Celery Grown in Florida; Proposed Termination of Marketing Order No. 967

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 967

[Docket No. FV98-967-1 PR]

Celery Grown in Florida; Proposed Termination of Marketing Order

No. 967

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposal invites comments on the termination of the

Federal marketing order regulating the handling of celery grown in

Florida (order) and the rules and regulations issued thereunder. The

Florida celery industry has not operated under the order since its

provisions were suspended January 12, 1995. The celery industry has

experienced a loss of market share, a significant reduction in the

number of producers and handlers has diminished the need for regulating

Florida celery, and there is no industry support for reactivating the

order. Therefore, there is no need to continue this order.

DATES: Comments must be received by December 8, 1998.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposal. Comments must be sent to the Docket Clerk,

Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456, Fax: (202) 205-6632; 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.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Southeast Marketing

Field Office, AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883-

2276; telephone (941) 299-4770, Fax: (941) 299-5169; or Anne M. Dec,

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) 205-6632. Small businesses may

request information on compliance 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) 205-6632.

SUPPLEMENTARY INFORMATION: This proposal is governed by provisions of

Sec. 608(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

Sec. 967.85 of the order.

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 rule 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 proposed rule would terminate the order regulating the

handling of celery grown in Florida. Sections 967.85 and 967.86 of the

order contain the authority and procedures for termination.

The order was initially established in 1965 to help the industry

solve specific marketing problems and maintain orderly marketing

conditions. It was the responsibility of the Florida Celery Committee

(committee), the agency established for local administration of the

marketing order, to periodically investigate and assemble data on the

growing, harvesting, shipping, and marketing conditions of Florida

celery. The committee tried to achieve orderly marketing and improve

acceptance of Florida celery through the establishment of volume

regulations and promotion activities.

The Florida celery industry has not operated under the marketing

order for three years. The order and all of its accompanying rules and

regulations were suspended January 12, 1995, through December 31, 1997

(60 FR 2873). Regulations have not been applied under the order since

that time, and no committee has been appointed since then.

In 1965, when the marketing order was issued, there were over 41

producers of Florida celery. The earliest handling figures available

indicate that in 1983 there were 11 handlers. As of the date of

suspension of the order (January 12, 1995), there were six handlers of

Florida celery who were subject to regulation under the marketing order

and five celery producers within the production area. Currently, there

is one producer who is also a handler.

When the order was suspended, all of the committee members and

their alternates were named as trustees to oversee the administrative

affairs of the order. The Department attempted to contact as many of

these trustees as it could with respect to the need for reinstating the

marketing order. All of the individuals contacted (10 of the 18

trustees) were in favor of terminating the order. We believe that there

is no justification for continuing the current order.

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 initial regulatory flexibility analysis.

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

[[Page 54383]]

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 is one handler of Florida celery who would be subject to

regulation under the marketing order. This handler is also a producer

within the production area. Small agricultural service firms have been

defined by the Small Business Administration (13 CFR 121.601) as those

having annual receipts of less than $5,000,000, and small agricultural

producers are defined as those having annual receipts of less than

$500,000. The Florida celery producer-handler may be classified as a

small entity.

This proposed rule would terminate the order regulating the

handling of celery grown in Florida. The order and its accompanying

rules and regulations were suspended on January 12, 1995. No

regulations have been implemented since then, and there is no

indication that such regulations will again be needed.

The industry has been operating without a marketing order since its

suspension. Reestablishing the order would mean additional cost to the

industry stemming from assessments to maintain the order (the last

assessment was $0.01 per crate) and any associated costs generated by

regulation. By not reinstating the marketing order, the industry would

benefit from avoiding these costs. Regulatory authorities that would be

terminated include authority to implement grade, size, container, and

inspection requirements and provisions for research and development and

volume regulation. Because the industry has been operating without an

order for over three years, the termination of the order would have no

noticeable effect on either small or large operations.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.

Chapter 35), the information collection requirements under the order

were approved by the Office of Management and Budget (OMB) and assigned

OMB No. 0581-0145. When the order was suspended on January 12, 1995,

these information collection requirements were also suspended. When the

order is terminated, these requirements will be eliminated. There is

one handler remaining under the order with an estimated burden of 9.05

hours.

The Department has not identified any relevant Federal rules that

duplicate, overlap, or conflict with this proposed rule.

The Department attempted to solicit as much industry input on this

decision as possible. In addition, this action provides the opportunity

for all interested persons to comment on this proposal.

The Department believes that conducting a termination referendum

would merely reaffirm the Florida celery industry's continued lack of

interest in reactivating the marketing order and that conducting such a

referendum would be wasteful of Departmental and public resources.

Therefore, pursuant to Sec. 608c(16)(A) of the Act and Sec. 967.85

of the order, the Department is considering the termination of

Marketing Order No. 967, covering celery grown in Florida. If the

Secretary decides to terminate the order, trustees would be appointed

to continue in the capacity of concluding and liquidating the affairs

of the former committee.

Section 608c(16)(A) of the Act requires the Secretary to notify

Congress 60 days in advance of the termination of a Federal marketing

order. Congress will be so notified upon publication of this proposed

termination.

A 60-day comment period is provided to allow interested persons to

respond to this proposal. All written comments timely received will be

considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 967

Celery, Marketing agreements, Reporting and recordkeeping

requirements.

PART 967--[REMOVED]

For the reasons set forth in the preamble, and under authority of 7

U.S.C. 601-674, 7 CFR part 967 is proposed to be removed.

Dated: October 2, 1998.

Enrique E. Figueroa,

Administrator, Agricultural Marketing Service.

[FR Doc. 98-27178 Filed 10-8-98; 8:45 am]

BILLING CODE 3410-02-P