Melons Grown in South Texas; Termination of Marketing Order 979, 33178-33181 [E6-8895]
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Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations
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§ 319.56–2rr Administrative instructions;
conditions governing the importation of
untreated grapefruit, sweet oranges, and
tangerines from Mexico for processing.
Untreated grapefruit (Citrus paradisi),
sweet oranges (Citrus sinensis), and
tangerines (Citrus reticulata) may be
imported into the United States from
Mexico for extracting juice if they
originate from production sites in
Mexico that are approved by APHIS
because they meet the following
conditions and any other conditions
determined by the Administrator to be
necessary to mitigate the pest risk that
such fruits pose:
(a) Application of sterile insect
technique. Production sites, and a
surrounding 1.5 mile buffer area, must
be administered under an APHISapproved preventative release program
using sterile insect technique for the
Mexican fruit fly (Anastrepha ludens).
(b) Fruit fly trapping protocol. (1)
Trapping densities. In areas where
grapefruit, sweet oranges, and
tangerines are produced for export to
the United States, APHIS approved
traps and lures must be placed in
production sites and a surrounding 1.5
mile buffer areas as follows:
(i) For Mexican fruit fly (Anastrepha
ludens) and sapote fruit fly (A.
serpentina): One trap per 50 hectares.
(ii) For Mediterranean fruit fly
(Ceratitis capitata): One to four traps per
250 hectares.
(2) Fruit fly catches. Upon trapping of
a Mexican fruit fly, sapote fruit fly, or
Mediterranean fruit fly in a production
site or buffer area, exports from that
production site are prohibited until the
Administrator determines that the
phytosanitary measures taken have been
effective to allow the resumption of
export from that production site.
(3) Monitoring. The trapping program
must be monitored under an APHISapproved quality control program.
(c) Safeguarding. Fruit must be
safeguarded against fruit fly infestation
using methods approved by APHIS from
the time of harvest until processing in
the United States.
(d) Phytosanitary certificate. Each
shipment must be accompanied by a
phytosanitary certificate issued by
Mexico’s national plant protection
organization that contains additional
declarations stating that the
requirements of paragraphs (a), (b), and
(c) of this section have been met.
(e) Ports. The harvested fruit may
enter the United States only through a
port of entry located in one of the Texas
counties listed in § 301.64–3(c) of this
chapter.
(f) Route of transit. Harvested fruit
must travel on the most direct route to
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the processing plant from its point of
entry into the United States as specified
in the import permit. Such fruit may not
enter or transit areas other than the
Texas counties listed in § 301.64–3(c) of
this chapter.
(g) Approved destinations. Processing
plants within the United States must be
located within an area in Texas that is
under an APHIS-approved preventative
release program using sterile insect
technique for Mexican fruit fly.
(h) Compliance agreements.
Processing plants within the United
States must enter into a compliance
agreement with APHIS in order to
handle grapefruit, sweet oranges, and
tangerines imported from Mexico in
accordance with this section. APHIS
will only enter into compliance
agreements with facilities that handle
and process grapefruit, sweet oranges,
and tangerines from Mexico in such a
way as to eliminate any risk that exotic
fruit flies could be disseminated into the
United States, as determined by APHIS.
(Approved by the Office of Management and
Budget under control number 0579–0264)
Done in Washington, DC, this 2nd day of
June 2006.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E6–8935 Filed 6–7–06; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 979
[Docket No. FV06–979–1 FR]
Melons Grown in South Texas;
Termination of Marketing Order 979
Agricultural Marketing Service,
USDA.
ACTION: Final rule, termination of order.
AGENCY:
SUMMARY: This final rule terminates the
Federal marketing order for melons
grown in South Texas (order) and the
rules and regulations issued thereunder.
The Department of Agriculture (USDA)
has determined the order should be
terminated given the declining status of
the industry.
DATES: Effective Date: June 9, 2006.
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
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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.
This
action is being taken pursuant to
§ 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 § 979.84 of
the order.
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 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 terminates 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.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations
USDA suspended indefinitely
regulations under the order while it
considered the Committee’s
recommendation for termination (70 FR
57995; October 5, 2005). USDA issued a
proposed rule soliciting comments on
proposed termination of the order on
December 22, 2005 (70 FR 75984).
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. Section 608c(16)(A) of
the Act also requires the Secretary to
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
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
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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 continued to worsen. The
Committee believed that there was 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 was 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.
In order to solicit input from
interested parties regarding termination
of the order, USDA issued a proposed
termination order on December 22, 2005
(70 FR 75984). A 60-day comment
period was provided to allow interested
parties the opportunity to comment. No
comments were received.
Pursuant to section 8c(16)(A) of the
Act and § 979.84 of the order, USDA has
determined that the order and all of its
provisions should be terminated due to
the declining status of the industry and
lack of industry support for the
program. Section 8c(16)(A) of the Act
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33179
requires USDA to notify Congress at
least 60 days before terminating a
Federal marketing order program.
Congress was so notified on March 16,
2006. USDA hereby appoints Committee
Chairman Fred Schuster and Committee
member Jimmy Pawlick as trustees to
conclude and liquidate the affairs of the
Committee and to continue in such
capacity until discharged.
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 $6,500,000, 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
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Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations
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 $6,500,000
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,
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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
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
believed that there was 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.
In order to solicit input from
interested parties regarding termination
of the order, USDA issued a proposed
termination order on December 22, 2005
(70 FR 75984). A 60-day comment
period was provided to allow interested
parties the opportunity to comment. No
comments were received. After
evaluating all available information,
USDA has determined that the order
should be terminated.
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection
requirements being terminated by this
rule were approved previously by the
Office of Management and Budget
(OMB) and assigned OMB No. 0581–
0178, Vegetable and Specialty Crops.
Termination of all the reporting
requirements under the order is
expected to reduce the reporting burden
on small or large South Texas melon
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handlers by 24.90 hours, and should
further reduce industry expenses.
USDA has not identified any relevant
Federal rules that duplicate, overlap or
conflict with this rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://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.
A proposed rule inviting comments
on the proposed termination of
Marketing Order 979 covering melons
grown in South Texas was published in
the Federal Register on December 22,
2005 (70 FR 75984). Copies of the rule
were mailed by the Committee’s staff to
handlers and growers. In addition, the
rule was made available through the
Internet by the USDA and the Office of
the Federal Register. The rule provided
a 60-day comment period which ended
on February 21, 2006. No comments
were received.
As previously discussed, the South
Texas melon industry has continually
declined. Currently, there are 7
handlers, 13 growers, and a relatively
small 2,364 acres. Further, the
Committee recommended unanimously
to terminate the program, and no
comments were received concerning the
proposed termination published in the
Federal Register. Based on the
foregoing, and pursuant to § 608c(16)(A)
of the Act and § 979.84 of the order, it
is hereby found that Federal marketing
order 979 covering melons produced in
South Texas does not tend to effectuate
the declared policy of the Act, and is
therefore terminated.
It is further found 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
terminating the requirements of the
Texas melon marketing order; (2)
regulations under the order have been
suspended for the past two crop years;
(3) the Committee unanimously
recommended termination, and all
handlers and growers in the industry
have been notified and have been
provided the opportunity to comment;
and (4) no useful purpose would be
served by delaying the effective date.
List of Subjects in 7 CFR Part 979
Marketing agreements, Melons,
Reporting and recordkeeping
requirements.
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Federal Register / Vol. 71, No. 110 / Thursday, June 8, 2006 / Rules and Regulations
PART 979—[REMOVED]
For the reasons set forth in the
preamble, and under the authority of 7
U.S.C. 601–674, 7 CFR part 979 is
removed.
I
Dated: June 2, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E6–8895 Filed 6–7–06; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Rural Business-Cooperative Service
7 CFR Parts 1980 and 4279
RIN 0570–AA49
Business and Industry Guaranteed
Loans—Tangible Balance Sheet Equity
Rural Business-Cooperative
Service, USDA.
ACTION: Final rule.
cprice-sewell on PROD1PC66 with RULES
AGENCY:
SUMMARY: In this final rule the Rural
Business-Cooperative Service (the
Agency) amends existing regulations
relating to Business and Industry (B&I)
loans made or guaranteed by the Agency
by modifying the provisions that
address the evaluation of credit quality.
Changes to these underwriting
provisions were originally proposed on
January 16, 2004. The scope of this final
rule is more limited than originally
proposed but also implements a change
not originally discussed in the proposed
rule. Specifically, in the case of the
refinancing of USDA or other Federal
agency debt only, the Agency is
modifying the definition of tangible
balance sheet equity to include the off
balance sheet value of tangible assets to
the extent of the difference between the
depreciated book value of real property
assets and their current market value
supported by an appraisal or the
original book value, whichever is less.
In these limited cases, the adjusted
tangible balance sheet equity will also
include qualified subordinated debt
owed to the owner. As stated above,
these adjustments to the equity
calculation will apply only in cases
where the Agency is asked to guarantee
a refinancing of outstanding debt
currently owed to or guaranteed by a
Federal agency, including the Small
Business Administration. The intended
effect of this action is to facilitate
Agency guarantees of certain
refinancing loans that otherwise would
not meet the equity requirements
because the financial statements
prepared in accordance with generally
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accepted accounting principles do not
reflect the current market value of real
property assets owned by the borrower.
In the case of all direct or guaranteed
loan applications, the tangible net
equity calculation may include a
restricted universe of qualified
intellectual property. The Agency is also
increasing the equity requirements
applicable to energy businesses.
EFFECTIVE DATE: July 10, 2006.
FOR FURTHER INFORMATION CONTACT: Fred
Kieferle, Rural Business-Cooperative
Service, USDA, Stop 3224, Room 6845,
1400 Independence Ave., SW.,
Washington, DC 20250–3224,
Telephone (202) 720–7818, Fax (202)
720–6003, or E-mail:
fred.kieferle@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Classification
This final rule has been determined to
be not significant for purposes of
Executive Order (E.O.) 12866 and,
therefore, has not been reviewed by the
Office of Management and Budget.
Programs Affected
The Catalog of Federal Domestic
Assistance Program number assigned to
the applicable programs is 10.768,
Business and Industry Loans.
Program Administration
These programs are administered
through the Business and Industry
Division of the Rural BusinessCooperative Service within the Rural
Development mission area of USDA and
delivered via the USDA Rural
Development State Directors.
Executive Order 12372
As stated in the Notice related to 7
CFR part 3015, subpart V, the programs
and activities within this rule are
subject to E.O. 12372 which requires
intergovernmental consultation in the
manner delineated in 7 CFR part 3015,
subpart V. Accordingly, agency
personnel advise all prospective
applicants of whether their state has
elected to participate in the consultation
process by designating a single point of
contact and name of that contact point.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995, the information
collection requirements contained in
this regulation have been approved by
OMB under control numbers 0570–0014
and 0570–0017.
Government Paperwork Elimination
Act
The Agency is committed to
compliance with the Government
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33181
Paperwork Elimination Act, which
requires Government agencies, in
general, to provide the public the option
of submitting information or transacting
business electronically to the maximum
extent possible.
Environmental Impact Statement
It is the determination of the Agency
that this action is not a major Federal
action significantly affecting the
environment. Therefore, in accordance
with the National Environmental Policy
Act of 1969, an Environmental Impact
Statement is not required.
Executive Order 12988
This final rule has been reviewed in
accordance with E.O. 12988, Civil
Justice Reform. In accordance with this
rule: (1) All state and local laws and
regulations that are in conflict with this
rule will be preempted; (2) no
retroactive effect will be given to this
rule; and (3) administrative proceedings
in accordance with 7 CFR part 11 must
be exhausted before bringing suit in
court challenging action taken under
this rule unless those regulations
specifically allow bringing suit at an
earlier time.
Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) establishes
requirements for Federal agencies to
assess the effects of their regulatory
actions on state, local, and tribal
governments and the private sector.
Under section 202 of the UMRA, USDA
must prepare a written statement,
including a cost benefit analysis, for
proposed and final rules with ‘‘Federal
mandates’’ that may result in
expenditures to state, local or tribal
governments, in the aggregate, or to the
private sector, of $100 million or more
in any one year. When such a statement
is needed for a rule, section 205 of
UMRA generally requires USDA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, more cost
effective or least burdensome alternative
that achieves the objectives of the rule.
This rule contains no Federal
mandates (under the regulatory
provisions of title II of the UMRA) for
state, local, and tribal governments or
the private sector. Therefore this rule is
not subject to the requirements of
sections 202 and 205 of UMRA.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), the
undersigned has determined and
certified by signature of this document
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]]>Agencies
[Federal Register Volume 71, Number 110 (Thursday, June 8, 2006)]
[Rules and Regulations]
[Pages 33178-33181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-8895]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 979
[Docket No. FV06-979-1 FR]
Melons Grown in South Texas; Termination of Marketing Order 979
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule, termination of order.
-----------------------------------------------------------------------
SUMMARY: This final rule terminates the Federal marketing order for
melons grown in South Texas (order) and the rules and regulations
issued thereunder. The Department of Agriculture (USDA) has determined
the order should be terminated given the declining status of the
industry.
DATES: Effective Date: June 9, 2006.
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 action is being taken pursuant to Sec.
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 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 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 terminates 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.
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USDA suspended indefinitely regulations under the order while it
considered the Committee's recommendation for termination (70 FR 57995;
October 5, 2005). USDA issued a proposed rule soliciting comments on
proposed termination of the order on December 22, 2005 (70 FR 75984).
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. Section 608c(16)(A) of the Act also
requires the Secretary to 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 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 continued to worsen. The Committee believed that there was 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 was 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.
In order to solicit input from interested parties regarding
termination of the order, USDA issued a proposed termination order on
December 22, 2005 (70 FR 75984). A 60-day comment period was provided
to allow interested parties the opportunity to comment. No comments
were received.
Pursuant to section 8c(16)(A) of the Act and Sec. 979.84 of the
order, USDA has determined that the order and all of its provisions
should be terminated due to the declining status of the industry and
lack of industry support for the program. Section 8c(16)(A) of the Act
requires USDA to notify Congress at least 60 days before terminating a
Federal marketing order program. Congress was so notified on March 16,
2006. USDA hereby appoints Committee Chairman Fred Schuster and
Committee member Jimmy Pawlick as trustees to conclude and liquidate
the affairs of the Committee and to continue in such capacity until
discharged.
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 $6,500,000, 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
[[Page 33180]]
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 $6,500,000 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 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 believed that there was 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.
In order to solicit input from interested parties regarding
termination of the order, USDA issued a proposed termination order on
December 22, 2005 (70 FR 75984). A 60-day comment period was provided
to allow interested parties the opportunity to comment. No comments
were received. After evaluating all available information, USDA has
determined that the order should be terminated.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection requirements being terminated
by this rule were approved previously by the Office of Management and
Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty
Crops. Termination 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.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this 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.
A proposed rule inviting comments on the proposed termination of
Marketing Order 979 covering melons grown in South Texas was published
in the Federal Register on December 22, 2005 (70 FR 75984). Copies of
the rule were mailed by the Committee's staff to handlers and growers.
In addition, the rule was made available through the Internet by the
USDA and the Office of the Federal Register. The rule provided a 60-day
comment period which ended on February 21, 2006. No comments were
received.
As previously discussed, the South Texas melon industry has
continually declined. Currently, there are 7 handlers, 13 growers, and
a relatively small 2,364 acres. Further, the Committee recommended
unanimously to terminate the program, and no comments were received
concerning the proposed termination published in the Federal Register.
Based on the foregoing, and pursuant to Sec. 608c(16)(A) of the Act
and Sec. 979.84 of the order, it is hereby found that Federal
marketing order 979 covering melons produced in South Texas does not
tend to effectuate the declared policy of the Act, and is therefore
terminated.
It is further found 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 terminating the requirements of the Texas
melon marketing order; (2) regulations under the order have been
suspended for the past two crop years; (3) the Committee unanimously
recommended termination, and all handlers and growers in the industry
have been notified and have been provided the opportunity to comment;
and (4) no useful purpose would be served by delaying the effective
date.
List of Subjects in 7 CFR Part 979
Marketing agreements, Melons, Reporting and recordkeeping
requirements.
[[Page 33181]]
PART 979--[REMOVED]
0
For the reasons set forth in the preamble, and under the authority of 7
U.S.C. 601-674, 7 CFR part 979 is removed.
Dated: June 2, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-8895 Filed 6-7-06; 8:45 am]
BILLING CODE 3410-02-P
