Melons Grown in South Texas; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 979

[Docket No. FV97-979-1 IFR]

Melons Grown in South Texas; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes an assessment rate for the

South Texas Melon Committee (Committee) under Marketing Order No. 979

for the 1996-97 and subsequent fiscal periods. The Committee is

responsible for local administration of the marketing order which

regulates the handling of melons grown in South Texas. Authorization to

assess Texas melon handlers enables the Committee to incur expenses

that are reasonable and necessary to administer the program.

DATES: Effective on October 1, 1996. Comments received by March 24,

1997, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent in triplicate to the Docket

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

2525-S, Washington, DC 20090-6456, FAX 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 available for public inspection in

the Office of the Docket Clerk during regular business hours.

FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Marketing

Specialist, McAllen Marketing Field Office, Fruit and Vegetable

Division, AMS, USDA, 1313 East Hackberry, McAllen, TX 78501, telephone

210-682-2833, FAX 210-682-5942, or Martha Sue Clark, Program Assistant,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456;

telephone 202-720-9918; 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

Division, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-

6456; telephone 202-720-2491; FAX 202-720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 156 and Order No. 979, both as amended (7 CFR part 979),

regulating the handling of melons grown in South Texas, 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 rule has been reviewed under Executive Order 12988, Civil

Justice Reform. Under the marketing order now in effect, South Texas

melon handlers are subject to assessments. It is intended that the

assessment rate as issued herein will be applicable to all assessable

melons beginning October 1, 1996, and continuing until amended,

suspended, or terminated. 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 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. Such 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 requirements set forth in the Regulatory Flexibility

Act (RFA), the Agricultural Marketing Service (AMS) has considered the

economic impact of this rule 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 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.

There are approximately 32 producers of South Texas melons in the

production area and approximately 24 handlers subject to regulation

under the marketing order. Small agricultural producers have been

defined by the Small Business Administration (13 CFR 121.601) 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. The majority of South Texas melon producers and handlers

may be classified as small entities.

The melon marketing order provides authority for the Committee,

with the approval of the Department, to formulate an annual budget of

expenses and collect assessments from handlers to administer the

program. The members of the Committee are producers and handlers of

South Texas melons. They are familiar with the Committee's needs and

with the costs for goods and services in their local area and are thus

in a position to formulate an appropriate budget and assessment rate.

The assessment rate is formulated and discussed in a public meeting.

[[Page 7660]]

Thus, all directly affected persons have an opportunity to participate

and provide input.

The Committee, in a telephone vote on September 25, 1996,

unanimously recommended 1996-97 administrative expenses of $100,000 for

personnel, office and the travel portion of the compliance budget.

These expenses were approved by the Department in October 1996. The

assessment rate and funding for the research projects and the road

guard station maintenance portion of the compliance budget were to be

recommended at a later Committee meeting.

The Committee subsequently met on December 17, 1996, and

unanimously recommended 1996-97 expenditures of $308,000 and an

assessment rate of $0.07 per carton of melons. In comparison, last

year's budgeted expenditures were $395,159. The assessment rate of

$0.07 is the same as last year's established rate. Major expenditures

recommended by the Committee for the 1996-97 fiscal period include

$84,500 for personnel and administrative expenses, $115,500 for

compliance, $64,000 for a melon disease management program, $33,125 for

breeding and variety development, and $10,875 for melon variety

evaluation. Budgeted expenses for these items in 1995-96 were $95,544,

$139,500, $86,716, $32,674, and $10,875, respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of South Texas

melons. Melon shipments for the year are estimated at 3,870,000

cartons, which should provide $270,900 in assessment income. Income

derived from handler assessments, along with interest income and funds

from the Committee's authorized reserve, will be adequate to cover

budget expenses. Funds in the reserve will be kept within the maximum

permitted by the order.

While this rule will impose some additional costs on handlers, the

costs are in the form of uniform assessments on all handlers. Some of

the additional costs may be passed on to producers. However, these

costs will be offset by the benefits derived by the operation of the

marketing order. Therefore, the AMS has determined that this rule will

not have a significant economic impact on a substantial number of small

entities. Interested persons are invited to submit information on the

regulatory and informational impacts of this action on small

businesses.

The assessment rate established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary upon recommendation and information submitted by the

Committee or other available information.

Although this assessment rate is effective for an indefinite

period, the Committee will continue to meet prior to or during each

fiscal period to recommend a budget of expenses and consider

recommendations for modification of the assessment rate. The dates and

times of Committee meetings are available from the Committee or the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department will

evaluate Committee recommendations and other available information to

determine whether modification of the assessment rate is needed.

Further rulemaking will be undertaken as necessary. The Committee's

1996-97 budget and those for subsequent fiscal periods will be reviewed

and, as appropriate, approved by the Department.

After consideration of all relevant material presented, including

the information and recommendation submitted by the Committee 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.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect, and that good cause exists for not postponing the effective

date of this rule until 30 days after publication in the Federal

Register because: (1) The Committee needs to have sufficient funds to

pay its expenses which are incurred on a continuous basis; (2) the

1996-97 fiscal period began on October 1, 1996, and the marketing order

requires that the rate of assessment for each fiscal period apply to

all assessable melons handled during such fiscal period; (3) handlers

are aware of this action which was unanimously recommended by the

Committee at a public meeting and is similar to other assessment rate

actions issued in past years; and (4) this interim final rule provides

a 30-day comment period, and all comments timely received will be

considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 959

Marketing agreements, Melons, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 979 is

amended as follows:

PART 979--MELONS GROWN IN SOUTH TEXAS

1. The authority citation for 7 CFR part 979 continues to read as

follows:

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

2. A new subpart titled ``Assessment Rates'' consisting of a new

Sec. 979.219 and a new subpart heading titled ``Handling Regulations''

are added immediately preceding Sec. 979.304, to read as follows:

Note: This section will appear in the Code of Federal

Regulations.

Subpart--Assessment Rates

Sec. 979.219 Assessment rate.

On and after October 1, 1996, an assessment rate of $0.07 per

carton is established for South Texas melons.

Dated: February 13, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97-4112 Filed 2-19-97; 8:45 am]

BILLING CODE 3410-02-P