[Federal Register: December 22, 2005 (Volume 70, Number 245)]
[Proposed Rules]
[Page 75984-75986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de05-16]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 979
[Docket No. FV06-979-1 PR]
Melons Grown in South Texas; Proposed Termination of Marketing
Order 979
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to terminate the Federal marketing order
for melons grown in South Texas (order) and the rules and regulations
issued thereunder. The order contains authority to regulate the
handling of melons grown in South Texas and is administered locally by
the South Texas Melon Committee (Committee). The Committee recommended
terminating the order at a meeting on September 7, 2005. The Department
of Agriculture (USDA) suspended regulations under the order while it
considered the Committee's recommendation. This rule invites comments
on proposed termination of the order.
DATES: Comments must be received by February 21, 2006.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; E-mail: moab. docketclerk@usda.gov; or
Internet: http://www.regulations.gov. 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: Martin J. Engeler, Senior Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, 2202 Monterey Street, Suite 102-B, Fresno,
California 93721; telephone: (559) 487-5110, Fax: (559) 487-5906; or
Kathleen M. Finn, Formal Rulemaking Team Leader, 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: Jay.Guerber@USDA.gov.
SUPPLEMENTARY INFORMATION: This proposed rule is governed by section
608c(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. 979.84 of the order.
USDA is issuing this rule in conformance with Executive Order
12866.
This proposed termination of the order 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 608c(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.
This rule proposes to terminate the Federal marketing order for
melons grown in South Texas and the rules and regulations issued
thereunder. The order contains authority to regulate the handling of
melons grown in South Texas and is administered locally by the South
Texas Melon Committee (Committee). At a meeting held on September 7,
2005, the Committee recommended terminating the order. USDA suspended
indefinitely regulations under the order while it considers the
Committee's recommendation for termination (70 FR 57995; October 5,
2005). This rule invites comments on proposed termination of the order.
Section 979.84 of the order provides, in pertinent part, that the
Secretary shall terminate or suspend any or all provisions of the order
when he finds that it does not tend to effectuate the declared policy
of the Act. Section 608c(16)(A) of the Act provides that the Secretary
shall terminate or suspend the operation of any order whenever the
order or provision thereof obstructs or does not tend to effectuate the
declared policy of the Act. The Secretary must notify Congress not
later than 60 days before the date the order would be terminated.
The order has been in effect since 1979. It contains authority for
grade, size, quality, maturity, pack, container, and reporting
requirements. It also authorizes production research and marketing
research and development activities. Grade, quality, maturity,
container, and pack regulations have historically been utilized under
the order, as well as mandatory inspection to ensure these requirements
were met. Assessments have been collected to fund order operations,
including production research and marketing research and promotion
activities. Reporting requirements have also been implemented under the
order.
The South Texas melon industry has been shrinking in recent seasons
due to the inability to provide a dependable supply of good quality
fruit, a lack of success in developing new varieties of improved
quality melons, and intense domestic and foreign competition. Acreage
decreased from a high of 27,463 acres in 1987 to 4,780 acres in 2004.
The number of producers and handlers has decreased significantly as
well.
Because of the declining status of the industry, on September 16,
2004, the Committee recommended suspending all regulatory and reporting
requirements and assessment collections under the order for the 2004-05
season, except one reporting requirement regarding planted acreage. The
suspension was recommended for one season with the hope that new
[[Page 75985]]
melon varieties may be developed to help revive the industry, and to
provide a period of time to allow the Committee to evaluate whether it
believed the marketing order should be continued. An interim final rule
suspending the regulatory and reporting requirements and assessment
collections for the 2004-05 season, except for one reporting
requirement regarding planted acreage, was published in the Federal
Register on November 26, 2004 (69 FR 68761), followed by a final rule
published on February 23, 2005 (70 FR 8709). The 2004-05 season began
on October 1, 2004, and ended on September 30, 2005.
The Committee met on September 7, 2005, to evaluate the industry
situation since the regulations were suspended. Planted acreage
continued to decline, from 4,780 acres in 2003-04 to 2,364 acres in
2004-05. The number of melon growers and handlers also continued to
decline. During the 2003-04 season, there were 29 growers and 16
handlers; in 2004-05 the number of known growers decreased to 13 and
handlers decreased to seven. In addition, no new varieties were
introduced to improve the quality and make the product more competitive
with product from other producing areas. In short, the industry
situation continues to worsen. The Committee believes that there is no
longer a need for the order, and therefore recommended its termination
by unanimous vote.
USDA continued the suspension of regulations, reporting
requirements, and assessment collections for an indefinite period, and
also suspended the one remaining reporting requirement regarding
planted acreage for an indefinite period to allow adequate time to
collect additional information in order to determine if terminating the
order is warranted. Suspension of regulations, reporting requirements,
and assessment collections for an indefinite period was published in
the Federal Register on October 5, 2005 (70 FR 57995). No comments were
received as a result of that publication and a final rule was published
in the Federal Register on December 7, 2005 (70 FR 72699). The rule
continued to relieve handlers of regulatory requirements while USDA
evaluated the Committee's recommendation for terminating the order.
This proposed termination of the order is intended to solicit input
and any additional information available from interested parties
regarding whether the order should be terminated. USDA will evaluate
all available information prior to making a final determination on this
matter.
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 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
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 the 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.
During the 2004-05 marketing year, there were approximately seven
handlers of South Texas melons subject to regulation under the
marketing order and approximately 13 melon growers in the regulated
area. Small agricultural service firms are defined by the Small
Business Administration (SBA) (13 CFR 121.201) as those having annual
receipts of less than $6,000,000 and small agricultural growers are
defined as those having annual receipts of less than $750,000.
Most of the handlers are vertically integrated operations involved
in growing, shipping, and marketing melons. For the 2003-04 marketing
year, the industry's 16 handlers shipped melons produced on 4,780 acres
with the average and median volume handled being 89,012 and 10,655
containers, respectively. In terms of production value, total revenue
for the 16 handlers was estimated to be $12,175,919, with the average
and median revenues being $760,996 and $91,094, respectively. Complete
comparable data is not available for the 2004-05 marketing year, but
based on a reduction of acreage from 4,780 acres in 2003-04 to 2,364
acres in 2004-05, and the reduced number of growers and handlers, it
follows that the volume handled and the value of production likely
declined as well.
The South Texas melon industry is characterized by growers and
handlers whose farming operations generally involve more than one
commodity, and whose income from farming operations is not exclusively
dependent on the production of melons. Alternative crops provide an
opportunity to utilize many of the same facilities and equipment not in
use when the melon production season is complete. For this reason,
typical melon growers and handlers either double-crop melons during
other times of the year or produce alternative crops, like onions.
Based on the SBA's definition of small entities, it is estimated
that all of the seven handlers regulated by the order would be
considered small entities if only their spring melon revenues are
considered. However, revenues from other productive enterprises might
push a number of these handlers above the $6,000,000 annual receipt
threshold. Of the 13 growers within the production area, few have
sufficient acreage to generate sales in excess of $750,000; therefore,
the majority of growers may be classified as small entities.
The South Texas cantaloupe and honeydew melon industry has been
shrinking. South Texas historically had enjoyed a marketing window of
approximately six weeks beginning about May 1 each season.That window
has steadily eroded in recent years due to strong competition from
other melon producing areas, and quality problems with Texas melons. As
a result, acreage has decreased dramatically from a high of 27,463
acres in 1987, to 4,780 in 2004, and 2,364 acres in 2005. The number of
producers and handlers also has steadily declined.
Because of the declining status of the industry, the Committee
recommended suspending all regulatory and reporting requirements and
assessment collections under the order for the 2004-05 season, except
one reporting requirement regarding planted acreage. The suspension was
recommended for one season with the hope that new melon varieties may
be developed to help revive the industry, and to provide a period of
time to allow the Committee to evaluate whether it believed the
marketing order should be continued. An interim final rule suspending
the regulatory and reporting requirements and assessment collections
for the 2004-05 season, except for one reporting requirement regarding
planted acreage, was published in the Federal Register on November 26,
2004 (69 FR 68761), followed by a final rule published on February 23,
2005 (70 FR 8709).
Suspending the regulations enabled handlers to ship melons without
regard to the minimum grade, quality, maturity, container, pack,
inspection, and related requirements for the 2004-05 fiscal period. It
decreased industry expenses associated with inspection and payment of
assessments. During the 2003-04 season, inspection costs associated
with the order were estimated at $46,000 and assessments collected were
$102,988. These costs were not incurred during the 2004-05
[[Page 75986]]
season as a result of the suspension of regulations and assessment
obligations.
The Committee met on September 7, 2005, to evaluate the industry
situation since the regulations were suspended. As previously
discussed, planted acreage continued to decline and the number of melon
growers and handlers also continued to decline during the 2004-05
season. In addition, no new varieties were introduced to improve the
quality and make South Texas melons more competitive with other
producing areas. The Committee believes that there is no longer a need
for the order, and therefore unanimously recommended its termination.
Suspension of regulations, reporting requirements, and assessment
collections was continued for an indefinite period, and the one
remaining reporting requirement regarding planted acreage was also
suspended indefinitely pursuant to publication in the Federal Register
on October 5, 2005 (70 FR 57995). No comments were received as a result
of that publication and a final rule was published in the Federal
Register on December 7, 2005 (70 FR 72699). The rule continued to
relieve handlers of regulatory requirements while USDA evaluated the
Committee's recommendation for terminating the order.
This proposal would reduce the regulatory burden on handlers under
the marketing order. There are no other viable alternatives to this
proposal.
This proposed termination of the order is intended to solicit input
and any additional information available from interested parties on
whether the order should be terminated. USDA will evaluate all
available information prior to making a final determination on this
matter.
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. 0581-0178, Vegetable and Specialty
Crops. Suspension of all the reporting requirements under the order is
expected to reduce the reporting burden on small or large South Texas
melon handlers by 24.90 hours, and should further reduce industry
expenses. Handlers are no longer required to file any forms with the
Committee. This proposed rule would thus not impose any additional
reporting or recordkeeping requirements on either small or large melon
handlers. 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, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout
the melon industry and all interested persons were invited to attend
the meeting and participate in Committee deliberations. Like all
Committee meetings, the September 16, 2004, meeting and the September
7, 2005 meeting were public meetings and all entities, both large and
small, were able to express their views on this issue. Finally,
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: 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.
This rule invites comments on the proposed termination of Marketing
Order 979 covering melons grown in South Texas. All written comments
timely received will be considered before a final determination is made
on this matter.
Based on the foregoing, and pursuant to Sec. 608c(16)(A) of the
Act and Sec. 979.84 of the Order, USDA is considering termination of
the order. If USDA decides to terminate the order, trustees would be
appointed to conclude and liquidate the affairs of the Committee, and
would continue in that capacity until discharged by USDA. In addition,
USDA would notify Congress 60 days in advance of termination pursuant
to Sec. 608c(16)(A) of the Act.
List of Subjects in 7 CFR Part 979
Marketing agreements, Melons, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 979 is
proposed to be removed.
PART 979--[REMOVED]
1. The authority citation for 7 CFR part 979 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Accordingly, 7 CFR part 979 is removed.
Dated: December 16, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-24339 Filed 12-21-05; 8:45 am]
BILLING CODE 3410-02-M