[Federal Register Volume 72, Number 32 (Friday, February 16, 2007)]
[Rules and Regulations]
[Pages 7549-7551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2724]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 958

[Docket No. AMS-FV-06-0179; FV06-958-1 FIR]


Onions Grown in Certain Designated Counties in Idaho, and Malheur 
County, OR; Change in 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 changing 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 continues in effect the 
action that: Established 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; changed the reporting requirements for fresh onions for 
peeling, chopping, or slicing, and for special purpose shipments; and 
added ``disposal'' as a special purpose shipment.

DATES: Effective Date: March 19, 2007.

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: 
[email protected] or [email protected].
    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: [email protected].

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.''
    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 continues in effect the action that established 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; changed the reporting requirements for fresh onions for 
peeling, chopping, or slicing; changed the reporting requirements for 
special purpose shipments; and added ``disposal'' as a special purpose 
shipment. 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

[[Page 7550]]

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 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) and will be submitted by handlers to report 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 thus avoid reporting requirements. The 
Committee received information that handlers in the production area may 
have lost sales due to receiver reporting requirements.
    This rule also continues in effect the action that changed 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 includes type of sale, 
total hundredweight for the sale, and the type of container for the 
sale. This form can be used to report multiple shipments.
    These changes are intended to enhance compliance with the special 
purpose shipment procedures established under the order and contribute 
to the efficient operation of the program.
    And finally, this rule continues in effect the action that 
reorganized the rules and regulations issued under this order by 
removing the heading ``Subpart--Assessment Rates'' and adding a new 
heading ``Subpart--Rules and Regulations.''

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 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, the majority of producers, handlers, and 
receivers of Idaho-Eastern Oregon onions may be classified as small 
entities.
    This rule continues in effect the action that added a new Sec.  
958.250, which establishes an application procedure for handlers to 
receive credit for assessments paid on onions in accordance with 
Sec. Sec.  958.42 and 958.240 that are subsequently regraded, resorted, 
repacked within the production area, or sent to exempt special purpose 
outlets. This rule also finalizes the action that added ``disposal'' as 
a special purpose shipment.
    The rule also continues in effect the action that changed 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 imposes minimal additional costs. This rule

[[Page 7551]]

continues in effect the action that established 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 should decrease the 
overall reporting burden. The benefits of this rule are not expected to 
be disproportionately greater or lesser 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 handlers were opposed 
to this alternative because it would increase their reporting burden.
    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. 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.
    AMS is committed to complying with the E-Government 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.
    The Committee has a number of appointed subcommittees to review 
certain issues and make recommendations 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.
    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.
    An interim final rule concerning this action was published in the 
Federal Register on November 7, 2006. Copies of the rule were mailed by 
the Committee's staff to all Committee members, onion handlers, and 
interested persons. In addition, the rule was made available through 
the Internet by USDA and the Office of the Federal Register. That rule 
provided for a 60-day comment period, which ended January 8, 2007. 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.

Paperwork Reduction Act

    The interim final rule published on November 7, 2006, provided a 
60-day period for comments on the reporting requirements in that rule. 
No comments were received. In accordance with the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), the information collection 
requirements that are contained in this rule were approved by OMB, 
under OMB No. 0581-0241, ``Onions Grown in Certain Designated Counties 
in Idaho, and Malheur County, Oregon, M.O. No. 958.''
    In summary, this rule continues in effect the actions that 
established 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; changed the reporting requirements for fresh onions 
for peeling, chopping, or slicing; added ``disposal'' as a special 
purpose shipment; and changed the reporting requirements for special 
purpose shipments. This rule continues in effect the actions that 
removed reporting requirements for receivers and streamlined handler 
reporting requirements. These changes should enhance compliance with 
the special purpose shipment procedures established under the marketing 
order and contribute to the efficient operation of the program.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
finalizing this interim final rule, without change, as published in the 
Federal Register (71 FR 65037, November 7, 2006) will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 958

    Marketing agreements, Onions, Reporting and recordkeeping 
requirements.

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

0
Accordingly, the interim final rule amending 7 CFR part 958, which was 
published at 71 FR 65037 on November 7, 2006, is adopted as a final 
rule without change.

    Dated: February 12, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E7-2724 Filed 2-15-07; 8:45 am]
BILLING CODE 3410-02-P