[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Rules and Regulations]
[Pages 58200-58201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28771]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 965

[Docket No. FV95-965-1FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Termination order.

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SUMMARY: This document terminates 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. Thus, 
there is no need for the Department of Agriculture to continue 
operation of the order.

EFFECTIVE DATE: December 27, 1995.

FOR FURTHER INFORMATION CONTACT: James B. Wendland, Marketing Order 
Administration Branch, Fruit and 

[[Page 58201]]
Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, 
DC 20090-6456, telephone (202) 720-2170, or Fax (202) 720-5698, or 
Belinda G. Garza, McAllen Marketing Field Office, Fruit and Vegetable 
Division, AMS, USDA, 1313 East Hackberry, McAllen, Texas 78501, 
telephone (210) 682-2833, or Fax (210) 682-5942.

SUPPLEMENTARY INFORMATION: This action is governed by the provisions of 
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. 965.84 of the order.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    The termination of the order has been reviewed under Executive 
Order 12778, 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 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 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 
$3,868.35, which matures on September 23, 1995, and a savings account 
that totals $524.08. At the last meeting in 1991, the committee 
chairperson suggested 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 in Texas.
    On June 26, 1995, the Department published a proposed rule in the 
Federal Register (60 FR 32922) to terminate the order and invited 
public comment through July 26, 1995. No comments were received.
    Therefore, based on the foregoing, pursuant to section 608c(16)(A) 
of the Act and Sec. 965.84 of the order, it is found that Marketing 
Order No. 965, covering tomatoes grown in the Lower Rio Grande Valley 
in Texas, does not tend to effectuate the declared policy of the Act 
and is hereby terminated. The Secretary hereby appoints former 
chairperson of the committee, Heino Brasch of Donna, Texas; and Belinda 
G. Garza and James B. Wendland, both of the Marketing Order 
Administration Branch, as trustees 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. Congress was so notified on September 8, 1995.
    Based on the foregoing, the Administrator of the AMS has determined 
that this action will 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.

PART 965--TOMATOES GROWN IN THE LOWER RIO GRANDE VALLEY IN TEXAS 
[REMOVED]

    For the reasons set forth in the preamble, and under the authority 
of 7 U.S.C. 601-674, 7 CFR part 965 is removed.

    Dated: November 20, 1995.
Shirley R. Watkins,
Acting Assistant Secretary Marketing and Regulatory Programs.
[FR Doc. 95-28771 Filed 11-24-95; 8:45 am]
BILLING CODE 3410-02-P