[Federal Register Volume 66, Number 163 (Wednesday, August 22, 2001)]
[Proposed Rules]
[Pages 44086-44089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21176]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 66, No. 163 / Wednesday, August 22, 2001 / 
Proposed Rules  

[[Page 44086]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 982

[Docket No. FV01-982-3 PR]


Hazelnuts Grown in Oregon and Washington; Establishment of 
Reporting Requirements for Imported Hazelnuts

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would establish reporting requirements for hazelnuts 
imported by handlers of hazelnuts grown in Oregon and Washington. The 
rule would require handlers to report the receipt and disposition of 
hazelnuts grown outside of the United States and was recommended by the 
Hazelnut Marketing Board (Board), the agency responsible for local 
administration of the marketing order regulating the handling of 
hazelnuts grown in Oregon and Washington. This rule also announces the 
Agricultural Marketing Service's (AMS) intention to request a revision 
to the currently approved information collection requirements issued 
under the marketing order. This proposed reporting requirement would 
provide the Board with more accurate information on the total supply of 
hazelnuts being handled in Oregon and Washington. This would facilitate 
the Board's preparation of its annual marketing policy and would help 
in its ability to track both domestic and foreign product.

DATES: Comments must be received by October 22, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, PO Box 96456, room 2525-S, Washington, DC 20090-6456; Fax: 
(202) 720-8938; or E-mail: [email protected]. All 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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, 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; telephone: (503) 326-
2724; Fax: (503) 326-7440; or George Kelhart, Technical Advisor, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, PO Box 96456, room 2525-S, Washington, DC 20090-6456; 
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, PO Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 
720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreement No. 115 and Order No. 982 both as amended (7 CFR part 982), 
regulating the handling of hazelnuts grown in Oregon and Washington, 
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 (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposal 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 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.
    This rule would establish reporting requirements for hazelnuts 
imported by handlers of hazelnuts grown in Oregon and Washington. The 
rule would require handlers to report the receipt and disposition of 
hazelnuts grown outside of the United States. The proposed reporting 
requirement would provide the Board with more accurate information on 
the total supply of hazelnuts being handled in Oregon and Washington.
    At its November 14, 2000, meeting, the Board passed a general 
recommendation to require handlers to report imported hazelnuts. After 
developing procedures and a form necessary for implementation, the 
Board submitted its recommendation to the Department in May 2001.
    Sections 982.64 through 982.67 of the order currently authorize the 
Board to require certain specific reports from handlers, including 
creditable promotion and advertising reports, carryover reports, 
shipment reports, and reports on the disposition of restricted 
hazelnuts. Section 982.68 of the order provides additional authority 
for the Board, with the approval of the Secretary, to require such 
other reports as the Board may require to perform its duties under the 
order.
    The Board believes that more accurate information on the total 
supply of hazelnuts moving in and out of Oregon and Washington--both 
foreign and domestic product--would facilitate the administration of 
the order. The Board would use this information to more efficiently 
track the receipt and disposition of hazelnuts by handlers in Oregon 
and Washington. Furthermore, the Board would use this information in

[[Page 44087]]

its marketing policy deliberations each fall when it reviews the crop 
estimate, handler carryover, and other factors to determine whether 
volume regulation would be appropriate. In addition, the Board is 
concerned that imported hazelnuts might be included in handler 
inventory reports of Oregon and Washington hazelnuts.
    In addition to the domestic crop, of which 100 percent is produced 
in Oregon and Washington, hazelnuts are imported into the United States 
from Canada and Turkey, and occasionally from Italy. Hazelnuts produced 
in Oregon and Washington generally represent from 3 to 5 percent of the 
world crop. According to USDA statistics, the majority of hazelnuts 
imported into the United States are in kernel form, of which about 96 
percent are from Turkey. A small percentage of imports are inshell 
hazelnuts and generally are from British Columbia, Canada, and enter 
the U.S. through Washington State. Although information pertaining to 
the quantity of imported hazelnuts is currently available, information 
specific to the receipt and disposition by Oregon and Washington 
hazelnut handlers is lacking.
    A major concern of the Board is the inshell hazelnuts imported from 
Canada by Oregon and Washington handlers. As production in Canada has 
increased, there has been an increase in Canadian hazelnuts imported 
into Oregon and Washington. These hazelnuts are generally the same 
variety (Barcelona) as are produced in Oregon and Washington. If these 
hazelnuts are placed in the domestic inshell market without its 
knowledge, the Board's marketing policy calculations could be 
inaccurate. The Board wants to collect import hazelnut data to see how 
much is being imported and disposed of by domestic handlers.
    According to the National Agricultural Statistics Service, the 10-
year average annual production of hazelnuts grown in Oregon and 
Washington is 29,800 inshell tons. Of that total, an average of 4,253 
tons was sold in the domestic market. Furthermore, according to the 
Foreign Agricultural Service, imports during the same 10-year period 
averaged 316 tons. The five-year average for imports is 534 tons, 
however, indicating the increase may well be significant enough to 
impact the inshell domestic market.
    The proposed report, F/H Form 1f, would be submitted to the Board 
monthly when imported hazelnuts are received and shipped by the handler 
to a buyer in the United States or exported inshell or shelled. The 
Board estimates that these reports would only be submitted five times 
per year by each importing handler. The report would include the 
quantity of such hazelnuts received, country of origin, inspection 
certificate number, whether such hazelnuts were inshell or kernels, the 
disposition outlet (domestic, export, inshell, or shelled, etc.), and 
the shipment date of such hazelnuts.
    The Board also recommended that, with each report, the handler 
submit a copy of the inspection certificate issued by the Federal-State 
Inspection Service (FSIS) for compliance purposes. The inspection 
certificate would indicate the name of the person from whom the 
hazelnuts were received, the date the hazelnuts were received by the 
handler, the number of tons and U.S. Custom Service entry number, 
whether the product is inshell or shelled, the quantity of hazelnuts, 
country of origin, the name of the FSIS inspector who issued the 
certificate, and the date such certificate was issued. The Board 
believes inspection certificates are necessary to verify handler 
receipt and disposition reports for imported hazelnuts.

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 rule 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 800 growers of hazelnuts in the production 
area and approximately 24 handlers subject to regulation under the 
order. Small agricultural growers are defined by the Small Business 
Administration (SBA) (13 CFR 121.201) 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.
    Based on the SBA definition, the Board estimates that 21 of the 24 
handlers and all of the growers are small entities. Board records show 
that in the 1999-2000 marketing year approximately 9 percent of the 
handlers shipped over 7,692,308 pounds of hazelnuts, and 91 percent of 
the handlers shipped under 7,692,308 pounds of hazelnuts. Thus, based 
on an average price of $0.65 per pound at the point of first sale, it 
can be concluded that the majority of hazelnut handlers may be 
classified as small entities, excluding receipts from other sources.
    Board 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, Board recommendations can be 
considered to represent the interests of small business entities in the 
industry.
    This rule would add a new Sec. 982.467 to the order's 
administrative rules and regulations which would require handlers to 
report to the Board the receipt and disposition of hazelnuts grown 
outside of the United States. This would provide the Board with more 
accurate information on the total available supply of hazelnuts--
foreign and domestic product--and would help facilitate program 
administration. Authority for requiring handlers to submit this 
information to the Board is provided in Sec. 982.68 of the order.
    Regarding the impact of the proposed action on affected entities, 
this rule should impose minimal additional costs. The Board estimates 
that about five handlers have imported hazelnuts over the past few 
years. Such handlers would be required to submit an additional monthly 
report to the Board when imported hazelnuts are received and shipped, 
along with inspection certificates or other information required by the 
Board for verification purposes. The Board estimates that each affected 
handler would submit about five of these reports annually.
    An alternative to the proposal would be to continue the current 
practice of not collecting information from handlers on the receipt and 
disposition of imported hazelnuts. However, as previously mentioned, 
the Board believes it can better administer the order by obtaining more 
accurate information on the total available supply of hazelnuts being 
received and disposed of by Oregon and Washington handlers, including 
foreign and domestic product. The only way this information can be 
obtained by the Board is to directly collect it from handlers. This 
information would facilitate program administration by improving the 
Board's base of information from which to make decisions.

[[Page 44088]]

    Another alternative the Board considered was whether it would be 
useful to collect information on hazelnuts grown outside of Oregon and 
Washington, but within the United States. However, Board members agreed 
that the quantity of domestic hazelnuts grown outside the production 
area and handled by regulated handlers is insignificant commercially, 
and, therefore, not needed.
    If implemented, this proposed rule would impose and added reporting 
and recordkeeping burden on handlers that receive hazelnuts from 
outside of the United States. The Board has estimated that five 
handlers may import hazelnuts during the marketing year. Such handlers 
would be required to submit a receipt and disposition report (F/H Form 
1f) to the Board monthly when imported hazelnuts are received and 
shipped. The Board estimates that these reports would be submitted 
about five times per year per handler, and would require that each 
handler spend about five minutes to complete each report. Thus, the 
annual burden associated with this information collection should total 
no more than two hours for the industry. The information would be 
collected on F/H Form 1f. That form is being submitted to the Office of 
Management and Budget (OMB) for approval under OMB Control No. 0581-
0178 in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35).
    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. The Department has 
identified one relevant Federal rule regarding requirements for 
hazelnuts grown outside of the United States. Under section 608e of the 
Act, whenever certain specified commodities are regulated under a 
Federal marketing order, imports of that commodity must meet the same 
or comparable grade, size, quality, and maturity requirements as those 
in effect for the domestic commodity. Hazelnuts are included under 
section 608e of the Act. Thus, importers of hazelnuts are required to 
have such hazelnuts inspected by the Federal-State inspection service. 
Importers whose hazelnuts meet section 608e requirements do not have to 
submit any paperwork to the USDA. However, importers whose hazelnuts 
fail section 608e requirements, or whose hazelnuts are being sent to 
designated outlets (animal feed, processing, or charity) have to submit 
paperwork to the USDA. Only a small amount of information required by 
the USDA in these instances or by the Board through this rule would be 
duplicative.
    In addition, the Board's meeting was widely publicized throughout 
the hazelnut industry and all interested persons were invited to attend 
the meeting and participate in Board deliberations on all issues. Like 
all Board meetings, the November 14, 2000, meeting was a public meeting 
and all entities, both large and small, were able to express views on 
this issue. 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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the AMS is seeking Office of Management and Budget (OMB) 
approval for F/H Form 1f. This form will be used under the marketing 
order for hazelnuts grown in Oregon and Washington. The collection 
requirements for the hazelnut marketing order are included in the 
vegetable and specialty crops information collection package.
    Title: Vegetable and Specialty Crops.
    OMB Number: 0581-0178.
    Expiration Date of Approval: April 30, 2004.
    Type of Request: Revision of a currently approved information 
collection.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act, to provide the 
respondents the type of service they request, and to administer the 
Oregon-Washington hazelnut marketing order program, which has been 
operating since 1949. On November 14, 2000, the Board passed a general 
recommendation to require handlers to report to the Board the receipt 
and disposition of hazelnuts grown outside of the United States. After 
developing procedures and the form needed for implementation, the Board 
submitted its recommendation in May 2001. This information would be 
reported on F/H Form 1f. This notice concerns this report, in addition 
to the accompanying regulation previously discussed regarding requiring 
this report be submitted by handlers to the Board.
    The Board would like to have better information on the total supply 
of hazelnuts available which includes both foreign and Oregon-
Washington product. The Board would use this information in its 
marketing policy deliberations each fall when it reviews the crop 
estimate, handler carryover, and other factors to determine whether 
volume regulation would be appropriate. In addition, the Board has some 
concerns that imported hazelnuts could be included in handler inventory 
reports of Oregon-Washington hazelnuts. Accurate information regarding 
the supply of hazelnuts is needed by the Board in its administration of 
the order.
    The information collected is used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable 
Programs regional and headquarter's staff, and authorized employees of 
the Board. Authorized Board employees and the industry are the primary 
users of the information and AMS is the secondary user.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 5 minutes per response.
    Respondents: Oregon-Washington hazelnut handlers who receive 
hazelnuts grown outside of the United States.
    Estimated Number of Respondents: 5.
    Estimated Number of Responses per Respondent: 5.
    Estimated Total Annual Burden on Respondents: 2 hours.
    Comments: Comments are invited on: (1) Whether the proposed 
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, 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 the Marketing Order 
for Hazelnuts grown in Oregon and Washington 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.

[[Page 44089]]

    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.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal.

List of Subjects in 7 CFR Part 982

    Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 982 is 
proposed to be amended as follows:

PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 982 continues to read as 
follows:

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

    2. A new Sec. 982.467 is added to read as follows:


Sec. 982.467  Report of receipts and dispositions of hazelnuts grown 
outside the United States.

    Each handler who receives hazelnuts grown outside the United States 
shall report to the Board monthly on F/H Form 1f the receipt and 
disposition of such hazelnuts. All reports submitted shall include 
transactions through the end of each month, or other reporting periods 
established by the Board, and are due in the Board office on the tenth 
day following the end of the reporting period. The report shall include 
the quantity of such hazelnuts received, the country of origin for such 
hazelnuts, inspection certificate number, whether such hazelnuts are 
inshell or kernels, the disposition outlet, and shipment date of such 
hazelnuts. With each report, the handler shall submit copies of the 
applicable inspection certificates.

    Dated: August 16, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-21176 Filed 8-21-01; 8:45 am]
BILLING CODE 3410-02-P