[Federal Register: August 16, 2004 (Volume 69, Number 157)]
[Rules and Regulations]
[Page 50286-50289]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au04-7]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 956
[Docket No. FV04-956-1 FIR]
Sweet Onions Grown in the Walla Walla Valley of Southeast
Washington and Northeast Oregon; Establishment of Special Purpose
Shipping Regulations and Modification of Reporting Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule that established procedures
to allow the grading, packing, or storing of Walla Walla sweet onions
outside the production area established under the Walla Walla sweet
onion marketing order, and modified handler reporting requirements. The
marketing order regulates the handling of sweet onions grown in the
Walla Walla Valley of Southeast Washington and Northeast Oregon and is
administered locally by the Walla Walla Sweet Onion Marketing Committee
(Committee). Allowing sweet onion market preparation to occur outside
the production area increases the marketing options for Walla Walla
sweet onions and may reduce marketing costs. Modification of the
reporting requirements contributes to the efficient operation of the
program and enhances compliance with the special purpose shipment
procedures established in this rule.
EFFECTIVE DATE: September 15, 2004.
FOR FURTHER INFORMATION CONTACT: Barry Broadbent, Marketing Specialist,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW., Third
Avenue, Suite 385, Portland, Oregon 97204-2807; Telephone: (503) 326-
2724; Fax: (503) 326-7440; or e-mail: Barry.Broadbent@usda.gov; or
George Kelhart, Technical Advisor, 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 rule is issued under Marketing
Agreement and Order No. 956, both as amended (7 CFR part 956),
regulating the handling of Walla Walla sweet onions grown in Southeast
Washington and Northeast Oregon, hereinafter referred to as the
``order.'' The order is 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 (USDA) is issuing this rule in
conformance with Executive Order 12866.
This 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 the 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 the 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 the 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.
Minimum grade, size, maturity, container, and pack requirements are
authorized under the order, but currently only container markings are
regulated. This rule continues in effect the implementation of
procedures and safeguard requirements that allow grading, packing, or
storing of Walla Walla sweet onions outside the production area, but
within the States of Oregon and Washington. Persons desiring to ship,
as well as those desiring to receive Walla Walla sweet onions for
grading, packing, or storing outside the production area must apply and
report to the Committee on forms provided by the Committee. This rule
also continues in effect the additional requirement that handlers must
submit a preseason registration form as well as provide additional
information on the handler's shipment statement.
Section 956.63 of the order provides authority for the USDA to
issue special regulations to facilitate the shipping of Walla Walla
sweet onions for grading, packing, or storing outside the production
area. Further, Sec. 956.66 provides authority for the establishment of
such safeguards as may be necessary to ensure that Walla Walla sweet
onions are shipped for the purpose so authorized. Reporting
requirements are authorized in Sec. 956.80.
The Committee met on December 8, 2003, and unanimously recommended
the establishment of procedures and safeguard requirements to allow the
grading, packing, or storing of Walla Walla sweet onions outside the
production area. At that meeting, the Committee also unanimously
recommended expanding the current handler reporting requirements to
include a preseason registration form. The Committee met again on
February 10, 2004, and made a unanimous recommendation to broaden the
scope of the handler shipment statement to include a listing of
producers whose product was handled and the quantity handled for each
producer. Committee members believe that this rule will: (1) Allow
shippers to use grading, packing, or storing facilities that will be
most beneficial to their individual circumstances; (2) contribute to
the efficient operation of the program by improving Committee
information; and (3) enhance compliance with the provisions of the
order.
The grading, packing, and storing costs associated with preparing
Walla Walla sweet onions for market may vary between onion packing
facilities inside and outside the production area. There may also be
differences in the type and variety of packaging options, the
transportation alternatives available, or
[[Page 50287]]
the level of services offered by individual onion packing facilities
inside and outside the production area. This rule allows shippers of
Walla Walla sweet onions the flexibility to pack and ship product from
the most advantageous facility available, regardless of where in Oregon
or Washington that facility is located.
Some examples of situations in which this rule benefits the
industry are: (1) A packer outside the area of production is
experimenting with modified atmosphere packaging that increases the
shelf life of sweet onions; (2) a Walla Walla sweet onion producer is
part owner of a packing facility located outside the area of production
and wishes to pack and store sweet onions in that facility; (3) a
packing facility outside the area of production can offer rail service
for shipping and a rail siding is not available within the production
area; and (4) a fresh produce marketing company that has a packing
facility outside the area of production desires to begin packing and
shipping Walla Walla sweet onions.
The Committee believes that the regulations established under the
order create orderly marketing, are good for consumers, encourage
repeat purchases, and ultimately improve returns to producers.
Therefore, the Committee recommended the establishment of safeguards to
ensure that all Walla Walla sweet onions graded, packed, or stored
outside the production area are ultimately subject to the requirements
established under the order.
Persons desiring to ship or receive Walla Walla sweet onions for
grading, packing, or storing outside the production area must apply to
the Committee on a Shippers/Receivers Application for Certificate of
Privilege, (SRACP) Form No. 3. Applicants must complete and submit a
SRACP form each year prior to shipping or receiving Walla Walla sweet
onions for grading, packing, or storing outside the production area.
Information collected on the application includes the company name,
contact name, address, contact telephone numbers, signature of the
shipper or receiver, date, and such other information as the Committee
may require. Applicants must agree to furnish reports on shipments of
sweet onions made under the Certificate of Privilege and must certify
that all shipments of production area onions for grading, packing, or
storing outside the production area will be made in accordance with
order provisions. Those parties acting as receivers under the
Certificate of Privilege must further agree to forward all assessments
due on sweet onions handled to the Committee office. If approved, the
Committee manager will sign the application, assign a Certificate of
Privilege number for tracking purposes, and return a copy of the
application to the applicant. If denied, the applicant will be notified
in writing of the reasons for denial and have an opportunity to appeal
the Committee's decision.
After the Committee approves the applications of both the shipper
and the receiver, Walla Walla sweet onions may be shipped out of the
production area for grading, packing, or storing. When the parties
conclude shipping or receiving, both the shipper and receiver must
submit to the Committee a Special Purpose Shipment Report, (SPSR) Form
No. 4. Information collected on the SPSR includes the Certificate of
Privilege number as assigned by the Committee, company name, contact
name, address, contact telephone numbers, names of the individuals or
companies shipped to or received from, the total quantities of onions
shipped or received in 50-pound equivalents, the signature of the
shipper or receiver, date, and such other information as the Committee
may require.
The SPSR, as well as any assessments due, must be submitted to the
Committee no later than 30 days after the date of the last shipment or
receipt of Walla Walla sweet onions under the Certificate of Privilege.
The SPSR also reiterates that it is the receiver of sweet onions
shipped under the Certificate of Privilege that is responsible for
payment of the administrative assessment. Shippers and receivers will
only be required to submit one (1) of these reports annually.
This rule also continues in effect increased handler-reporting
requirements by requiring the submission of a Walla Walla Sweet Onion
Handler Registration Form, (Registration) Form No. 2, and by expanding
the scope of the information required on the existing Handler's
Statement of Walla Walla Sweet Onion Shipments, (Form No. 1; Form FV-
141) (Statement). Each year prior to the shipping season, but in no
case later than May 31, all persons desiring to handle Walla Walla
sweet onions during the forthcoming season must complete a Registration
form and submit it to the Committee. Information collected on this form
includes: Company name, contact name, signature, date, addresses, and
contact telephone numbers; brands or labels to be marketed; estimated
acres of production to be packed; and such other information as the
Committee may require.
The previous Statement, which was submitted to the Committee at the
end of each shipping season, required handlers to report the quantity
of Walla Walla sweet onions handled during the season. This action
continues in effect the expansion of the information collected on the
Statement to include reporting the quantity of Walla Walla sweet onions
handled on behalf of each producer. Information collected on the
Registration and modified Statement forms will greatly enhance order
compliance by allowing the Committee to compare the collected data with
information from other sources for corroboration. This will ultimately
assist the Committee in monitoring onion shipments and in the
collection of assessments. For example, acreage and production
information voluntarily provided by producers will be reconciled with
similar information collected from handlers to help ensure that all
assessable sweet onion shipments have been properly reported and that
assessments have been correctly collected.
This information collection is important to the Committee in light
of the regulation relaxation that allows the grading, packing, or
storing of Walla Walla sweet onions outside the production area. The
Committee believes that enhancing the scope of the reporting
requirements is the best way to maintain oversight of the special
purpose shipment procedures as modified herein. In addition to
enhancing the Committee's compliance efforts, the collection of handler
profile information such as addresses and contact numbers will also be
useful to the Committee for maintaining contact with handlers
throughout the season.
Final 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 final 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.
There are approximately 28 handlers of Walla Walla sweet onions
subject to regulation under the order and approximately 37 Walla Walla
sweet onion producers in the regulated area.
[[Page 50288]]
Small agricultural service firms are defined by the Small Business
Administration (SBA) (13 CFR 121.201) as those having annual receipts
of less than $5,000,000, and small agricultural producers are defined
as those having annual receipts of less than $750,000.
The Committee estimates that in 2003, 674,038 50-pound containers
of Walla Walla sweet onions were marketed at an average FOB price of
about $11.50 per container. The total industry value at shipping point
was approximately $7,751,437, leaving an average annual gross receipt
per handler of $276,837. Thus, a majority of handlers and producers of
Walla Walla sweet onions may be classified as small entities.
Committee meetings are widely publicized in advance of the meetings
and are held in a location central to the production area. The meetings
are open to all industry members and other interested persons who are
encouraged to participate in the deliberations and voice their opinions
on topics under discussion. Thus, Committee recommendations can be
considered representative of small business interests in the industry.
This rule continues the implementation of procedures that allow
persons to ship or receive Walla Walla sweet onions outside the area of
production for grading, packing, or storing purposes. Persons desiring
to do so must first apply to the Committee. The applicants must certify
that all Walla Walla sweet onions graded, packed, or stored outside the
production area will meet any minimum grade, size, maturity, container,
pack, or inspection requirements established under the order.
Previously, only container, assessment, and reporting requirements were
implemented under the order. After the Committee completes its review
of the application and determines that everything is in order,
applicants will be granted a Certificate of Privilege authorizing them
to ship or receive Walla Walla sweet onions outside the production area
for market preparation. At the end of the shipping season, both the
shipper and receiver must submit reports to the Committee regarding the
quantity of Walla Walla sweet onions handled under Certificate of
Privilege. The authority for this action is provided in Sec. Sec.
956.63 and 956.66.
In addition, this rule continues in effect the expansion of the
handler reporting requirements by adding a preseason handler
registration form and expanding the scope of information required on
the handler's shipment report. These changes provide the Committee with
more comprehensive handler information that improves handler compliance
and enhances safeguards already in place. The additional information
gathered from the new mandatory report complements the modification to
the current reporting requirements and contributes to greater
efficiency in the operation of the program. The improved safeguards and
oversight afforded the Committee with these reporting requirement
changes are essential in maintaining compliance with procedures for
market preparation outside the production area. The authority for this
action is provided in Sec. 956.80.
Regarding the impact of this action on affected entities, this rule
imposes minimal additional costs. The Committee estimates that about 10
persons may desire to ship or receive Walla Walla sweet onions for
grading, packing, or storing outside the production area during each
marketing year. Such shippers and receivers must complete a Shippers/
Receivers Application for Certificate of Privilege, (Form No. 3) and
submit it to the Committee for approval each year prior to shipping or
receiving any Walla Walla sweet onions for grading, packing, or storing
outside the production area. Once the Committee has approved the
application, the parties will be free to handle sweet onions for market
preparation out of the production area.
After Walla Walla sweet onions have been handled pursuant to the
Certificate of Privilege, both the shipper and receiver must submit a
Special Purpose Shipment Report (Form No. 4), to the Committee no later
than 30 days after the date of the last shipment or receipt of onions.
The Committee estimates that 10 shippers and receivers will each be
obligated to submit one (1) of these reports annually. The annual
industry burden associated with the information collection on both
forms is estimated to total approximately 3.6 hours.
The addition of a preseason registration form and the expansion of
the existing reporting requirements for all Walla Walla sweet onion
handlers also imposes minimal additional costs on the industry. Persons
desiring to handle Walla Walla sweet onions must complete and submit a
Walla Walla Sweet Onion Handler Registration Form (Form No. 2), prior
to May 31 of each year. Handlers of sweet onions must also submit a
Handler's Statement of Walla Walla Sweet Onion Shipments (Form No. 1;
Form FV-141) that is more detailed than the one previously used. The
Committee estimates that 28 handlers are affected, with a total annual
industry burden of approximately 25.76 hours for both forms.
The Committee considered one alternative to the part of this
proposal that allows Walla Walla sweet onions to be graded, packed, or
stored out of the area. The alternative was to prohibit any grading,
packing, or storing of Walla Walla sweet onions outside the production
area. The Committee felt that this alternative would have limited the
flexibility of shippers in making marketing decisions related to the
grading, packing, or storing of Walla Walla sweet onions and it was
therefore rejected. Allowing the shipment of Walla Walla sweet onions
outside the production area for grading, packing, or storing is a
relaxation of order requirements and any costs related to additional
reporting is outweighed by the benefits of allowing such shipments.
The alternatives that the Committee discussed with regard to
increasing handler reporting requirements were: (1) Maintain the status
quo and make no changes in the reporting requirements; and (2) make the
submission of the registration form and producer information on the
shipment statement voluntary instead of mandatory. Both of these
options were rejected as not sufficiently addressing the need for
better handler information. Enhanced information collection will help
improve the Committee's ability to ensure industry compliance with the
order. This is especially important in light of the relaxation changes
in the order regulations allowing grading, packing, or storing outside
the production area.
This rule continues to impose an additional reporting and
recordkeeping burden on persons who ship or receive Walla Walla sweet
onions for grading, packing, or storing outside the production area.
This action requires three new Committee forms and modification of a
previous form. In accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. Chapter 35), the information collection requirements on
these three new Committee forms and the modification of the previous
form were approved by the Office of Management and Budget (OMB) under
OMB Control No. 0581-0221 on April 13, 2004.
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, as
noted in the initial regulatory flexibility analysis, USDA has not
identified any relevant Federal rules that duplicate, overlap or
conflict with this rule.
[[Page 50289]]
The Committee's meetings were widely publicized throughout the
sweet onion industry and all interested persons were invited to attend
the meetings and participate in Committee deliberations on all issues.
Like all Committee meetings, the December 8, 2003, and the February 10,
2004, meetings were public meetings and all entities, both large and
small, were able to express their views.
An interim final rule concerning this action was published in the
Federal Register on April 26, 2004 (69 FR 22377). Copies of the rule
were mailed by the Committee's staff to all Committee members and Walla
Walla sweet onion handlers. In addition, the rule was made available
through the Internet by the Office of the Federal Register and the
USDA. That rule provided a 60-day comment period which ended June 25,
2004. No comments were received.
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.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
finalizing the interim final rule, without change, as published in the
Federal Register (69 FR 22377, April 26, 2004) will tend to effectuate
the declared policy of the Act.
List of Subjects in 7 CFR Part 956
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
PART 956--SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST
WASHINGTON AND NORTHEAST OREGON
0
Accordingly, the interim final rule amending 7 CFR part 956 which was
published at 69 FR 22377 on April 26, 2004, is adopted as a final rule
without change.
Dated: August 10, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-18612 Filed 8-13-04; 8:45 am]
BILLING CODE 3410-02-P