This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

70279

Vol. 65, No. 226

Wednesday, November 22, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 928

[Docket No. FV00–928–1 FR]

Papayas Grown in Hawaii; Removal of

Suspension Regarding Grade,

Inspection, and Related Reporting

Requirements

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule removes the

suspension of grade, inspection,

inspection waiver procedure, and

related exempt shipment reporting

requirements under the marketing order

regulating papayas grown in Hawaii and

makes those requirements applicable for

one year. These requirements were

suspended in July of 1994 because the

industry was exploring alternative

methods of quality control to reduce

costs. The alternative methods have not

been as successful as the industry had

hoped. This action is expected to

facilitate the shipment of satisfactory

quality papayas and program

compliance. This rule also amends

§ 928.160 regarding reporting

requirements to require handlers to add

the inspection certificate number on

PAC Form 1, Papaya Utilization, for one

year.

DATES: Effective January 2, 2001. The

incorporation by reference of certain

publications in this rule is approved by

the Director of the Office of the Federal

Register as of January 2, 2001.

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 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) 720–5698.

Small businesses may request

information on compliance with this

regulation by contacting Jay Guerber,

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)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing

Agreement No. 155 and Marketing

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 final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This rule is not intended

to have retroactive effect. This action

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.

Pursuant to a recommendation of the

Papaya Administrative Committee

(committee or PAC), this final rule

removes the suspension of three

sections of the order’s rules and

regulations regarding grade and

inspection (§ 928.313), maturity

shipment exemptions (§ 928.152), and

inspection waiver procedures

(§ 928.150) and makes these regulations

applicable until January 2, 2002. This

final rule also amends § 928.160

regarding reporting requirements to

require handlers to add the inspection

certificate number on PAC Form 1,

Papaya Utilization during the period of

regulation. The removal of the

suspension of the grade requirements in

§ 928.313 will require handlers of

papayas to adhere to the minimum

quality requirements that were in effect

prior to their suspension on July 1,

1994, except that a 5 percent tolerance

for immature papayas in Hawaii No. 1

will be removed, as recommended by

the committee.

An interim final rule implementing

these suspensions was published in the

Federal Register on July 27, 1994 (59 FR

38102). A final rule finalizing the

interim final rule was published in the

Federal Register on October 18, 1994,

(59 FR 52409).

Removal of the suspension of

minimum quality requirements will

require handlers to obtain inspection

through the Federal or Federal-State

Inspection Service (inspection service)

prior to shipment. Removal of the

suspension of the maturity exemption

and related reporting requirements in

§ 928.152 will require handlers

interested in becoming approved

handlers of immature papayas to apply

to the committee for approval, and to

report handling of immature papayas.

Immature papayas are used in a popular

dish called green papaya salad and as a

vegetable substitute in recipes. In

addition, amendment of § 928.160 will

require handlers to include the number

of the inspection certificate issued by

the inspection service on each PAC

Form 1, Utilization Report, filed with

the committee. Finally, removal of the

suspension of the inspection waiver

procedures in § 928.150 will allow

handlers to ship papayas without

inspection under certain conditions

when it is not practicable for the

70280 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

inspection service to provide such

inspection.

This rule was recommended by the

committee at its meeting on February

18, 1999, by a vote of seven in favor,

two opposed, and one abstention. The

two dissenters believed that the cost of

mandatory inspection continues to

outweigh its benefits to the industry,

that there are other less expensive

methods of achieving quality control,

and that voluntary quality control

should be continued. Those in favor

believed that voluntary controls have

not been effective, and mandatory

controls were needed to ensure that

buyers receive the quality they desire

and help the industry compete more

effectively in the marketplace.

Section 928.52 of the papaya

marketing order authorizes the

establishment of grade, size, quality,

maturity, and pack and container

regulations for shipments of papayas.

Section 928.53 allows for the

modification, suspension, or

termination of such regulations when

warranted. Section 928.55 provides that

whenever papayas are regulated

pursuant to §§ 928.52 or 928.53, such

papayas must be inspected by the

inspection service and certified as

meeting the applicable requirements.

The cost of inspection and certification

is borne by handlers. Section 928.54

authorizes regulation exemptions when

shipping papayas for commercial

processing, relief agencies, or charitable

institutions. In addition, the Secretary

may relieve from any or all

requirements under or established

pursuant to § 928.41, 928.52, 928.53,

and 928.55, the handling of papayas in

such minimum quantities, in such types

of shipments, or for such specified

purposes (including shipments to

facilitate the conduct of marketing

research and development projects

established pursuant to § 928.45) as the

committee, with the approval of the

Secretary, may prescribe. Section 928.60

of the papaya marketing order

authorizes handler reporting

requirements.

In 1994, §§ 928.150, 928.152, and

928.313 of the order’s rules and

regulations were suspended. Section

928.313 established minimum grade

requirements for shipments of papayas

prior to its suspension. This section

required that papayas grade at least

Hawaii No. 1, except that not more than

5 percent of the fruit may be immature.

Also, the weight requirements specified

in the Hawaiian grade standards did not

apply. This final rule removes the

suspension of these regulations with

some changes. First, paragraph (a) of

§ 928.313 will be amended to remove

the 5 percent tolerance for immature

fruit. Second, paragraph (b) of that

section will be amended to correct the

information regarding the name,

address, and telephone number of the

Department contact to obtain copies of

the Hawaii papaya quality standards

which are incorporated by reference.

The standards for Hawaii-grown papaya

are dated August 6, 1990, and replace

standards dated May 29, 1981,

previously incorporated.

As a result of removing the

suspension of the grade regulations

issued pursuant to § 928.52, mandatory

inspection will also be required, except

where specifically exempted.

Prior to its suspension, § 928.152 of

the order’s rules and regulations defined

immature papayas and established the

procedures for handling immature

papayas exempt from regulation. This

section also required handlers to apply

to the PAC to become approved

handlers of immature papayas and

report the handling of immature

papayas. This rule removes the

suspension of these regulations in their

entirety for 12 months, thus, affording

approved handlers the opportunity to

handle immature papayas, exempt from

minimum grade, size, quality, and

maturity regulations. PAC Form 7

(Application to be an Approved Handler

of Immature Papayas) and PAC Form

7(c) (Maturity Exemption Report) will

also be reinstated so the committee can

approve applications of handlers who

would like to handle immature papayas.

Removal of the suspension will require

such handlers to report their handling of

immature papayas. Handlers pay

assessments on such shipments.

Section 928.150 established the

procedures for granting inspection

waivers under certain conditions prior

to its suspension. This rule removes the

suspension of § 928.150 for one year,

giving the inspection service the

flexibility to issue inspection waivers to

handlers when it is impracticable to

provide inspection services during the

period of regulation. For example, a

handler might be in a remote location

and the inspection service might not be

able to provide an inspector to perform

the inspection at the time and place

requested.

Section 928.160 was amended in 1994

as a result of the suspension of

§§ 928.150, 928.152, and 928.313.

Because the quality requirements, and,

thus, the requirement for mandatory

inspection were suspended, § 928.160

was amended to remove the

requirement to include the inspection

certificate number on the PAC Form 1,

Utilization Report. Since the quality and

inspection requirements will be

reinstituted, a change will be necessary

in § 928.160 to require the inspection

certificate number to be reported by the

handler on the PAC Form 1. PAC Form

1 has been revised to include this

additional information collection.

Minimum grade and inspection

requirements were initially established

to assure that only acceptable quality

fruit entered fresh market channels,

thereby ensuring consumer satisfaction,

increasing sales, and improving returns

to papaya producers. The reporting

requirements were established to

authorize the committee to allow

approved handlers to handle immature

papayas, and to aid the committee in

assessment billings and program

compliance.

In committee discussions on the

suspension of grade, inspection, and

reporting requirements in 1994,

members who supported the suspension

advised that the papaya industry was

committed to instituting alternative

quality assurance procedures in the

absence of mandatory inspection. This

was to be achieved by handlers

providing financial incentives to

producers to harvest and deliver only

high quality fruit. Such a program was

to be arranged with handlers by the

newly formed producers’ bargaining

cooperative. It was anticipated that this

program would provide incentives for

growers to deliver high-quality fruit to

handlers. However, the producer’s

bargaining cooperative was not as

successful as hoped in implementing

this program. To date, the industry has

not instituted any effective alternative

means of quality control. As a result, the

overall quality of papayas shipped from

Hawaii has declined and the industry

has lost market share.

Most committee members also

believed that the elimination of

inspection requirements would increase

producer returns because handlers

would pass on to producers the savings

they realized when inspection costs

were eliminated. This has happened to

a limited extent. Finally, the committee

hoped that buyers of fresh papayas

would encourage handlers to continue

to ship high-quality fruit by paying

premium prices for higher-quality fruit.

As handlers became more aware of the

price differentials between various

quality levels, the committee believed

that competition among handlers would

ensure shipments of good quality fruit.

This has not occurred as the committee

had hoped.

At the time the suspension was

recommended, the industry was

suffering from an infestation of Papaya

Ringspot Virus (PRSV), a debilitating

disease that attacks papaya trees,

Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70281

eventually killing them. Production

from the Island of Hawaii, the primary

growing region, declined substantially,

and the papayas produced from infected

trees were of lower quality.

Since 1994, the committee has

reported deteriorating wholesale buyer

and consumer confidence with

Hawaiian papayas, resulting in lost

market share. The condition of poor

quality papayas often deteriorates

further during shipment, frequently

requiring buyers to discard some fruit

and repack the rest. This has resulted in

financial losses for some buyers,

decreased buyer confidence, and

reduced market opportunities for

handlers of Hawaii papayas. As a result,

competing supplies from the

Philippines, Brazil, and Mexico have

made inroads into existing Hawaii

papaya markets.

This is of great concern to the

committee, especially because the

domestic production from two PRSVresistant papaya varieties is increasing

significantly, and is expected to

continue. The committee would like to

regain the confidence of buyers by

shipping high-quality Hawaii papayas.

It believes that mandatory quality

control is needed to ensure buyers the

quality they prefer. Removing the

suspension of the grade, inspection, and

reporting requirements in place prior to

July 1, 1994, is anticipated to help the

industry achieve its goals and compete

more effectively in the marketplace.

During its deliberations on the

removal of the suspension of grade,

inspection, and reporting requirements

on February 18, 1999, the committee

discussed the current state of the

industry and what actions the

committee could take to enhance the

quality of shipments, improve grower

and handler returns, increase wholesale

buyer and consumer confidence, and

regain lost market share. The committee

decided that to successfully market the

increasing production from the PRSVresistant papaya varieties, the industry

must reestablish a quality image for

Hawaii papayas among buyers and

consumers. It would be

counterproductive, they noted, to utilize

assessment dollars promoting a product

which was not of acceptable quality.

In addition, the committee noted that

reinstituting mandatory inspection will

augment information available to the

committee on assessments owed by

handlers. Once inspections begin, a

copy of each inspection certificate will

be provided to the committee staff by

the inspection service. This third-party

information will permit the committee

staff to have accurate and timely data

upon which to bill each handler for

papayas handled. Currently, the

committee staff utilizes information

gathered from transshippers (air freight

and shipping companies) to augment

and confirm information provided by

handler’s reports for assessment

collection compliance purposes under

§ 928.31(n). This information is

obtained at a significant cost of

committee time and resources. While

information from transshippers will

continue to be used as a random check,

data provided from the inspection

certificates will be the primary source of

third-party information for assessment

billings by the committee staff.

Inspection costs to handlers will

result from this action. Inspection costs

incurred will total $24.24 per hour for

on site inspections and mileage travel

costs of 37 cents a mile round-trip from

the office to the processing plant or

handler’s premises. For a trip less than

10 minutes or 7 miles, no travel time

cost is charged, just the mileage cost.

For a trip taking 10 or more minutes, or

covering 7 or more miles, the travel time

cost is based on the $24.24 hourly rate.

The committee members who

opposed the recommendation believe

that the cost of inspection will be

passed on to producers, lowering overall

producer returns, and that the benefits

of mandatory quality control will not

outweigh the costs. In addition, they

believe that voluntary quality control

should be given more time to work.

However, most committee members

favored the recommendation, as they

believe the alternatives attempted have

not been successful, and that prompt

action is imperative to assure the longterm viability of the Hawaii papaya

industry.

The committee’s recommendation

resulted from the efforts of a task force

assigned by the committee chairman in

1998. The task force reviewed the

current marketing and quality

conditions affecting the Hawaii papaya

industry for several months, and

recommended to the committee removal

of the suspension of quality controlrelated requirements.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA),

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. 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 have been defined by the

Small Business Administration (13 CFR

121.201) as those having annual receipts

less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000.

Based on a reported average f.o.b.

price of $1.30 per pound of papayas, a

handler would have to ship in excess of

3.85 million pounds of papayas to have

annual receipts of $5,000,000. Last year,

two handlers each shipped in excess of

3.85 million pounds of papayas, and,

therefore, would be considered large

businesses. The remaining handlers are

considered to be small businesses under

SBA’s definition.

Based on a reported average grower

price of $0.45 per pound and industry

shipments of 36 million pounds, total

grower revenues would be $16.2

million. Average grower revenue would,

thus, be $40,500. Based on the

foregoing, the majority of handlers and

producers of papayas would be

classified as small entities.

This rule removes the suspension of

grade, inspection, and related reporting

requirements under the order’s rules

and regulations. As a result of removing

the suspension, §§ 928.150, 928.152,

and 928.313 will be reinstated. This rule

also amends these sections to make the

requirements in these sections

applicable for one year; and § 928.160

will be amended to include the

requirement that inspection certificate

numbers be added to the utilization

reports filed by handlers during the time

mandatory inspection is required.

Section 928.313 will also be amended

to remove the 5 percent tolerance for

immature papayas since the committee

believes that the quality of papayas

shipped into fresh market channels

must be improved. In their

recommendation to remove the 5

percent tolerance for immature papayas

from the reinstated rules and

regulations, the committee believed that

they were tightening the quality

requirements by utilizing the quality

requirements in effect under the Hawaii

Department of Agriculture Standards for

Fruits and Vegetables (Hawaii

Standards).

Under the Hawaii Standards,

tolerances are applied based upon the

number of samples and number of fruit

in the sample that contains defects.

70282 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

Immaturity is considered a serious

defect under the Hawaii Standards for

Papaya. According to the Hawaii

inspection service, in the routine

application of the number of defects in

a papaya sample, the average tolerance

applied would generally be less than 5

percent, which would result in the

increased papaya quality envisioned by

the committee.

Section 928.313 will also be amended

to correct the name and address of

Department references for obtaining

copies of the Hawaii papaya quality

standards, which are incorporated by

reference. References to Department

contacts are outdated, as is the mailing

address listed in that section. The

quality standards for Hawaii-grown

papayas have been revised as of August

6, 1990, and will replace the standards

dated May 29, 1981, currently

incorporated by reference.

During its deliberations, the

committee discussed the current state of

the industry with the advent of the two

PRSV-resistant papaya varieties.

Production is increasing and overall

production levels of Hawaii papayas are

expected to reach pre-1994 levels by the

2001–2002 fiscal year, and then

continue growing. Such increasing

production could reduce handler and

producer returns if the quality of

papayas shipped is not improved.

Since the suspension of the grade and

inspection requirements in 1994, the

quality of Hawaii papayas in the

marketplace has been deteriorating. The

condition of poor quality fruit has often

deteriorated further during shipment,

requiring buyers to discard some fruit

and repack the remaining fruit. This has

resulted in financial losses for some

buyers and caused decreased buyer

confidence in Hawaii papaya quality,

resulting in reduced market share.

With the new varieties, the industry is

now in a position to provide ample

supplies of good quality fruit, and

restore wholesale buyer and consumer

confidence in Hawaii papayas. Ample

supplies of good quality fruit will allow

the industry to regain its market share;

and, thus, improve returns to handlers

and producers.

The committee discussed continuing

the suspension as an alternative to this

change. However, the committee

believed that removing the suspension

of the grade, inspection, and reporting

requirements will benefit producers and

handlers by enhancing the market

quality of papayas grown in Hawaii.

The committee estimated that the

increased cost of inspection will be

offset by the increased market value of

the inspected papayas. Inspection costs

incurred will total $24.24 per hour for

on site inspections and mileage travel

costs of 37 cents a mile round-trip from

the office to the processing plant or

handler’s premises. For a trip of less

than 10 minutes or 7 miles, no travel

time cost is charged, just the mileage

cost. For a trip taking 10 or more

minutes, or covering 7 or more miles,

the travel time cost is based on the

$24.24 hourly rate. The majority of

committee members agreed that

removing the suspension of the grade,

inspection, and reporting requirements

is in the long-term best interests of the

industry.

Improved quality of Hawaii papayas

is expected to result in increased

consumer satisfaction and repeat

purchases, thereby improving handler

and producer returns. The increased

handling costs due to mandatory

inspection are expected to be offset by

the aforementioned benefits. In

addition, greater information collection

authority may result in enhanced

assessment collections, permitting the

committee to utilize more funds to

promote a larger and higher-quality

crop, if they deem it appropriate.

This action imposes additional

reporting requirements on an estimated

five papaya handlers by requiring

handlers to file PAC Form 7, the

Application to be an Approved Handler

of Immature Papayas, and PAC Form

7(c), Maturity Exemption Report. It also

requires including the inspection

certificate number on PAC Form 1. PAC

Form 7 is estimated to take 15 minutes

to complete, and PAC Form 7(c) is

estimated to take less than 10 minutes

to complete. There is no additional

measurable reporting burden estimated

for PAC Form 1. In all, requiring both

forms will result in an estimated

additional reporting burden to the

previously mentioned five handlers of

9.25 annual hours. The current burden

is approximately 1,000 hours. The

benefits of the additional reporting

requirements are expected to outweigh

the costs. Handlers will be able to

utilize exemptions to the grade and

inspection requirements, and the

committee will have additional

information to aid in assessment

collections and program compliance. In

accordance with the Paperwork

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

Chapter 35), the information collection

requirements that are contained in Part

928 have been previously approved by

the Office of Management and Budget

(OMB) and have been assigned OMB

No. 0581–0102.

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.

As noted in the initial regulatory

flexibility analysis, the Department has

not identified any relevant Federal rules

that duplicate, overlap, or conflict with

this final rule. However, as previously

stated, handlers of Hawaii papayas will

be required to obtain inspection prior to

shipment, except under certain

conditions when it is not practicable for

the inspection service to provide such

inspection, apply for approval to handle

immature papayas, and report handling

of immature papayas. In addition,

changes to PAC Form 1 will require

handlers to include the number of the

inspection certificate issued by the

inspection service.

In addition, the committee’s meeting

was widely publicized throughout the

papaya industry and all interested

persons were encouraged to attend the

meeting and participate in committee

deliberations on all issues. Like all

committee meetings, the February 18,

1999, meeting was a public meeting and

all entities, both large and small, were

encouraged to express views on this

issue. The committee itself is comprised

of 13 members, of whom nine are

producers and three are handlers. The

committee also includes a public

member who does not represent an

agricultural interest nor have a financial

interest in papayas.

A proposed rule concerning this

action was published in the Federal

Register on February 18, 2000 (65 FR

8313). Copies of the rule were mailed or

sent via facsimile to all committee

members and handlers. Finally, the rule

was made available on the Internet by

the Office of the Federal Register. A 60-

day comment period, ending April 18,

2000, we provided to allow interested

persons to respond to the proposal.

One comment, signed by eight

persons, was received in response to the

proposal. The commenters collectively

opposed the removal of the suspension

of grade and inspection requirements,

citing that the current economic

condition of the papaya industry did not

warrant reinstatement of these

requirements. The commenters also

noted that production of papayas, which

they estimate at only 29 million pounds,

is not yet adequate to warrant minimum

grade and inspection requirements and

that further market study should have

been done prior to the committee

recommendation. Also, according to the

comment, papaya trees that are not

PRSV-resistant still continue to be lost

due to PRSV, and the Hawaii

Department of Agriculture (HDOA) has

not put forth a plan to clear abandoned

papaya fields. Finally, the comment

Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70283

indicated that reinstating minimum

grade and inspection requirements

would be detrimental to small growers,

handlers, and marketers.

It is anticipated that the reinstatement

of the grade and inspection

requirements will have a positive effect

on the industry. These requirements

would ensure that higher-quality

papayas are offered for sale, thus

enhancing the overall image of Hawaii

papayas. Such an increase in quality is

also likely to stimulate consumer

confidence and lead to repeat

purchases, and, thus, improve grower

prices. Improved grower prices should,

in turn, improve the general economic

condition of the industry. Accordingly,

such action would not be detrimental to

growers, handlers, and marketers, small

or large.

Regarding the comment about

additional market studies, this

recommendation was the result of

nearly one year’s work by a task force

assigned by the committee chairman in

1998. The task force reviewed the

current marketing and quality

conditions affecting the industry for

several months prior to making a

recommendation to the committee. As a

result of the work and recommendation

of the task force, the committee made its

recommendation to the Department after

a thorough discussion on February 18,

1999. Discussions of the

recommendation continued at a

subsequent committee meeting held on

September 23, 1999. At that meeting, a

thorough analysis of the current

condition of the industry and the

potential effects of reinstating minimum

grade and inspection requirements was

held. It should be noted that the

committee did not change its original

recommendation at that time.

In response to the comment that the

production of papayas is only 29

million pounds, the PAC estimated the

1999–2000 production of papayas to be

40 million pounds. This estimate was

discussed and approved by the PAC at

its April 22, 1999, meeting. The fiscal

year ended June 30, 2000, and the PAC’s

final production figure for 1999–2000 is

35.8 million pounds. An estimate of

production for the 2000–2001 fiscal year

is not yet available.

In any event, the size of a crop alone

is not an adequate reason to forego

reinstating minimum grade and

inspection requirements. Minimum

grade and inspection requirements serve

other purposes for an industry. The

benefits have been previously outlined

herein.

Further, the commenters note that

grade and inspection requirements

should not be reinstated until the HDOA

puts forth a plan to clear abandoned

papaya fields. While a plan to clear

abandoned papaya fields would likely

address the continued infection of nonresistant papayas trees, nothing in this

action jeopardizes any plan which

HDOA may put forth in the future.

Regardless of the variety of papayas

being produced and marketed, quality

control measures are important to the

industry in terms of increased consumer

confidence and acceptance, repeat

purchases, and the overall improved

image of Hawaii papayas.

The cost of inspection may be an

additional cost to handlers. However,

the cost is borne by all handlers, and the

benefits of inspection in terms of

increased sales, improved marketability,

and other factors, are expected to

outweigh the costs.

The comment period was reopened

with a notice published in the Federal

Register on June 5, 2000 (65 FR 35590).

Copies of the notice were mailed or sent

via facsimile to all committee members

and handlers. Finally, the notice was

made available on the Internet by the

Office of the Federal Register. A 15-day

comment period, ending June 20, 2000,

was provided to allow interested

persons to respond to the notice for

additional written comments. One

comment was received as the result of

the comment period reopening.

The comment was filed on behalf of

the committee, which discussed the

proposal at its meeting on May 25, 2000.

According to the comment, at the

meeting the committee clarified its

intent regarding the removal of the 5

percent tolerance for immature papayas.

Based upon additional information that

was gathered, evaluated, and considered

by the committee at the meeting, the

committee unanimously reaffirmed its

1999 recommendation that the

maximum percentage tolerances for

immature papayas be based upon the

Hawaii No. 1 standard, as established by

the State of Hawaii. As noted

previously, this would generally limit

tolerances to less than 5 percent for

immature papayas, in part because this

is scored as a serious defect. Thus, this

applied tolerance would result in the

increased papaya quality envisioned by

the committee.

According to the proponents of this

action, the voluntary quality control

measures anticipated following the 1994

suspension action have not been

effective and the quality of papayas has

been dropping. This has had an adverse

impact on industry shipments and

returns. They believe that reinstatement

of quality control is in the long term

interest of the industry because it will

help the industry reestablish a quality

image for Hawaii papayas among buyers

and consumers, help increase

shipments, augment information

available to the committee on

assessments owed by handlers, and

facilitate program compliance. These are

compelling reasons for reinstating

quality control under the marketing

order.

However, taking into account the

views of some in the industry that the

benefits of mandatory inspection will

not outweigh the costs, and that

alternative methods of quality control

should continue to be explored and

developed in helping the industry solve

its marketing problems, and the length

of time the requirements have been

suspended (1994), we believe that it is

preferable to reestablish the mandatory

inspection and related requirements and

make them applicable for a 12-month

period, rather than on a continuing

basis. This regulatory approach will

require the committee to evaluate the

results of mandatory quality control

near the end of the regulatory period.

The committee will have to decide then

whether mandatory inspection should

be continued beyond the 12-month

regulatory period, and report the basis

for its determination and

recommendation. This will require the

committee to closely assess the benefits

of mandatory inspection in the short

term which should be of assistance in

helping producers and handlers make

long term plans.

Changes to the regulatory text as

proposed have been made below to

implement mandatory quality control

only for one year from the effective date

of this final rule.

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

matter presented, including the

information and recommendation

submitted by the committee, the

comment received, and other available

information, it is hereby found that this

rule, as hereinafter set forth, will tend

to effectuate the declared policy of the

Act.

List of Subjects in 7 CFR Part 928

Incorporation by reference, Marketing

agreements, Papayas, Reporting and

recordkeeping requirements.

70284 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

For the reasons set forth in the

preamble, 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. The suspensions of §§ 928.150 and

928.152 are removed and introductory

text is added to each section to read as

follows:

§ 928.150 Exemption from inspection.

The requirements in this section

apply through Janaury 2, 2002.

* * * * *

§ 928.152 Maturity exemption.

The requirements in this section

apply through January 2, 2002.

* * * * *

3. In § 928.160, paragraph (a)(1) is

revised to read as follows:

§ 928.160 Utilization reports.

(a) * * *

(1) Quantity of papayas handled

subject to assessments and regulations

including the date, destination, and

inspection certificate number of each

shipment when inspection requirements

specified in § 928.313 apply Janaury 2,

2001, through January 2, 2002; * * *

4. The suspension of § 928.313 is

removed and the section is revised to

read as follows:

§ 928.313 Hawaiian Papaya Regulation 13.

(a) During the period January 2, 2001,

through January 2, 2002, no handler

shall ship any container of papayas to

any destination (except immature

papayas handled pursuant to § 928.152)

unless such papayas grade at least

Hawaii No. 1: Provided, That the weight

requirements specified in this grade

shall not apply to such shipments.

(b) Hawaii No. 1 cited in this

regulation is specified in the Hawaii

Department of Agriculture, Standards

for Fruits and Vegetables (Title 4,

Subtitle 4, Chapter 41, Subchapter 7,

§ 4–41–52, Standards for Hawaii-Grown

Papaya) (8/6/90). Copies of the grade

specifications are available from the

Chief, Marketing Order Administration

Branch, F&V, AMS, USDA, Washington,

DC 20250; and they are also available

for inspection at the Office of the

Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

This incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a), and 1 CFR part 51. The materials

are incorporated as they exist on the

date of approval and a notice of any

changes in the material will be

published in the Federal Register.

Dated: November 14, 2000.

Eric M. Forman,

Acting Deputy Administrator, Fruit and

Vegetable Programs.

[FR Doc. 00–29706 Filed 11–21–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 77

[Docket No. 99–092–1]

Tuberculosis in Cattle, Bison, and

Captive Cervids; State and Zone

Designations

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the bovine

tuberculosis regulations to recognize

two separate zones with different

tuberculosis risk classifications in the

State of Texas. This action is necessary

to prevent the spread of tuberculosis

and to further the progress of the

domestic bovine tuberculosis

eradication program.

DATES: This interim rule is effective

November 22, 2000. We invite you to

comment on this docket. We will

consider all comments that we receive

on or before January 22, 2001.

ADDRESSES: Please send four copies of

your comment (an original and three

copies) to: Docket No. 99–092–1,

Regulatory Analysis and Development,

PPD, APHIS, Suite 3C03, 4700 River

Road Unit 118, Riverdale, MD 20737–

1238.

Please state that your comments refer

to Docket No. 99–092–1.

You may read any comments that we

receive on this docket in our reading

room. The reading room is located in

room 1141 of the USDA South Building,

14th Street and Independence Avenue

SW., Washington, DC. Normal reading

room hours are 8 a.m. to 4:30 p.m.,

Monday through Friday, except

holidays. To be sure someone is there to

help you, please call (202) 690–2817

before coming.

FOR FURTHER INFORMATION CONTACT: Dr.

Joseph Van Tiem, Senior Staff

Veterinarian, National Animal Health

Programs, VS, APHIS, USDA, 4700

River Road Unit 43, Riverdale, MD

20737–1231; (301) 734–7716.

SUPPLEMENTARY INFORMATION:

Background

Bovine tuberculosis is a contagious,

infectious, and communicable disease

caused by Mycobacterium bovis. It

affects cattle, bison, deer, elk, goats, and

other species, including humans.

Bovine tuberculosis in infected animals

and humans manifests itself in lesions

of the lung, bone, and other body parts,

causes weight loss and general

debilitation, and can be fatal.

At the beginning of the 20th century,

bovine tuberculosis caused more losses

of livestock than all other livestock

diseases combined. This prompted the

establishment of the National

Cooperative State/Federal Bovine

Tuberculosis Eradication Program for

bovine tuberculosis in livestock.

Federal regulations implementing this

program are contained in 9 CFR part 77,

‘‘Tuberculosis’’ (referred to below as the

regulations), and in the ‘‘Uniform

Methods and Rules Bovine Tuberculosis

Eradication’’ (UMR), which is

incorporated by reference into the

regulations. The regulations restrict the

interstate movement of cattle, bison, and

captive cervids to prevent the spread of

tuberculosis. In this interim rule, we are

amending the regulations to establish

two tuberculosis classification zones in

Texas.

Note: On October 23, 2000, we published

a final rule in the Federal Register (65 FR

63501–63533, Docket No. 99–038–5) that

revised part 77 in its entirety. That final rule

is scheduled to become effective on

November 22, 2000. In describing the actions

to be taken in this interim rule, which also

becomes effective on November 22, 2000, we

will refer to the regulations as they appear in

our October 23, 2000, final rule.

Conditions for Zone Recognition

Under §§ 77.3 and 77.4 of the

regulations, in order to qualify for zone

classification by the Animal and Plant

Health Inspection Service (APHIS), the

State must meet the following

requirements:

1. The State must have adopted and

must be enforcing regulations that

impose restrictions on the intrastate

movement of cattle, bison, and captive

cervids that are substantially the same

as those in place in part 77 for the

interstate movement of those animals.

2. The designation of part of a State

as a zone must otherwise be adequate to

prevent the interstate spread of

tuberculosis.

3. The zones must be delineated by

the animal health authorities in the

State making the request for zone