[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Proposed Rules]
[Pages 49568-49571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24316]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 189 / Friday, September 28, 2001 / 
Proposed Rules  

[[Page 49568]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 928

[Docket No. FV01-928-2 PR]


Papayas Grown in Hawaii: Reapportionment of Grower Membership on 
the Papaya Administrative Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule would reapportion grower membership on the Papaya 
Administrative Committee (committee) due to shifts in papaya 
production. The committee locally administers the Hawaii papaya 
marketing order (order) which regulates the handling of papayas grown 
in Hawaii. The committee is comprised of 13 members of which 9 are 
growers, 3 are handlers, and 1 is a public member. Since 1994, District 
1 has been represented by seven grower members, and Districts 2 and 3 
have been represented by one grower member each. This rule would 
reapportion grower membership by decreasing the number of grower 
members representing District 1 to six members and increasing the 
number of grower members representing District 3 to two members.

DATES: Comments must be received by October 29, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-5698; or E-mail: [email protected]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register and will be made available for public 
inspection in the Office of the Docket Clerk during regular business 
hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, 
California Marketing Field Office, Marketing Order Administration 
Branch, F&V, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, 
California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or 
George Kelhart, Technical Advisor, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456; telephone: (202) 720-2491; Fax: (202) 
720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Agreement No. 155 and Order No. 928, both as amended (7 CFR part 928), 
regulating the handling of papayas grown in Hawaii, hereinafter 
referred to as the ``order.'' The marketing agreement and order are 
effective under the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This action is not intended to have retroactive effect. 
This proposal will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
principal place of business, has jurisdiction to review the Secretary's 
ruling on the petition, provided an action is filed not later than 20 
days after the date of the entry of the ruling.
    This proposal invites comments on the reapportionment of grower 
membership on the committee. This rule would increase the number of 
grower members from District 3 (the island and county of Oahu) by one 
member and reduce the number of grower members from District 1 (the 
island and county of Hawaii) by one member. Increased papaya production 
in District 3 and decreased production in District 1 have necessitated 
this proposed grower member reapportionment. While production in 
District 2 (the county of Kauai which consists of the islands of Kauai 
and Niihau; the county of Maui which consists of the islands of Maui, 
Molokai, Lanai, and Kahoolawe; and Kalawao County) also increased in 
recent years, the increase is not significant enough to qualify the 
district for increased grower membership.
    Section 928.20 of the order provides for the establishment of the 
committee to locally administer the terms and provisions of the order. 
The committee is comprised of 13 members, each with an alternate. Of 
the 12 industry members, 9 are growers and 3 are handlers. This section 
also specifies how the grower membership on the committee is 
apportioned.
    Section 928.31, paragraph (o), provides that the duties of the 
committee, with the approval of the Secretary, are to redefine the 
districts into which the production area is divided, to reapportion the 
grower member representation on the committee among the districts, to 
increase or decrease the number of grower and handler members and 
alternates on the committee, and to change the composition of the 
committee by changing the ratio between grower members and handler 
members, including their alternates. Paragraph (o) of Sec. 928.31 
further provides that any such changes shall reflect, insofar as 
practicable, structural

[[Page 49569]]

changes within the papaya industry and shifts in papaya production 
among the districts within the production area.
    Based on this authority, Sec. 932.120 of the order's administrative 
rules and regulations currently provides that seven grower members 
represent District 1, and one grower member each represents Districts 2 
and 3. This apportionment became effective in 1994, when production in 
District 1 accounted for 52,525,000 pounds of fresh papayas, or 93 
percent of the total annual production of fresh papayas of 56,200,000. 
At that time, production in District 2 accounted for 2,735,000 pounds 
or 5 percent of fresh papaya production. Fresh papaya production in 
District 3 accounted for 940,000 pounds or 2 percent of fresh papaya 
production in 1994.
    However, papaya production in District 1 has been declining, in 
part due to the entrenchment of the Papaya Ringspot Virus (PRSV), a 
virulent and debilitating disease which reduces papaya production and 
eventually kills the papaya tree. Although papaya varieties which are 
immune to the virus have been developed and distributed to growers, the 
fresh production in recent years in District 1 has not reached the 
levels previously noted. In fact, production of fresh papayas in 
District 1 has decreased recently from the 1994 high. In the 1999 crop 
year, fresh papaya production in District 1 fell to 25,455,000 pounds, 
or 65 percent of the total fresh papaya production of 39,400,000 
pounds. In the 2000 crop year, production of fresh papayas in District 
1 increased somewhat to 33,950,000 pounds, but was still only 68 
percent of the 2000 crop year total production of 50,250,000.
    Production in District 2 where PRSV is not present, and District 3, 
where PRSV is present but carefully managed, increased significantly in 
1999 and 2000. In the 1999 crop year, production of fresh papayas in 
District 2 increased to 5,680,000 pounds, or 14 percent of the 1999 
total production of 39,400,000 pounds. This compares with only 5 
percent of total production in 1994. Fresh papaya production in 
District 3 in 1999 increased to 21 percent of the 1999 total 
production, or 8,265,000 pounds.
    Data from the 2000 season indicates that District 2 experienced a 
slight decrease in production while District 3 continued to experience 
increased fresh papaya production. During the 2000 crop year, fresh 
papaya production in District 2 declined to 4,785,000 pounds, or 9 
percent of the total 2000 fresh papaya production of 50,250,000 pounds. 
At the same time, fresh papaya production in District 3 increased to 
11,515,000 pounds, or 23 percent of the total 2000 crop year fresh 
papaya production of 50,250,000 pounds.
    Table 1, below, identifies the shifts in fresh papaya production in 
recent years since 1994, and is based upon data provided by the 
National Agricultural Statistics Service (NASS).

                     Table 1.--History of Fresh Production: 1994, 1999, and 2000 (per NASS)
----------------------------------------------------------------------------------------------------------------
                                    1994         Percent        1999         Percent        2000         Percent
----------------------------------------------------------------------------------------------------------------
District 1..................        52,525,000        93        25,455,000        65        33,950,000        68
District 2..................         2,735,000         5         5,680,000        14         4,785,000         9
District 3..................           940,000         2         8,265,000        21        11,515,000        23
                             ------------------          ------------------          ------------------
      Total.................        56,200,000  ........        39,400,000  ........        50,250,000  ........
----------------------------------------------------------------------------------------------------------------

    When reapportionment was recommended to the Secretary in 1994, the 
committee noted that the papaya industry has historically maintained 
equitable representation among handlers and growers. The committee has 
a duty to reapportion membership on the committee based upon shifts in 
production, as specified in Sec. 928.31(o).
    The current proposal, approved by a mail vote of the committee by 
an 8 to 5 vote, reflects the committee's prior history in recommending 
reapportionment of grower membership based upon shifts in fresh papaya 
production within the districts in recent years.
    The recommended number of representatives per district is based 
upon the amount of fresh papaya production each district represents, as 
a percentage of total fresh papaya production (in million pounds). For 
example: In the 1999 crop year, District 1 represented 65 percent of 
the total fresh papaya production for that year. By multiplying 65 
percent times the total of nine grower members, District 1 would be 
entitled to six (5.85 rounded to the nearest whole person) grower 
representatives. By the same method, District 2, with 14 percent of 
total fresh papaya production in 1999, multiplied by nine grower 
members, would be entitled to 1 (1.26 rounded to the nearest whole 
person) grower representatives. District 3, which had 21 percent of 
total fresh papaya production that year, multiplied by nine grower 
members, would be entitled to 2 (1.89 rounded to the nearest whole 
person) grower representatives.
    In the 2000 crop year, District 1 with 68 percent of total fresh 
papaya production, multiplied by nine grower members, would be entitled 
to 6 (6.12 rounded to the nearest whole person) grower representatives; 
District 2, with 9 percent of total fresh papaya production, multiplied 
by nine grower members, would be entitled to 1 (.81 rounded to the 
nearest whole person) grower representatives; and District 3, with 23 
percent of total fresh papaya production, multiplied by nine grower 
members, would be entitled to 2 (2.07 rounded to the nearest whole 
person) grower representatives.
    Table 2, below, reflects the recommended reapportionment based upon 
percentages of total volume represented by each grower member for the 
1999 and 2000 crop years.

                Table 2.--Representation by District Based on 1999 and 2000 Crop Year Statistics
----------------------------------------------------------------------------------------------------------------
                                                                                                      Number of
                                                              Percentage            Total               Grower
                                                               of Fresh     X       Grower      =      Members/
                                                              Production           Members             District
----------------------------------------------------------------------------------------------------------------
1999 Crop Year:
    District 1.............................................          65%  .....            9  .....     5.85 (6)
    District 2.............................................          14%  .....            9  .....     1.26 (1)

[[Page 49570]]

 
    District 3.............................................          21%  .....            9  .....     1.89 (2)
2000 Crop Year:
    District 1.............................................          68%  .....            9  .....     6.12 (6)
    District 2.............................................           9%  .....            9  .....      .81 (1)
    District 3.............................................          23%  .....            9  .....     2.07 (2)
----------------------------------------------------------------------------------------------------------------

Initial 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 proposed rule on small entities. Accordingly, 
AMS has prepared this initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 60 handlers of papayas in the production 
area and approximately 400 producers subject to regulation under the 
marketing order. Small agricultural service firms are defined as those 
whose annual receipts are less than $5,000,000, and small agricultural 
producers are defined by the Small Business Administration (13 CFR 
121.201) as those having annual receipts less than $750,000.
    Based on a reported current average f.o.b. price of $.65 per pound 
of papayas, a handler would have to ship in excess of 7.69 million 
pounds of papayas to have annual receipts of $5,000,000. Based on a 
reported current average grower price of $0.25 per pound and average 
annual industry shipments of 40 million pounds since 1996, total grower 
revenues would be $10 million. Average annual grower revenue would, 
therefore, be $25,000. Thus, the majority of handlers and producers of 
papayas may be classified as small entities, excluding receipts from 
other sources.
    This rule would reapportion grower membership on committee by 
decreasing the number of grower members who represent District 1 by 
one, and increasing the number of grower members who represent District 
3 by one. Such reapportionment is authorized in Sec. 928.31, paragraph 
(o) of the order. Section 928.120 of the order's administrative rules 
and regulations provides the current apportionment of grower and 
handler representation on the committee, as amended in 1994.
    Shifts in production within the three districts have occurred in 
recent years, prompting a review by the committee, which culminated in 
this proposal recommended by the committee on a mail vote of 8 in favor 
and 5 opposed. The five members who opposed the recommendation 
represent District 1, but not all of the District 1 members opposed the 
recommendation. Two District 1 members joined the majority and voted in 
favor of the reapportionment.
    As evidenced by the table presented earlier, fresh papaya 
production in District 1 has decreased since 1994 from 93 percent of 
total fresh papaya production to 68 percent of total fresh papaya 
production in 2000; and fresh papaya production in District 3 has 
increased since 1994 from 2 percent of fresh papaya production to 23 
percent of total fresh papaya production in 2000. As a result of this 
shift in fresh papaya production, the committee recommended that grower 
membership on the committee be reduced by one grower member in District 
1 and increased by one grower member in District 3.
    This proposed rule is expected to provide more equitable 
representation on the committee that is more reflective of current 
production levels in the various production districts.
    An alternative to this recommendation would be to make no changes 
in grower member representation. Such an alternative would be 
counterproductive in this instance, however, since the committee has 
the authority and duty to ensure equitable representation of growers 
and handlers based upon shifts in papaya production. The recommended 
reapportionment is supported by the NASS data on recent trends in fresh 
papaya production.
    This proposed rule would not impose any additional reporting or 
recordkeeping requirements on either small or large entities. As with 
all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, the 
Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    While the committee did not meet to discuss this issue in public, 
it is the Department's view that such reapportionment would be 
appropriate since NASS statistics provide adequate, third-party 
documentation of shifts in fresh papaya production. A mail vote was 
deemed acceptable in this matter since only one issue was brought to 
the committee for consideration. Had any of the committee members 
voting by mail requested an assembled meeting in which to vote on this 
issue, the committee would have convened such a meeting. In addition, 
interested persons are invited to submit information on the regulatory 
and informational impacts of this action on small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following website: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate because 
current representation on the committee is not reflective of fresh 
papaya production in each district, and District 3 would be permitted 
another grower member position under this proposal. To ensure equitable 
grower member representation, this proposal should be in effect as soon 
as possible. It is important that the committee operate at full 
strength with the appropriate grower member representation. Any written 
comments timely received will be considered before a final 
determination is made on this matter.

[[Page 49571]]

List of Subjects in 7 CFR Part 928

    Marketing agreements, Papayas, Reporting and recordkeeping 
requirements.
    For the reasons set forth in the preamble, 7 CFR part 928 is 
proposed to be amended as follows:

PART 928--PAPAYAS GROWN IN HAWAII

    1. The authority citation for 7 CFR part 928 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Section 928.120 is revised to read as follows:


Sec. 928.120  Committee reapportionment.

    The Papaya Administrative Committee shall consist of 13 members and 
alternate members. Nine of the members shall represent growers, and 
three shall represent handlers. Six grower members and their alternates 
shall represent District 1, one grower member and alternate shall 
represent District 2, and two grower members and alternates shall 
represent District 3. No grower organization shall have more than two 
members on the committee. The three handler members shall be nominated 
from the production area at large. No handler organization is permitted 
to have more than one handler member on the committee. One voting 
public member and alternate shall also be included on the committee. 
The eligibility requirements and nomination procedures for the public 
member and alternate are specified in Sec. 928.122.

    Dated: September 21, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-24316 Filed 9-27-01; 8:45 am]
BILLING CODE 3410-02-P