Tomatoes Grown in the Lower Rio Grande Valley in Texas; Proposed Termination of Marketing Order 965

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 965

[Docket No. FV95-965-1PR]

Tomatoes Grown in the Lower Rio Grande Valley in Texas; Proposed

Termination of Marketing Order 965

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to terminate the Federal marketing order

for tomatoes grown in the Lower Rio Grande Valley in Texas (order) and

the rules and regulations issued thereunder. In recent years, this

industry has declined significantly in numbers of producers and

handlers. In March 1959, when the order commenced, there were 2,488

producers and 61 handlers of tomatoes. Currently, there are

approximately 10 producers, 5 of which are also handlers. The Texas

Valley Tomato Committee (committee) last met on October 1, 1991, to

conduct nominations. However, only a few of the former committee

members are currently producers or handlers in the tomato industry and

eligible to serve on the committee. Handling regulations have not been

implemented since the 1973-74 fiscal period and there is no indication

that the industry will be revived. Thus, there is no need for the

Department of Agriculture to continue operation of this order.

DATES: Comments must be received by July 26, 1995.

ADDRESSES: Interested person are invited to submit written comments

concerning this proposal. Comments must be sent in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS USDA, P.O. Box 96456,

room 2523-S, Washington, D.C. 20090-6456; (202) 720-5698. Comments

should reference the docket number and the date and page number of this

issue of the Federal Register and will be made available for public

inspection in the Office of the Docket Clerk during regular business

hours.

FOR FURTHER INFORMATION CONTACT: James B. Wendland, Marketing Order

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

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone (202) 720-

2170, or Belinda G. Garza, McAllen Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, 1313 East Hackberry, McAllen, Texas

78501, telephone (210) 682-2833.

SUPPLEMENTARY INFORMATION: This proposed rule is governed by the

provisions of 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. 965.84 of the order.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This proposed termination of the order has been reviewed under

Executive Order 12778, Civil Justice Reform. This proposed rule is not

intended to have retroactive effect. This proposed rule would 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 Sec. 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 a principal

place of business, has jurisdiction in equity to review the Secretary's

ruling on the petition, provided a bill in equity is filed not later

than 20 days after the date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

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

(AMS) has considered the economic impact of this action on small

entities.

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

[[Page 32923]] small entities acting on their own behalf. Thus, both

statutes have small entity orientation and compatibility.

There are approximately 10 producers, 5 of which are also handlers

who would be subject to seasonal handling regulations under the order,

but none have been recommended since the early 1970's. Small

agricultural producers have been defined by the Small Business

Administration (13 CFR 121.601) as those having annual receipts of less

than $500,000, and small agricultural service firms are defined as

those whose annual receipts are less than $5,000,000. The majority of

the remaining South Texas tomato producers and handlers may be

classified as small entities.

The order was initially established in March 1959, to help the

industry solve its marketing problems and maintain orderly marketing

conditions. It was the responsibility of the Texas Valley Tomato

Committee (committee), the agency established for local administration

of the marketing order, to periodically investigate and assemble data

on the growing, harvesting, shipping, and marketing conditions of

tomatoes. The committee endeavored to achieve orderly marketing and

improve acceptance of Texas tomatoes through establishment of minimum

size and quality requirements. When regulated, fresh tomato shipments

consisted only of those grades and sizes desired by consumers, thus,

tending to increase returns to producers and handlers.

During the first year the order was in effect, there were 2,488

producers and 61 handlers of South Texas tomatoes. Over the years,

commercial production and handling of tomatoes grown in South Texas

have declined significantly. As a consequence, handling requirements

have not been applied since the early 1970's and there is no indication

that the industry will be revived or that regulations will be needed.

In September 1994, the Department conducted interviews with former

and remaining industry members to determine whether they expected a

revival of South Texas tomato production in the next two years.

Industry members did not give any indication that the industry would be

revived. Former industry members that were interviewed stated that they

did not plan to resume tomato production. They reported that the

decline in the industry was caused by a lack of new tomato varieties

adaptable to South Texas, which could make it more competitive with

Mexico and Florida.

Further, as stated above, there are currently only 10 producers, 5

of which are also handlers. Without an adequate number of producers and

handlers, the Department cannot appoint the required committee of

members and alternates, or otherwise continue the operation of the

order.

The committee holds a certificate of deposit in the amount of

$3,778.16, which matures on September 23, 1995, and a savings account

that totals $514.23. At the last meeting in 1991, the committee

recommended that any funds exceeding the expense of termination should

be donated to an institution that conducts research for agriculture in

the Lower Rio Grande Valley of South Texas.

Therefore, based on the foregoing, pursuant to Sec. 608c(16)(A) of

the Act and Sec. 965.84 of the order, the Department is considering the

termination of Marketing Order No. 965, covering tomatoes grown in the

Lower Rio Grande Valley in Texas. If the Secretary decides to terminate

the order, trustees would be appointed to continue in the capacity of

concluding and liquidating the affairs of the former committee, until

discharged by the Secretary.

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

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

order.

Based on the foregoing, the Administrator of the AMS has determined

that this action would not have a significant impact on a substantial

number of small entities.

List of Subjects in 7 CFR Part 965

Marketing agreements, Reporting and recordkeeping requirements,

Tomatoes.

For the reasons set forth in the preamble, 7 CFR part 965 is

proposed to be removed.

PART 965--[REMOVED]

1. The authority citation for 7 CFR part 965 continues to read as

follows:

Authority: 7 U.S.C. 601-674.

2. Accordingly, 7 CFR part 965 is removed.

Dated: June 20, 1995

Lon Hatamiya,

Administrator.

[FR Doc. 95-15509 Filed 6-23-95; 8:45 am]

BILLING CODE 3410-02-P