[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Proposed Rules]
[Pages 35997-36000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15445]


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 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. 76, No. 119 / Tuesday, June 21, 2011 / 
Proposed Rules  

[[Page 35997]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 958

[Doc. No. AMS-FV-11-0025; FV11-958-1 PR]


Onions Grown in Certain Designated Counties in Idaho, and Malheur 
County, OR; Modification of Handling Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on revisions to the handling 
regulation for onions handled under the Idaho-Eastern Oregon onion 
marketing order. The marketing order regulates the handling of onions 
grown in designated counties in Idaho, and Malheur County, Oregon, and 
is administered locally by the Idaho-Eastern Oregon Onion Committee 
(Committee). This rule would revise the marketing order's handling 
regulation to allow special purpose shipments of onions for 
experimentation. The revision would allow the Idaho-Eastern Oregon 
onion industry to identify and develop new market niches and is 
expected to benefit producers, handlers, and consumers of onions. This 
proposal also announces the Agricultural Marketing Service's (AMS) 
intent to request a revision of the currently approved information 
collection requirements under the order.

DATES: Comments must be received by August 22, 2011.

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, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document 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.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Barry Broadbent or Gary D. Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 805 SW., Broadway, 
Suite 930, Portland, OR 97205; 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 Laurel May, 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 certain 
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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under Sec.  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 proposed rule invites comments on revisions to the handling 
regulation for onions handled under the order. Specifically, this rule 
would revise the handling regulation to allow special purpose shipments 
of onions for the purpose of experimentation without regard to the 
minimum grade, size, maturity, pack, and inspection requirements of the 
order. The revision would give the Idaho-Eastern Oregon onion industry 
the opportunity to identify and develop new markets. The changes are 
expected to benefit producers, handlers, and consumers of onions. This 
rule was unanimously recommended by the Committee at its January 20, 
2011, meeting.
    Sections 958.42, 958.51, 958.52, and 958.60 of the order provide 
authority for assessment, mandatory inspection, and establishment of 
grade, size, quality, maturity, and pack regulations applicable to the 
handling of onions. Section 958.53 of the order provides authority for 
the issuance of special regulations, or the modification, suspension, 
or termination of requirements in effect pursuant to Sec. Sec.  958.42, 
958.52, 958.60, or any combination thereof, in order to facilitate the 
handling of onions for certain specified purposes.
    Section 958.328 establishes minimum requirements for onions handled 
subject to the order. Currently, no person shall handle any lot of 
onions unless such onions are inspected, are at least ``moderately 
cured'', and meet the grade, size, maturity, and pack requirements of 
paragraphs (a), (b), and (c). Paragraph (e) delineates specific types 
of special purpose shipments that are exempt from the requirements of 
the order. Paragraph (f) outlines the safeguards for such special 
purpose shipments.
    The Committee recommended the proposed revision to the handling

[[Page 35998]]

regulations to respond to the industry's desire to have greater 
flexibility in identifying and pursuing unique marketing opportunities 
for onions that do not conform to the requirements of the order. The 
concern from the onion industry is that onion producers and handlers 
within the order's production area are at a competitive disadvantage, 
relative to other onion producing regions, with respect to their 
ability to identify and develop new markets for non-standard onions. 
Adding authority to allow experimental onion shipments under the order 
would give handlers access to markets not currently available to them.
    An example of a scenario that would demonstrate the benefits of 
such a provision to the industry would be a handler's desire to produce 
and ship a unique, irregularly shaped small onion (i.e., a heart or a 
square shape) targeted for a newly developed niche market. Since 
irregular shape is a physical characteristic that does not conform to 
the order's grade requirements, such onions would ordinarily not be 
allowed to be handled under the marketing order. With an exemption for 
experimentation, however, the Committee could allow the shipment of 
those specific type onions while still maintaining the integrity of the 
order. Should the market for such onions grow to a significant size, 
the Committee could then incorporate changes into the handling 
regulations to accommodate their handling without the continued need 
for an exemption.
    The potential for marketing opportunities like the one described 
above motivated the Committee to recommend modifying the handling 
regulation to add ``experimentation'' to the already established list 
of special purpose shipments allowed under the order. Shipments for 
experimental purposes would be exempt from the grade, size, maturity, 
pack, and inspection requirements of the handling regulation. Shipments 
made under the experimental exemption would continue to be subject to 
the assessment requirement of the order. With a special purpose 
shipment provision for experimentation, handlers would have greater 
flexibility in pursuing various types of unique marketing opportunities 
that are currently not available under the handling regulation.
    The Committee would require handlers to request pre-approval for 
such experimental exemptions. Through the approval process, the 
Committee would be able to regulate the quantity and timing of such 
shipments. It is the goal of the Committee that any experimental 
shipments of onions would be temporary in nature. At the point that the 
emerging experimental market were to reach a sufficient volume or 
continue for such a length of time as to be deemed sustainable by the 
Committee, the Committee could then recommend changes to the handling 
regulation requirements to accommodate the marketing of such onions on 
a permanent basis.

Initial Regulatory Flexibility Analysis

    Pursuant to the 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 rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 35 handlers of Idaho-Eastern Oregon onions 
who are subject to regulation under the order and about 250 onion 
producers in the regulated area. Small agricultural service firms, 
which include onion handlers and receivers, are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts of less than $7,000,000, and small agricultural producers are 
defined as those whose annual receipts are less than $750,000.
    The National Agricultural Statistics Service (NASS) reported in the 
``Vegetables 2010 Summary,'' published in January 2011, that the total 
F.O.B. value of onions in the regulated production area for 2010 was 
$133,041,000. Based on an industry estimate of 35 handlers, the average 
value of onions handled per handler is $3,801,000, well below the SBA 
threshold for defining small agricultural service firms. In addition, 
based on an industry estimate of 250 producers, the average F.O.B. 
value of onions produced in the industry is $532,164 per producer. 
Since the F.O.B. value is usually significantly higher than the farm 
gate value that the producers actually receive, most onion producers 
within the order's production area would be considered small 
agricultural producers under the SBA definition. Therefore, it can be 
concluded that the majority of handlers and producers of Idaho-Eastern 
Oregon onions may be classified as small entities as defined by the 
SBA.
    This rule would revise Sec.  958.328(e) of the order's handling 
regulation to allow special purpose shipments of onions for the purpose 
of experimentation without regard to the minimum grade, size, maturity, 
pack, and inspection requirements currently prescribed under paragraphs 
(a), (b), and (c) of Sec.  958.328. The recommended revision would 
allow the Idaho-Eastern Oregon onion industry to identify and develop 
new markets for non-standard onions that are currently not open to 
them. The changes are expected to benefit producers, handlers, and 
consumers of onions.
    At the January 20, 2011 meeting, the Committee discussed the impact 
of the recommended changes on handlers and producers in terms of 
increased costs. The Committee believes that, since this proposed 
change exempts certain shipments of onions from regulation, this action 
would not add any additional requirements or costs relative to the 
existing regulation. Since the utilization of the special purpose 
shipment provision is voluntary in nature, any additional regulatory 
burden placed on a handler as a result of this proposed rule would be 
by their choice. The proposed changes may, however, create 
opportunities for producers and handlers to develop new markets and to 
enhance revenues. The Committee believes that the potential benefit 
associated with this proposed action outweighs any potential increase 
in administrative cost or regulatory burden incurred by the handler.
    The Committee discussed various alternatives to adding experimental 
shipments to the list of special purpose shipment exemptions contained 
in the order's handling regulation. Some members suggested that the 
provision was too broad in scope and needed greater restrictions. After 
deliberation, the Committee concluded that it would be impossible to 
anticipate what might be ``experimental'' in the future and that 
affording the greatest latitude to the provision, while maintaining 
strict Committee oversight, was in the best interest of the industry. 
The Committee also considered taking no action with regard to adding an 
experimental shipment provision, citing the potential for abuse. After 
deliberation, the Committee agreed that the experimental shipment 
provision is needed to respond to changes in the industry and that 
there would be sufficient safeguards to protect the integrity of the 
order.
    This proposed rule would impose additional reporting burdens on 
handlers who make special purpose shipments of experimental onions. 
This

[[Page 35999]]

action would require the modification of two existing Committee forms 
and an increase in burden hours for three existing forms. The 
information collection requirements are discussed later in this 
document. 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, 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.
    In addition, the Committee's meeting 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 January 20, 2011 meeting was a public 
meeting and all entities, both large and small, were able to express 
their views on this issue. Finally, interested persons are invited to 
submit comments on this proposed rule, including 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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter 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), this notice announces that AMS is requesting the Office of 
Management and Budget's (OMB) approval for a revision to currently 
approved forms used to collect information under this marketing order. 
Once the modified forms are approved, they will be merged with the 
forms contained in OMB No. 0581-0178 ``Generic OMB Vegetable Crops.''
    Title: Onions Grown in Certain Designated Counties in Idaho, and 
Malheur County, Oregon; Marketing Order No. 958.
    OMB Number: 0581-0178.
    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 
Idaho-Eastern Oregon onion marketing order.
    On January 20, 2011, the Committee unanimously recommended revising 
the handling regulation to allow special purpose shipments of onions 
for experimentation. To maintain the handling regulation safeguards, 
the proposed action would require minor revisions to three previously 
approved Committee forms: FV-34, FV-35, and FV-36.
    Safeguard requirements in the order's handling regulation require 
each handler making special purpose shipments outside the production 
area to furnish an Application to Make Special Purpose Shipments--
Certificate of Privilege, Form FV-34 to the Committee. The FV-34 form 
would be modified as a result of this proposed action by adding 
``Experimentation'' to the list of approved purposes for special 
purpose onion shipments. In addition, the words ``except as expressly 
authorized by the Committee'' would be added to the end of the first 
sentence of the form's certification statement. The proposed 
modifications to the form are not expected to increase the time it 
takes each handler to complete the form. The FV-34 form has already 
been approved for 10 burden hours by OMB. However, the estimated number 
of respondents is expected to increase as a result of this proposed 
action. As such, the total burden hours would need to be increased to 
account for that change.
    Also, after an approved handler has shipped and billed or consigned 
a special purpose onion shipment or shipments, the handler shall 
furnish to the Committee an Onion Diversion Report, Form FV-35 to 
report the number of shipments and the quantity of onions shipped under 
the Certificate of Privilege. No modification to this form would be 
required as a result of the proposed action. This form has already been 
approved for 266 burden hours by OMB. As a result of this proposed 
action, however, the estimated number of respondents is expected to 
increase. Accordingly, the total burden hours would need to be 
increased to account for that change.
    In addition, as authorized in the order's handling regulation 
safeguards, the Committee may contact the receiver or receiver's agent 
of special purpose onion shipments for verification and request that 
such receiver or receiver's agent complete a Special Purpose Shipment 
Receiver Certification, Form FV-36. The FV-36 form would be modified as 
a result of this proposed action by adding ``Experimentation'' to the 
list of approved outlets for special purpose onion shipments. In 
addition, the words ``except as expressly authorized by the Committee'' 
would be added to the end of the first sentence of the form's 
certification statement. The proposed modifications to the form are not 
expected to increase the time it takes each handler to complete the 
form. This form has already been approved for 1.67 burden hours by OMB. 
However, the estimated number of respondents is expected to increase as 
a result of this proposed action. Consequently, the total burden hours 
would need to be increased to account for that change.
    The information collected will be used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable 
Programs' regional and headquarters' staff, and authorized Committee 
employees. Authorized Committee employees are the primary users of the 
information and AMS is the secondary user.
    The request for approval of the modification of information 
collection under the order is as follows:
    Application to Make Special Purpose Shipments--Certificate of 
Privilege.
    As discussed previously, Form FV-34, Application to Make Special 
Purpose Shipments--Certificate of Privilege, is already approved under 
OMB No. 0581-0178, for 10 hours (25 respondents x 3 responses per 
respondent x .133 hours per response, for a total of 10 burden hours). 
Because the number of respondents is expected to increase from 25 to 
30, the estimated total burden is now 12 hours (30 respondents x 3 
responses x .133 hours). As a result of this proposed action, the 
burden is being increased by 2 hours.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 8 minutes. There is no change from 
the previous estimate.
    Respondents: Idaho-Eastern Oregon onion handlers.
    Estimated Number of Respondents: 30.
    Estimated Number of Responses per Respondent: 3.
    Estimated Total Annual Burden on Respondents: 12 hours.

Onion Diversion Report

    Also as mentioned previously, Form FV-35, Onion Diversion Report, 
is already approved under OMB No. 0581-0178, for 266 hours (20 
respondents x 100 responses per respondent x .133 hours per response, 
for a total of 266 burden hours). Because the number of respondents is 
expected to increase

[[Page 36000]]

from 20 to 25, the estimated total burden is now 333 hours (25 
respondents x 100 responses x .133 hours). As a result of this action, 
the burden is being increased by 67 hours.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 8 minutes. There is no change from 
the previous estimate.
    Respondents: Idaho-Eastern Oregon onion handlers.
    Estimated Number of Respondents: 25.
    Estimated Number of Responses per Respondent: 100.
    Estimated Total Annual Burden on Respondents: 333 hours.

Special Purpose Shipment Receiver Certification

    Additionally, as previously mentioned, Form FV-36, Special Purpose 
Shipment Receiver Certification, is already approved under OMB No. 
0581-0178, for 1.67 hours (50 respondents x 1 responses per respondent 
x .033 hours per response, for a total of 1.67 burden hours). Because 
the number of respondents is expected to increase from 50 to 60, the 
estimated total burden is now 2 hours (60 respondents x 1 responses x 
.033 hours). As a result of this action, the burden is being increased 
by .33 hours.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 2 minutes. There is no change from 
the previous estimate.
    Respondents: Receivers of special purpose shipments of Idaho-
Eastern Oregon onions.
    Estimated Number of Respondents: 60.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2 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, 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. 0581-0178 and the Marketing Order 
for Onions Grown in Certain Counties of Idaho, and Malheur County, 
Oregon, and be sent to the USDA in care of the Docket Clerk at the 
previously mentioned address. All comments timely 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 become a matter of public 
record. Upon OMB approval, this collection will be merged with the 
forms currently approved for use under OMB No. 0581-0241 ``Generic OMB 
Vegetable Crops.'' As mentioned previously, all Federal marketing order 
programs, reports and forms are periodically reviewed to reduce 
information requirements and duplication by industry and public sector 
agencies.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 958

    Marketing agreements, Onions, Reporting and recordkeeping 
requirements.

    For the reasons set forth above, 7 CFR part 958 is proposed to be 
amended as follows:

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

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

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

    2. In Sec.  958.328, revise paragraph (e) and paragraph (f) 
introductory text to read as follows:


Sec.  958.328  Handling regulation.

* * * * *
    (e) Special purpose shipments. (1) The minimum grade, size, 
maturity, pack, assessment, and inspection requirements of this section 
shall not be applicable to shipments of onions for any of the following 
purposes:
    (i) Planting,
    (ii) Livestock feed,
    (iii) Charity,
    (iv) Dehydration,
    (v) Canning,
    (vi) Freezing,
    (vii) Extraction,
    (viii) Pickling, and
    (ix) Disposal.
    (2) Shipments of onions for the purpose of experimentation, as 
approved by the Committee, may be made without regard to the minimum 
grade, size, maturity, pack, and inspection requirements of this 
section. Assessment requirements shall be applicable to such shipments.
    (3) 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 pearls onions.
    (f) Safeguards. Each handler making shipments of onions outside the 
production area for dehydration, canning, freezing, extraction, 
pickling, or experimentation pursuant to paragraph (e) of this section 
shall:
* * * * *

    Dated: June 15, 2011.
Ellen King,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-15445 Filed 6-20-11; 8:45 am]
BILLING CODE 3410-02-P