Papayas Grown in Hawaii; Proposed Rule to Change the Membership of the Papaya Administrative Committee

SUMMARY: This proposed rule would change the membership of the Papaya

Administrative Committee (committee), the agency responsible for local

administration of the Hawaiian papaya marketing order. This proposal

would increase the number of grower members on the committee from six

to nine and reduce the number of handler members from six to three. The

number of growers in the industry has increased in recent years, during

the same period the number of handlers has remained constant.

DATES: Comments must be received by October 3, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposed rule. Comments must be sent in triplicate to

the Docket Clerk, Marketing Order Administration Branch, F&V, AMS,

USDA, Room 2523-S, P.O. Box 96456, Washington, DC 20090-6456; FAX: 202-

720-5698. Comments should reference this 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.

FOR FURTHER INFORMATION CONTACT: Charles L. Rush, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2526-S, Washington, DC 20090-6456; telephone (202) 690-

3670; or Martin J. Engeler, Assistant Officer-In-Charge, California

Marketing Field Office, Fruit and Vegetable Division, AMS, USDA, 2202

Monterey Street, Suite 102B, Fresno, California 93721; telephone (209)

487-5901.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing

Order No. 928 (7 CFR Part 928), as amended, regulating the handling of

papayas grown in Hawaii, hereinafter referred to as the order. This

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 (Department) is issuing this rule in

conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This rule is not intended to have retroactive

effect. This rule will not preempt any State or local laws,

regulations, or policies, unless they present an irreconcilable

conflict with this rule.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under section 608c(15)(A) of the

Act, any handler subject to an order may file with the Secretary a

petition stating that the order, any provision of the order, or any

obligation imposed in connection with the order is not in accordance

with law and requesting a modification of the order or an exemption

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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after the date of the entry of the ruling.

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (RFA), the Administrator of the Agricultural Marketing

Service (AMS) has considered the impact of this rule on small entities.

The purpose of the RFA is to fit regulatory rules to the scale of

business subject to such rules 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 120 papaya handlers subject to regulation

under the marketing order covering fresh papayas grown in Hawaii, and

approximately 400 producers of papayas in Hawaii. Small agricultural

producers have been defined by the Small Business Administration [13

CFR 121.601] as those having annual receipts of less than $500,000, and

small agricultural service firms as those whose annual receipts are

less than $5,000,000. A majority of these handlers and producers may be

classified as small entities.

Pursuant to Sec. 928.120, the committee currently consists of 13

members. Each member has an alternate. Six members are growers, six are

handlers, and one is a public member. The six handler members and

alternates are nominated from the production area at large. Grower

membership on the committee is apportioned among three districts.

District 1 (the Island of Hawaii) is represented by four members and

alternates, and District 2 (the Islands of Kauai, Niihau, Maui,

Molakai, Lanai, Kahoolawe; and Kalawao county), and District 3 (the

Island of Oahu) by one member and alternate each. Any grower

organization is limited to two members on the committee. Any handler

organization is limited to one member on the committee.

Section 928.20 also allows the number of grower and handler members

and alternate members on the committee and the composition of the

committee between growers and handlers to be changed as provided in

Sec. 928.31(o). Paragraph (o) of Sec. 928.31 also authorizes the

committee, with the approval of the Secretary, to redefine the

districts into which the production area is divided, reapportion

membership on the committee. Any such changes are required to reflect,

insofar as practicable, structural changes within the industry and

shifts in papaya production within the production area.

This rule would change the composition of the committee by

increasing grower representation on the committee from six grower

members to nine and reducing handler representation from six members to

three. This change was recommended by the committee on April 22, 1994,

by a vote of 7 in favor, 3 opposed, and 2 abstentions.

The papaya industry has historically demonstrated a policy of

maintaining equitable representation among handlers and growers. In

1989, committee membership was changed by allocating three grower

member positions from District 1 to handlers in the State of Hawaii.

This resulted in an increase from three to six handler members and a

decrease in grower members from District 1 from seven to four. The

committee indicated that the number of growers in the industry has

increased from 325 to 400 since 1989, while the number of handlers has

remained constant. The committee contends that these factors support

their recommendation to change committee membership. This action is

intended to provide increased grower representation on the committee

consistent with the increased number of growers. This rule would not

impose any additional costs on growers or handlers.

Members supporting this change stated that the marketing order is

designed to primarily benefit growers and for that reason growers

should have a majority on the committee. Members supporting the

recommendation also stated that this change would increase growers'

influence in matters concerning amendments to the marketing order, and

market research and development and promotion activities. The majority

of that increase occurred in District 1. Members opposed to the change

in the current committee membership stated that the marketing order

should benefit the entire industry, and believe the current composition

of the committee provides a good balance for the industry.

The committee indicated that the increase in the number of growers

producing papayas in District 1, justified increasing from four to

seven the number of growers representing District 1 on the committee.

Committee members supporting this change contend that the vast majority

of growers and the highest level of papaya production are located in

District 1. District 1 is expected to produce 55.6 million pounds

during the 1993-94 season. Over the last four years District 1 has had

an average annual production of 54.1 million pounds of papayas. For the

same period District 2 has an average production of 760,000 pounds, and

District 3 has an average production of 1,020,000 pounds of papayas.

Based on the available information, the Administrator of the AMS

has determined that this proposed rule would not have a significant

economic impact on a substantial number of small entities.

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 [Amended]

The Papaya Administrative Committee shall consist of 13 members and

alternate members. Nine of the members shall represent growers, and

three shall represent handlers. Seven grower members and their

alternates shall represent District 1, one grower member and alternate

shall represent District 2, and one grower member and alternate 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: August 29, 1994.

Martha B. Ransom,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-21714 Filed 9-1-94; 8:45 am]

BILLING CODE 3410-02-P