[Federal Register Volume 67, Number 150 (Monday, August 5, 2002)]
[Rules and Regulations]
[Pages 50581-50582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19671]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 150 / Monday, August 5, 2002 / Rules 
and Regulations  

[[Page 50581]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 928

[Docket No. FV02-928-3 FR]


Papayas Grown in Hawaii; Suspension of Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule suspends the reporting and assessment 
regulations in effect under the Hawaii papaya marketing order. The 
Department of Agriculture has determined that the order should be 
terminated due to the results of a recently held referendum in which 
growers indicated they did not want the program to continue. 
Termination of the order must be delayed until after a 60-day 
Congressional notification period. Because the 2002 fiscal year has 
begun, suspension of reporting and assessment requirements is needed so 
that papaya handlers are not subject to regulation during that year.

EFFECTIVE DATE: August 1, 2002.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, 
California Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, 
suite 102B, Fresno, California 93721; telephone (559) 487-5901, Fax 
(559) 487-5906; or Anne Dec, Marketing Order Administration Branch, 
Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW 
STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: 
(202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This action is being taken under the 
provisions of section 8c(16)(A) of the Agricultural Marketing Agreement 
Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as 
the ``Act,'' and Secs. 928.53(b) and 928.64(b) of Marketing Order No. 
928, regulating the handling of papayas grown in Hawaii, hereinafter 
referred to as the ``order.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This final 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 8c(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.
    The order has been in effect since 1971. It authorizes the 
establishment of grade, size, quality, pack, and container 
requirements, although such requirements are not currently in effect. 
The order also authorizes production and marketing research, market 
development, and paid advertising for Hawaii papayas. The program is 
funded by assessments imposed on papaya handlers.
    This rule suspends the assessment and reporting requirements 
currently prescribed under the order.
    Section 928.64(e) of the order specifies that continuance referenda 
must be conducted among papaya producers every sixth year before 
October 1. Therefore, during the period from May 6 to May 31, 2002, 
USDA conducted a referendum among papaya growers to determine if they 
favored continuation of their program. The referendum order provided 
that USDA would consider terminating the provisions of the order if 
less than two-thirds of the number of growers voting and growers of 
less than two-thirds of the papaya volume represented in the referendum 
favored continuance.
    Ballots were mailed to 462 known papaya growers in Hawaii. By the 
close of the voting period, 55 valid votes had been cast. The results 
show that 49 percent of the growers voting, who produced 21 percent of 
the volume represented in the referendum, favored continuation of the 
program. The order failed to pass both criteria for continuance, 
demonstrating a lack of producer support needed to carry out the 
objectives of the Act. Thus, it has been determined that the provisions 
of the order no longer tend to effectuate the declared policy of the 
Act.
    Therefore, pursuant to section 8c(16)(A) of the Act and Sec. 928.64 
of the order, it has been found that the order provisions should be 
terminated. Section 8c(16)(A) of the Act requires USDA to notify 
Congress at least 60 days before terminating a Federal marketing order 
program. Congress has been so notified.
    The 2002-03 fiscal year for Hawaii papayas began July 1. Because 
implementation of any regulatory requirements during the 2002-03 fiscal 
year would be inconsistent with USDA's decision to terminate the order, 
this action suspends the assessment and reporting requirements in 
effect under the order. Papayas shipped during the month of July would 
have to be reported to the Papaya Administrative Committee (committee), 
the agency established to locally administer the program, by August 15. 
Based on those handler reports, the committee would bill handlers for 
assessments owed. Suspending these requirements results in no 
regulatory requirements imposed

[[Page 50582]]

on papayas handled during the 2002-03 fiscal year.
    It is hereby determined that the reporting and assessment 
requirements specified in Secs. 928.160 and 928.226, respectively, do 
not effectuate the declared policy of the Act and should not be applied 
during the 2002-03 and subsequent seasons. Therefore, these sections 
are suspended effective August 1. Once the order provisions pertaining 
to papayas grown in Hawaii have been terminated, these and other 
regulations under the order will no longer be in effect.

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 those 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 400 producers of papayas in the production 
area and approximately 60 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined as those 
having annual receipts of less than $750,000, and small agricultural 
service firms, which include handlers, are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts of less than $5,000,000.
    Based on a reported current average f.o.b. price for fresh papayas 
of $0.65 per pound, a handler would have to ship in excess of 7.69 
million pounds to have annual receipts of $5 million. Based on a 
reported current average grower price of $0.25 per pound, and average 
annual industry shipments of 40 million pounds since 1996, annual 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 final rule suspends the reporting and assessment requirements 
specified in Secs. 928.160 and 928.226, respectively. This is 
consistent with USDA's decision to terminate the provisions of the 
Hawaii papaya marketing order. The order is being terminated because in 
a recently held referendum, papaya producers failed to support 
continuation of the program.
    This action eliminates the cost of assessments. Currently, handlers 
are required to pay an assessment rate of $0.008 per pound handled.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection requirements being suspended by 
this rule were approved previously by the Office of Management and 
Budget (OMB) and assigned OMB No. 0581-0189. Suspension of the 
reporting requirements specified in Sec. 928.160 is expected to reduce 
the total annual reporting burden on Hawaii papaya handlers by 720 
hours (60 handlers x 12 reports per year x 1 hour per report).
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this final rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 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 matter presented, including the 
results of a recently held producer referendum, it is hereby found that 
the regulations in effect under the papaya marketing order do not tend 
to effectuate the declared policy of the Act and, therefore, are being 
suspended.
    It is further found that it is impracticable, unnecessary, and 
contrary to the public interest to give preliminary notice and that 
good cause exists for not postponing the effective date of this rule 
until 30 days after publication in the Federal Register (5 U.S.C. 553) 
because: (1) This action relieves restrictions on handlers by lifting 
reporting and assessment requirements; (2) this rule should apply to 
all papayas handled during the 2002-03 fiscal year, which began July 1; 
(3) handlers were given notice of this action in a press release issued 
by USDA; and (4) no useful purpose would be served by delaying the 
effective date.

List of Subjects in 7 CFR Part 928

    Marketing agreements, Papayas, Reporting and recordkeeping 
requirements.
    For the reasons set forth above, 7 CFR part 928 is 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. In part 928, Secs. 928.160 and 928.226 are suspended.

    Dated: July 31, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-19671 Filed 8-2-02; 8:45 am]
BILLING CODE 3410-02-P