FR Doc 06-9112

[Federal Register: November 7, 2006 (Volume 71, Number 215)]
[Rules and Regulations]
[Page 65037-65041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no06-1]

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Rules and Regulations
Federal Register
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[[Page 65037]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 958

[Docket No. FV06-958-1 IFR]

Onions Grown in Certain Designated Counties in Idaho, and Malheur
County, OR; Change in Reporting Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule changes the reporting requirements established under
the Idaho-Eastern Oregon onion marketing order, which regulates the
handling of onions grown in designated counties in Idaho and Oregon and
is administered locally by the Idaho-Eastern Oregon Onion Committee.
This rule: Establishes a credit application procedure for assessments
paid on onions that are subsequently regraded, resorted, or repacked
within the production area or diverted to exempt special purpose
outlets; changes the reporting requirements for fresh onions for
peeling, chopping, or slicing, and for special purpose shipments; adds
``disposal'' as a special purpose shipment; and announces the
Agricultural Marketing Service's (AMS) intention to request emergency
approval by the Office of Management and Budget (OMB) of a new
information collection. These changes are intended to enhance the
efficient operation of the program and improve compliance with the
other provisions.

DATES: Effective November 8, 2006; comments received by January 8, 2007
will be considered prior to issuance of a final rule. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
that would result from this proposal must be received by January 8,
2007.

ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, E-mail: moabdocket.clerk@usda.gov or
Internet: http://www.regulations.gov. All 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, or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Susan M. Hiller, Marketing Specialist
or Gary D. Olson, Regional Manager, Northwest Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or E-mail:
Susan.Hiller@usda.gov or GaryD.Olson@usda.gov.

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 No. 130 and Marketing Order No. 958, both as amended (7 CFR
part 958), regulating the handling of onions grown in designated
counties in Idaho, and Malheur County, 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 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 establishes an application procedure for handlers to
receive credit for assessments paid on onions that are subsequently
regraded, resorted, or repacked within the production area or diverted
to exempt special purpose outlets; changes the reporting requirements
for fresh onions for peeling, chopping, or slicing; changes the
reporting requirements for special purpose shipments; adds ``disposal''
as a special purpose shipment; and announces the Agricultural Marketing
Service's intention to request emergency approval by the Office of
Management and Budget (OMB) of a new information collection. These
actions were unanimously recommended by the Committee at a meeting on
June 15, 2006.
Section 958.53 provides authority for the Committee, with the
approval of USDA, to exempt special purpose shipments from assessment
and handling regulations established under the order. Under this
authority, Sec. 958.328(e) exempts onions for planting, livestock
feed, charity, dehydration, canning, freezing, extraction and pickling
from the minimum grade, size, maturity, assessment and inspection
requirements. Section 958.56 provides authority for the Committee, with
the approval of USDA, to prescribe safeguards to prevent onions from

[[Page 65038]]

entering channels of trade for other than the purpose authorized.
Safeguards in effect are delineated in Sec. 958.328(f). Section 958.65
provides authority for the Committee, with the approval of USDA, to
require such reports and other information as may be necessary for the
Committee to perform its duties.
The Committee conducted an industry-wide meeting on January 17,
2006, to review the compliance and safeguard provisions of the order.
The Committee appointed a Compliance Subcommittee, which met on May 16,
2006, to review the comments received. The three main areas of concern
expressed by industry members were: (1) The need to provide a procedure
for handlers to obtain credit for assessments paid on onions that are
subsequently regraded, resorted, or repacked within the production area
or diverted into exempt special purpose outlets; (2) improving the
method of reporting fresh market onions for peeling, chopping, or
slicing; and (3) improving and streamlining the safeguards for special
purpose shipments. An overriding concern expressed was the need to
decrease the reporting burden on receivers (buyers) of Idaho-Eastern
Oregon onions.
The Committee met on June 15, 2006, to hear the report of the
Compliance Subcommittee. The Committee thereafter unanimously
recommended changing the reporting requirements established under the
order to address these three areas of concern. The Committee
recommended adding a new Sec. 958.250 and a new form, ``Assessment
Credit Report'', which establishes a procedure for those handlers who
would like credit for assessments paid on onions in accordance with
Sec. Sec. 958.42 and 958.240 that are subsequently regraded, resorted,
or repacked within the production area, or shipped into special purpose
outlets. The Committee also recommended that ``disposal'' be added to
Sec. 958.328(e) as a special purpose to allow handlers to receive
assessment credit on onions for which assessments have been paid when
such onions are disposed of. Disposal means destroying the onions,
generally by burying the onions in special pits.
The Committee unanimously recommended changing the reporting
requirements for fresh onions for peeling, chopping, or slicing in
Sec. 958.328(d) by removing receiver reporting requirements.
Previously, the name of Form No. FV-37, was the ``Rehandling of Onions
Report'', which handlers found confusing and unrelated to the actual
activity. The form has been renamed ``Fresh Cut Report'' (same form
number) which will be submitted by handlers for multiple shipments
rather than individual shipments.
The Committee agreed with industry concerns that reporting burdens
should not be placed on the receivers of Idaho-Eastern Oregon onions.
Receivers are able to acquire onions from regions that do not have a
marketing order in effect and avoid reporting requirements. The
Committee received reports that handlers in the production area may
have lost sales due to receiver reporting requirements.
This rule will also change the safeguard reporting requirements in
Sec. 958.328(f) by clarifying that the safeguard procedures are
required only for onions shipped outside the Idaho-Eastern Oregon onion
production area.
Under the new safeguard procedures, with newly revised forms,
handlers will notify the Committee and obtain a Certificate of
Privilege permit number by completing form FV-34, ``Application to Make
Special Purpose Shipments--Certificate of Privilege.'' Receivers of
special purpose onions will only need to complete form FV-36, ``Special
Purpose Shipment Receiver Certification'' indicating they will use the
onions in an approved special purpose outlet. Receivers will no longer
be required to submit form FV-35, ``Onion Diversion Report'' for every
shipment. Handlers will submit additional information to the Committee
on form FV-34, ``Application to Make Special Purpose Shipments--
Certificate of Privilege.'' This information would include type of
sale, total hundredweight for the sale, and the type of container for
the sale. This form can be used for multiple shipments.
These changes are intended to enhance compliance of the special
purpose shipment procedures established under the order and contribute
to the efficient operation of the program.
And finally, this rule reorganizes the rules and regulations issued
under this order by removing the heading ``Subpart--Assessment Rates''
and adding a new heading ``Subpart--Rules and Regulations.''

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.
There are approximately 250 producers of onions in the production
area, 38 handlers, and 24 receivers subject to regulation under the
order. Small agricultural producers are defined by the Small Business
Administration (SBA) (13 CFR 121.201) as those having annual receipts
of less than $750,000, and small agricultural service firms are defined
as those whose annual receipts are less than $6,500,000.
The National Agricultural Statistics Service (NASS) reported in the
``Vegetables 2005 Summary'', published in January 2006, that the total
F.O.B. value of onions in the regulated production area for 2005 was
$148,685,000. Therefore, based on an industry of 250 producers, 38
handlers, and 24 receivers, it can be concluded that the majority of
producers, handlers, and receivers of Idaho-Eastern Oregon onions may
be classified as small entities.
This rule would add a new Sec. 958.250 which will establish an
application procedure for handlers to receive credit for assessments
paid on onions in accordance with Sec. Sec. 958.42 and 958.240 and are
subsequently regraded, resorted, repacked within the production area,
or sent to exempt special purpose outlets. This rule also adds
``disposal'' as a special purpose shipment.
The rule changes the reporting requirements for fresh onions for
peeling, chopping, or slicing and for special purpose shipments by
reducing receiver reporting requirements and streamlining handler
reporting requirements.
Regarding the impact of these actions on affected entities, this
rule will impose minimal additional costs. This rule establishes a
procedure to make it easier for handlers to apply for an assessment
credit. The change in the reporting requirements for fresh onions for
peeling, chopping, or slicing, as well as the change to the safeguards
for special purpose shipments were requested by industry members and
would decrease the overall reporting burden. The benefits of this rule
are not expected to be disproportionately greater or less for small
handlers or producers than for larger entities.
An alternative to these actions would be to have handlers report
onion shipments rather than utilizing the information from each
handler's inspection certificates. However, most

[[Page 65039]]

handlers were opposed to this alternative because it would increase
their reporting burden.
This action imposes an additional reporting burden on onion
handlers but eliminates reporting by receivers of onions. This action
requires a new Committee form and the revision of four Committee forms,
previously approved by OMB under OMB No. 0581-0178, Vegetable and
Specialty Crops.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), this notice announces that the AMS is requesting emergency
approval from the Office of Management and Budget (OMB) for a new
information collection request, under OMB No. 0581-NEW, and to revise
two forms previously approved under OMB No. 0581-0178, Vegetable and
Specialty Crops. The emergency request was necessary because
insufficient time was available to follow normal clearance procedures.
Upon approval of this new collection by OMB, it will be merged with the
forms currently approved for use under OMB No. 0581-0178.
As mentioned earlier, the Committee's reporting requirement
recommendations involves the revision of four previously approved
forms, under OMB No. 0581-0178, and the addition of one new form, under
OMB No. 0581-NEW. Two of the revised forms, FV-36, ``Special Purpose
Certificate for Handling Onions Which Do Not Meet Fresh Market
Requirements'', which has been renamed ``Special Purpose Shipment
Receiver Certification'', and FV-37, ``Rehandling of Onions Report'',
which has been renamed to ``Fresh Cut Report''; have been submitted to
OMB and were approved on July 12, 2006. The remaining two previously
approved forms which are being revised, FV-34, ``Application to Make
Special Purpose Shipments--Certificate of Privilege'', FV-35, ``Onion
Diversion Report'', and the new form ``Assessment Credit Report'', are
being submitted to OMB through an emergency approval request of a new
information collection. Upon approval, the new collection will be
merged into OMB No. 0581-0178, Vegetable and Specialty Crops.
Title: Onions Grown in Designated Counties in Idaho, and Malheur
County, Oregon.
OMB Number: 0581-NEW.
Expiration Date of Approval: Emergency request.
Type of Request: New collection.
Abstract: The information collection requirements in this request
are essential to provide handlers with a procedure to receive credit
for assessments paid on onions that are subsequently regraded,
resorted, or repacked within the production area, or shipped into
exempt special purpose outlets.
On June 15, 2006, the Committee unanimously recommended changing
the order's reporting requirements. This rule establishes an
application procedure for handlers to receive credit for assessments
paid on onions that are subsequently regraded, resorted, or repacked
within the production area or diverted to exempt special purpose
outlets. In order to receive a credit, handlers would complete the
``Assessment Credit Report'' and submit it to the Committee.
This rule also changes reporting requirements for fresh onions for
peeling, chopping, or slicing, by having handlers complete form FV-37,
``Fresh Cut Report.'' Finally, this rule changes the safeguards for
special purpose shipments. Handlers who desire to make a special
purpose shipment must complete form FV-34, ``Application to Make
Special Purpose Shipments--Certificate of Privilege.'' This form would
be completed for each volume or other sale of onions destined to be
shipped outside the production area to canners, dehydrators,
extractors, freezers, or picklers. The Committee will evaluate the
application and issue a Certificate of Privilege permit number, if
approved. The Committee may contact a receiver of a special purpose
shipment to verify each application by having the receiver complete
form FV-36, ``Special Purpose Shipment Receiver Certification.''
Finally, the handler will submit form FV-35, ``Onion Diversion
Report'', for each Certificate of Privilege permit number with the
frequency dependent upon the type of sale and container.
These changes are being made at the request of the industry to
provide a procedure for handlers to obtain credit for assessments paid
on onions that are subsequently regraded, resorted, or repacked within
the production area or diverted into exempt special purpose outlets.
These changes are also intended to improve the method of reporting
fresh market onions for peeling, chopping, or slicing; improve and
streamline the safeguards for special purpose shipments; and improve
compliance with the order. Committee members are confident that these
revisions will also improve the accuracy of the information submitted
while responding to the needs of the handlers for efficiency.
The information collected is used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable
Programs regional and headquarters' staff, and authorized employees of
the Committee. Authorized Committee employees and the industry are the
primary users of the information and AMS is the secondary user.
The request for approval of the new information collection under
the order is as follows:

``Assessment Credit Report''

Form FV-34, ``Application To Make Special Purpose Shipments--
Certificate of Privilege''

Form FV-35, ``Onion Diversion Report''

Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 8 minutes per response.
Respondents: Idaho-Eastern Oregon onion handlers.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: 100.
Estimated Total Annual Burden on Respondents: 260 hours.
Comments: Comments are invited on: (1) Whether this collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility,

[[Page 65040]]

and clarity of the information to be collected; and (4) ways to
minimize the burden of the collection of information on those who are
to respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments should reference OMB No. 0581-NEW and Onions Grown in
Designated Counties in Idaho, and Malheur County, Oregon, and be sent
to the USDA in care of the Docket Clerk at the address above. All
comments received will be available for public inspection during
regular business hours at the same address.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments will also become a matter of
public record. As mentioned before, because there was insufficient time
for a normal clearance procedure and prompt implementation is needed,
AMS is requesting emergency approval from OMB for the use of this
collection of forms for the 2006 regulation period, which began in
August 2006. Upon publication of the final rule, this collection will
be merged with the forms currently approved for use under OMB No. 0581-
0178 ``Generic OMB Vegetable Crops.''
As with other similar marketing order programs, reports and forms
are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. USDA has not
identified any relevant Federal rules that duplicate, overlap or
conflict with this rule.
AMS is committed to complying with the E-Government Elimination
Act, to promote the use of the Internet and other information
technologies to provide increased opportunities for citizen access to
Government information and services, and for other purposes.
Further, the Committee's meeting on June 15, 2006, was widely
publicized throughout the onion industry and all interested persons
were invited to attend the meeting and participate in Committee
deliberations. Like all Committee meetings, the June 15, 2006, meeting
was a public meeting and all entities, both large and small, were able
to express their views on this issue.
Also, the Committee has a number of appointed sub-committees to
review certain issues and make recommendation to the Committee. The
Compliance Subcommittee met on May 16, 2006, and discussed these issues
in detail. All interested persons were invited to attend this meeting
and participate in the industry's deliberations. Finally, interested
persons are invited to submit information on the regulatory and
informational impacts of this action on small businesses.
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.
In summary, this rule establishes an application procedure for
handlers to receive credit for assessments paid on onions that are
subsequently regraded, resorted, or repacked within the production area
or diverted to exempt special purpose outlets; changes the reporting
requirements for fresh onions for peeling, chopping, or slicing; adds
``disposal'' as a special purpose shipment; changes the reporting
requirements for special purpose shipments; and announces the
Agricultural Marketing Service's intention to request emergency
approval by the Office of Management and Budget (OMB) of a new
information collection. This rule removes reporting requirements for
receivers and streamlines handler reporting requirements. These changes
are beneficial to the compliance of the special purpose shipment
procedures established under the marketing order and contribute to the
efficient operation of the program. This rule invites comments on these
changes. Any comments received will be considered prior to finalization
of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
this interim final 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) This rule reduces industry reporting and recordkeeping
requirements; (2) the Idaho-Eastern Oregon onion marketing season began
in August and these changes should be in effect as soon as possible to
achieve their intended purpose; (3) the Committee unanimously
recommended these changes at a public meeting and interested parties
had an opportunity to provide input; (4) this rule provides a 60-day
comment period on the regulation changes which is deemed appropriate,
and a 60-day comment period on the reporting requirement changes, and
any comments received will be considered prior to finalization of this
rule.

List of Subjects in 7 CFR Part 958

Onions, Marketing agreements, Reporting and recordkeeping
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 958 is amended as
follows:

PART 958--ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND
MALHEUR COUNTY, OREGON

0
1. The authority citation for 7 CFR part 958 continues to read as
follows:

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

0
2. Add new subpart heading ``Subpart--Rules and Regulations'' before
``Sec. 958.112 Fiscal Period.''

0
3. Remove Subpart heading ``Subpart--Assessment Rates'' after Sec.
958.160.

0
4. Add a new Sec. 958.250 under subpart Rules and Regulations to read
as follows:

Sec. 958.250 Assessment Credit Report.

Each handler may receive a credit for assessments on onions that
have been levied in accordance with Sec. Sec. 958.42 and 958.240 and
are subsequently regraded, resorted, or repacked within the production
area, or shipped in accordance with Sec. 958.328(e) by furnishing the
``Assessment Credit Report'' and such other information as required to
the committee.

0
5. Revise paragraphs (d), (e) and (f) of Sec. 958.328 to read as
follows;

Sec. 958.328 Handling regulation.

* * * * *
(d) Onions for peeling, chopping, or slicing. Onions that have been
inspected and certified as meeting the requirements of paragraphs (a)
and (b) of this section and that are subsequently peeled, chopped, or
sliced for fresh market within the production area may be handled
without reinspection: Provided the following:
(1) Each handler making shipments of onions for alteration or
performing alteration by peeling, chopping, or slicing must furnish the
committee the following information on the ``Fresh Cut Report'' and
such other documents as required:

[[Page 65041]]

(i) Business name, address, telephone number, signature, and the
date the form was signed;
(ii) The date of peeling, chopping, or slicing;
(iii) Inspection certificate number;
(iv) The quantity of onions; and
(v) Such other information as may be required by the committee.
(2) Handlers who peel, chop, or slice onions produced outside the
production area must provide the committee with documentation showing
that the onions so prepared were produced outside the production area.
(e) Special purpose shipments. The minimum grade, size, maturity,
assessment, and inspection requirements of this section shall not be
applicable to shipments of onions for any of the following purposes:
(1) Planting,
(2) Livestock feed,
(3) Charity,
(4) Dehydration,
(5) Canning,
(6) Freezing,
(7) Extraction,
(8) Pickling, and
(9) Disposal.
In addition, the minimum grade, size, and maturity requirements set
forth in paragraph (a) of this section shall not be applicable to
shipments of pearl onions, but the maximum size requirement in
paragraph (h) of this section and the assessment and inspection
requirements shall be applicable to shipments of pearl onions.
(f) Safeguards. Each handler making shipments of onions outside the
production area for dehydration, canning, freezing, extraction, or
pickling pursuant to paragraph (e) of this section shall:
(1) Furnish ``Application to Make Special Purpose Shipments--
Certificate of Privilege'' and such other information to the committee
as required. The committee will review and verify each ``Application to
Make Special Purpose Shipments--Certificate of Privilege'' and notify
the handler of approval or disapproval. The committee may contact the
receiver or receiver's agent of the special purpose shipment for
verification and request the receiver or receiver's agent to complete a
``Special Purpose Shipment Receiver Certification'';
(2) Bill or consign each shipment directly to the applicable
receiver or receiver's agent of the special purpose shipment;
(3) Furnish ``Onion Diversion Report'' and such other information
to the committee as required. Failure of the handler to furnish such
report and information as required to the committee may be cause for
cancellation of such handlers' Certificate of Privilege. Upon
cancellation of any such Certificate of Privilege the handler may
appeal to the committee for reconsideration. The committee may audit a
receiver or receiver's agent of the special purpose shipment to verify
reports and information submitted by handlers. Failure of a receiver or
receiver's agent of a special purpose shipment to comply with the
committee may be cause for cancellation of the receiver's or receiver
agent's eligibility to receive further special purpose shipments from
the production area. Upon cancellation of any such Certificate of
Privilege the receiver or the receiver's agent may appeal to the
committee for reconsideration.
* * * * *

Dated: November 3, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-9112 Filed 11-3-06; 11:11 am]

BILLING CODE 3410-02-P