An alternative would be to 

leave the existing lot stamping 

requirements unchanged, but the 

requirements would not be consistent 

with the other recommended changes 

and would result in unnecessary 

expenses for industry handlers. Based 

on this, the committees recommended 

revising lot stamping requirements to 

require such markings only on 

containers labeled ‘‘CA WELL MAT’’ or 

‘‘California Well Matured.’’

Weight Marking Requirements— 

Discussions and Alternatives 

Sections 916.350 and 917.442 also 

establish weight marking requirements 

for nectarines and peaches packed in 

Euro type volume-filled containers. 

These require each five down Euro 

container of loose-filled nectarines or 

peaches to be marked with the words 

‘‘29 pounds net weight.’’

In the past, handlers’ sales to their 

retail customers have been based on set 

net weights for most pack styles. With 

the changing marketing environment, 

some retailers want volume-filled pack 

styles that have the same net weight as 

tray pack styles, especially for the Euro 

type containers. 

Handlers either respond to the 

requests of the retailers or risk losing 

business from those retailers. The 

committees agreed that weight markings 

are no longer necessary; and, in turn, at 

their February 9, 2007, meetings 

recommended eliminating the Euro type 

container weight marking requirement. 

Without the weight marking 

requirements, nectarines and peaches 

packed in Euro style volume-filled 

containers can be packed to the buyers’

preferences. The committees believe 

that the elimination of marking 

requirements will satisfy the stated 

needs of retailers and will open 

additional market opportunities for the 

industry. 

Grade and Quality Requirements— 

Discussions and Alternatives 

Sections 916.356 and 917.459 

establish minimum grade and quality 

requirements. The NAC and PCC 

previously discussed removing all 

handling regulations under the orders in 

favor of regulations under the newlypromulgated State marketing order. 

However, the industry still wanted to 

retain quality standards for fruit 

marketed as ‘‘CA WELL MAT,’’ a term 

which has value to buyers and the 

industry. One alternative the 

committees discussed was to allow 

handlers to use the mark under a 

licensing agreement with CTFA. Taking 

into account enforcement concerns, this 

approach was not considered feasible. 

At their February 9, 2007, meetings, 

the committees recommended revising 

the grade and quality requirements to 

apply only to nectarines and peaches 

packed in containers marked ‘‘CA WELL 

MAT’’ or ‘‘California Well Matured’’

beginning with the 2007 season. This 

action ensures that fruit packed in 

containers marked ‘‘CA WELL MAT’’ or 

‘‘California Well Matured’’ is inspected 

and meets applicable grade and quality 

requirements. For this reason, the 

committees unanimously recommended 

the revisions in this final rule and 

believe that they will help accomplish 

the goals of the industry. 

Minimum Maturity and Size 

Requirements—Discussions and 

Alternatives 

Sections 916.356 and 917.459 

establish minimum fruit maturity levels. 

This rule continues in effect 

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 the FSIS 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 

specify minimum sizes for various 

varieties of nectarines and peaches. This 

rule continues in effect adjustments to 


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Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 49133 

the minimum sizes authorized for 

certain varieties of each commodity for 

the 2007 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’ past practices and represent 

a significant change in the regulations as 

they currently exist. For these reasons, 

this alternative was not recommended. 

Sections 916.356 and 917.459 of the 

orders’ rules and regulations also 

specify size requirements for handlers of 

late season nectarine and peach 

varieties wishing to pack smaller sized 

fruit as long as the fruit was ‘‘well 

matured.’’ Since only containers marked 

‘‘CA WELL MAT’’ or ‘‘California Well 

Matured’’ are subject to minimum size 

requirements, this rule also continues in 

effect revisions to the size regulations 

which remove these obsolete size 

options. 

Reporting Requirements—Discussions 

and Alternatives 

Sections 916.160 and 917.178 

establish reporting requirements for 

nectarine and peach handlers, 

respectively. Similar reporting 

requirements have been established 

under the newly-implemented 

California State marketing program. 

Accordingly, collection of this 

information under the Federal orders is 

no longer necessary. The committees 

have implemented a memorandum of 

understanding to share information with 

the new State marketing order, so 

information collected by the State 

program can be utilized by the 

committees. An alternative would be to 

maintain the reporting requirements, 

but this would result in an unnecessary 

reporting burden. For this reason, the 

removal of reporting requirements was 

unanimously recommended by both 

committees. 

The committees make 

recommendations regarding the 

revisions in handling and reporting 

requirements after considering all 

available information, including 

comments received by committee staff. 

At the meetings, the impact of and 

alternatives to these recommendations 

are deliberated. The committees consist 

of individual producers and handlers 

with many years of experience in the 

industry who are familiar with industry 

practices and trends. All committee 

meetings are open to the public and 

comments are widely solicited. In 

addition, minutes of all 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. 

Regarding the impact of this action on 

the affected entities, each of the 

revisions is expected to generate 

financial benefits for producers and 

handlers through reduced costs and 

increased fruit sales. Both large and 

small entities are expected to benefit 

from the changes, and the costs of 

compliance are not expected to be 

significantly different between large and 

small entities. 

This rule continues in effect revisions 

reducing reporting and recordkeeping 

requirements on both small and large 

nectarine and peach handlers regulated 

under the orders. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the information collection 

requirements that were removed by the 

interim final rule were approved by the 

Office of Management and Budget 

(OMB), under OMB No. 0581–0189, 

Generic OMB Fruit Crops. Removal of 

the reporting requirements under Parts 

916 and 917 is expected to reduce the 

reporting burden on small or large 

peach and nectarine handlers by 370 

hours, and should further reduce 

industry expenses. 

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. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

Further, 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 

9, 2007, meetings, all entities, large and 

small, were encouraged to express views 

on these issues. 

An interim final rule concerning this 

action was published in the Federal 

Register on April 16, 2007 (72 FR 

18847) . Copies of the rule were posted 

on the committees’ Web site. In 

addition, the rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. That rule 

provided a 60-day comment period 

which ended June 15, 2007. Two 

comments were received during the 

comment period in response to the rule. 

The first commenter, representing the 

committees, agrees with a majority of 

the changes that were outlined in the 

interim final rule. The commenter stated 

that there was one discrepancy in 

regards to the reporting requirements. 

The commenter contends that the 

committees’ intent was to have 

reporting requirements suspended, not 

removed, in case the committees 

recommend reinstating the Federal 

orders’ reporting requirements in the 

future. The commenter contends that if 

the reporting requirements are removed, 

the current OMB approval on the 

committees’ reporting forms will be 

eliminated. 

The suspension of reporting 

requirements without a reactivation date 

is essentially equivalent to the removal 

of reporting requirements. The 

reinstatement process would not be 

shortened by retaining the regulations. 

USDA will work to ensure a timely 

reinstatement of the reporting 

requirements should the committees 

recommend using them in the future. 

Accordingly, no changes have been 

made to the rule based on this comment. 

The second commenter contends that 

lowering industry quality standards will 

adversely affect the public in a number 

of ways. 

However, previously mentioned, 

beginning with the 2007 season, under 

the new State program, all fruit must 

meet at least a modified U.S. No. 1 grade 

and be ‘‘mature’’ as defined in the 

Standards for nectarines and peaches. 

Under the Federal program, all 

marketing order handling requirements, 

including inspection and certification 

requirements, for ‘‘California well 

matured’’ fruit are maintained. The 

quality standards are not being lowered; 

rather they are being revised to give 


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49134 Federal Register / Vol. 72, No. 166 / Tuesday, August 28, 2007 / Rules and Regulations 

handlers more cost-saving options. 

Accordingly, no changes have been 

made to the rule based on this comment. 

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, and other information, it is 

found that finalizing the interim final 

rule, without change, as published in 

the Federal Register (72 FR 18847, April 

16, 2007) will tend to effectuate the 

declared policy of the Act. With regard 

to revision to the rules and regulations 

under the order and concerning those 

provisions that were removed or 

terminated, it is found that those 

provisions no longer 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. 

PARTS 916 and 917—[AMENDED] 

■ Accordingly, the interim final rule 

amending 7 CFR parts 916 and 917 

which was published at 72 FR 18847 on 

April 16, 2007, is adopted as a final rule 

without change. 

Dated: August 21, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 07–4161 Filed 8–27–07; 8:45 am] 

BILLING CODE 3410–02–M 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Docket No. AMS–FV–07–0085; FV07–922–

2 PR] 

Apricots Grown in Designated 

Counties in Washington; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

Washington Apricot Marketing 

Committee (Committee) for the 2007–

2008 and subsequent fiscal periods from 

$1.00 to $1.50 per ton for Washington 

apricots. The Committee is responsible 

for local administration of the marketing 

order regulating the handling of apricots 

grown in designated counties in 

Washington. Assessments upon 

handlers of apricots are used by the 

Committee to fund reasonable and 

necessary expenses of the program. The 

fiscal period for the marketing order 

began April 1 and ends March 31. The 

assessment rate will remain in effect 

indefinitely unless modified, suspended 

or terminated. 

EFFECTIVE DATE: August 29, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Robert J. Curry or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW Third Avenue, 

Suite 385, Portland, OR 97204; 

Telephone: (503) 326–2724; Fax: (503) 

326–7440; or E-mail: 

Robert.Curry@usda.gov or 

GaryD.Olson@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, 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 No. 

922 (7 CFR part 922), as amended, 

regulating the handling of apricots 

grown in designated counties in 

Washington, hereinafter referred to as 

the ‘‘order.’’ The order is 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 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, apricot handlers in designated 

counties in Washington are subject to 

assessments. Funds to administer the 

order are derived from such 

assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable Washington 

apricots beginning April 1, 2007, and 

will continue until amended, 

suspended, or terminated. 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. Such 

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 increases the assessment 

rate established for the Committee for 

the 2007–2008 and subsequent fiscal 

periods from $1.00 to $1.50 per ton for 

Washington apricots handled under the 

order. 

The order provides authority for the 

Committee, with the approval of USDA, 

to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the Committee are 

producers and handlers of apricots in 

designated counties in Washington. 

They are familiar with the Committee’s 

needs and with the costs for goods and 

services in their local area and are thus 

in a position to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed at a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2005–2006 and subsequent 

fiscal periods, the Committee 

recommended, and the USDA approved, 

an assessment rate of $1.00 per ton of 

apricots handled. This rate continues in 

effect from fiscal period to fiscal period 

unless modified, suspended, or 

terminated by USDA upon 

recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on May 24, 2007, 

and unanimously recommended 2007–

2008 expenditures of $6,743. In 

comparison, the budgeted expenditures 


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