[Federal Register Volume 83, Number 240 (Friday, December 14, 2018)]
[Proposed Rules]
[Pages 64296-64299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27143]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 956

[Doc. No. AMS-SC-18-0028; SC-18-956-1]


Sweet Onions Grown in the Walla Walla Valley of Southeast 
Washington and Northeast Oregon; Proposed Amendments to Marketing Order 
956 and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This document proposes amendments to Marketing Order No. 956, 
which regulates the handling of sweet onions grown in the Walla Walla 
Valley of Southeast Washington and Northeast Oregon. The Walla Walla 
Sweet Onion Marketing Committee (Committee) recommended changing the 
Committee's size, quorum, and voting requirements. The Committee also 
recommended changing the term of office and staggered term limits so 
that the term of office for producers and handlers would be two fiscal 
periods instead of three fiscal periods, and one-half instead of one-
third of the producer and handler member terms would expire every year.

DATES: The referendum will be conducted from December 17, 2018, through 
December 31, 2018. The representative period for the referendum is June 
1, 2017, through May 31, 2018.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Patty Bennett, Director, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, 
Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposal, pursuant to 5 U.S.C. 553, 
proposes amendments to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposal is issued under 
Marketing Order No. 956, as amended (7 CFR part 956), regulating the 
handling of sweet onions grown in the Walla Walla Valley of Southeast 
Washington and Northeast Oregon. Part 956 (referred to as 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 Committee locally administers the Order and is comprised 
of sweet onion producers and handlers operating within the area of 
production and a public member.
    Section 608c(17) of the Act and the applicable rules of practice 
and procedure governing the formulation of marketing agreements and 
orders (7 CFR part 900) authorizes amendment of the Order through this 
informal rulemaking action.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs'[thinsp]'' (February 2, 2017).
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State program covering sweet onions grown in the Walla Walla Valley of 
Southeast Washington and Northeast Oregon.
    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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 608c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 608c(17) of the Act and the supplemental rules of practice 
authorize the use of informal rulemaking (5 U.S.C. 553) to amend 
Federal fruit, vegetable, and nut marketing agreements and orders. USDA 
may use informal rulemaking to amend marketing orders based on the 
nature and complexity of the proposed amendments, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    AMS has considered these factors and has determined that the 
amendments proposed are not unduly complex and the nature of the 
proposed amendments is appropriate for utilizing the informal 
rulemaking process to amend the Order.
    The proposed amendments were unanimously recommended by the 
Committee following deliberations at two public meetings held on 
November 14, 2017, and March 3, 2018. The proposals would amend the 
Order by changing the Committee's size, quorum, and voting 
requirements. This action would also change the term of office and 
staggered term limits so that the term of office for producers and 
handlers would be two fiscal periods instead of three fiscal periods, 
and one-half instead of one-third of the producer and handler member 
terms would expire every year. If the proposed amendments are 
finalized, the Committee would hold nominations for producer and 
handler member and alternate positions. All the Committee's producer 
and handler positions would be filled by new nominations. Members and 
alternates who are currently serving could be nominated to serve on the 
new Committee.
    A proposed rule soliciting comments on the proposed amendments was 
issued on July 19, 2018, and published in the Federal Register on July 
24, 2018 (83 FR 34953). One comment in support of the amendments was 
received. AMS will conduct a producer referendum to determine support 
for the proposed

[[Page 64297]]

amendments. If appropriate, a final rule will then be issued to 
effectuate the amendments favored by producers in the referendum.

Proposal 1--Reduce Committee Size

    Section 956.20 provides that the Committee consists of ten members, 
six of whom shall be producers, three of whom shall be handlers, and 
one public member. This proposal would amend Sec.  956.20 by reducing 
the size of the Committee from ten to seven members, four of whom shall 
be producers, two of whom shall be handlers, and one public member. The 
requirement that each member have an alternate with the same 
qualifications as the member would remain unchanged.
    Since promulgation of the Order in 1995, the number of Walla Walla 
sweet onion producers and handlers operating in the industry has 
decreased, which makes it difficult to find enough members and 
alternates to fill all positions on the Committee. Decreasing the 
Committee's size from ten members to seven members would make it more 
reflective of today's industry. Reducing the size of the Committee 
would enable it to more effectively fulfill membership and quorum 
requirements. These changes should help the Committee streamline its 
operations and increase its effectiveness.

Proposal 2--Revise Term of Office and Staggered Term Limits

    Section 956.21 requires Committee members and their alternates to 
serve for three fiscal periods in staggered terms with one-third of the 
terms expiring each year.
    This proposal would change Sec.  956.21 by revising the terms of 
office for the producer and handler members from three fiscal periods 
to two fiscal periods beginning on June 1 so that one-half of the 
Committee membership changes every year. The staggered terms would also 
change so that one-half instead of one-third of the producer and 
handler member terms expire every year. The proposed term limit changes 
would only apply to producer and handler members; the public member 
term would remain at three years.

Proposal 3--Revise Quorum and Voting Requirements

    Currently, Section 956.28(a) states that six members of the 
Committee shall constitute a quorum, and six concurring votes shall be 
required to pass any motion or approve any Committee action, except 
that recommendations made pursuant to Sec.  956.61 shall require seven 
concurring votes.
    The proposed changes would modify Sec.  956.28 to state that four 
rather than six members would constitute a quorum, and four rather than 
six concurring votes would be required to pass any motion or approve 
any Committee action, except for recommendations made pursuant to Sec.  
956.61, which would require five rather than seven concurring votes. 
These changes would help streamline the Committee's operations and 
increase its effectiveness.

Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), 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 
businesses 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 eight handlers of Walla Walla sweet onions subject to 
regulation under the Order and approximately 15 producers in the 
regulated production area. Small agricultural service firms are defined 
by the Small Business Administration (SBA) as those having annual 
receipts of less than $7,500,000, and small agricultural producers are 
defined as those having annual receipts of less than $750,000 (13 CFR 
121.201).
    The Committee reported that approximately 390,000 50-pound bags or 
equivalents of Walla Walla sweet onions were shipped into the fresh 
market in 2017. Based on information reported by USDA's Market News 
Service, the average 2017 marketing year f.o.b. shipping point price 
for the Walla Walla sweet onions was $14.90 per 50-pound equivalent. 
Multiplying the $14.90 average price by the shipment quantity of 
390,000 50-pound equivalents yields an annual crop revenue estimate of 
$5,811,000. The average annual revenue for each of the eight handlers 
is therefore calculated to be $726,375 ($5,811,000 divided by eight), 
which is less than the SBA threshold of $7,500,000. Consequently, all 
the Walla Walla sweet onion handlers could be classified as small 
entities.
    In addition, based on information provided by the National 
Agricultural Statistics Service (NASS), the average producer price for 
Walla Walla sweet onions for the 2012 through 2016 marketing years is 
$15.27 per 50-pound equivalent. NASS has not released data regarding 
the 2017 marketing year at this time. Multiplying the 2012-2016 
marketing year average price of $15.27 by the 2017 marketing year 
shipments of 390,000 50-pound equivalents yields an annual crop revenue 
estimate of $5,955,300. The estimated average annual revenue for each 
of the 15 producers is therefore calculated to be approximately 
$397,020 ($5,955,300 divided by 15), which is less than the SBA 
threshold of $750,000. In view of the foregoing, the majority of Walla 
Walla sweet onion producers and all of the Walla Walla sweet onion 
handlers may be classified as small entities.
    The proposed amendments would change the Committee's size, quorum, 
and voting requirements. The proposed amendments would also change the 
term of office and staggered term limits so that the term of office for 
producers and handlers would be two fiscal periods instead of three 
fiscal periods, and one-half instead of one-third of the producer and 
handler member terms would expire every year.
    The Committee's proposed amendments were unanimously recommended at 
two public meetings on November 14, 2017, and March 3, 2018. If these 
proposals are approved in a referendum, there would be no direct 
financial effects on producers or handlers. The number of producers and 
handlers operating in the industry has decreased, which makes it 
difficult to find enough members to fill positions on the Committee. 
Decreasing the Committee's size would make it more reflective of 
today's industry.
    If the proposed amendments are finalized, the Committee would hold 
nominations for producer and handler member and alternate positions. 
All the Committee's producer and handler positions would be filled by 
new nominations. Members and alternates who are currently serving could 
be nominated to serve on the new Committee.
    The Committee believes these changes will serve the needs of the 
Committee and the industry. No economic impact is expected if the 
proposed amendments are approved because they would not establish any 
new regulatory requirements on handlers nor would they have any 
assessment or funding implications. There would be no change in 
financial costs, reporting, or recordkeeping requirements if the 
proposals are approved.
    Alternatives to the proposals, including making no changes at this

[[Page 64298]]

time, were considered by the Committee. Due to changes in the industry, 
AMS believes the proposals are justified and necessary to ensure the 
Committee's ability to locally administer the program. Reducing the 
size of the Committee would enable it to fulfill membership and quorum 
requirements fully, thereby ensuring a more efficient and orderly flow 
of business.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178 (Vegetable 
and Specialty Crops). No changes in those requirements are necessary 
because of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would impose no additional reporting or 
recordkeeping requirements on either small or large Walla Walla Valley 
sweet onion handlers. 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this action.
    The Committee's meetings were widely publicized throughout the 
production area. All interested persons were invited to attend the 
meetings and encouraged to participate in Committee deliberations on 
all issues. Like all Committee meetings, the November 14, 2017, and 
March 3, 2018, meetings were public, and all entities, both large and 
small, were encouraged to express their views on the proposals.
    A proposed rule concerning this action was published in the Federal 
Register on July 24, 2018 (83 FR 34953). A copy of the proposed rule 
was sent via email to the Committee manager for dispersal to all 
Committee members and interested parties. The rule was also made 
available through the internet by USDA and the Office of the Federal 
Register. A 60-day comment period ending September 24, 2018, was 
provided to allow interested persons to respond to the proposal. One 
comment was received in support of the amendments.
    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/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Findings and Conclusions

    The findings and conclusions and general findings and 
determinations included in the proposed rule set forth in the July 24, 
2018, issue of the Federal Register are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Sweet Onions 
Grown in the Walla Walla Valley of Southeast Washington and Northeast 
Oregon.'' This document has been decided upon as the detailed and 
appropriate means of effectuating the foregoing findings and 
conclusions. It is hereby ordered that this entire rule be published in 
the Federal Register.

Referendum Order

    It is hereby directed that a producer referendum be conducted in 
accordance with the procedure for the conduct of referenda (7 CFR 
900.400-407) to determine whether the annexed Order Amending the Order 
Regulating the Handling of Sweet Onions Grown in the Walla Walla Valley 
of Southeast Washington and Northeast Oregon is approved by producers 
who have engaged in the production of sweet onions within the 
production area during the representative period. The representative 
period for the conduct of such referendum is hereby determined to be 
June 1, 2017, to May 31, 2018.
    The agents of the Secretary to conduct such referendum are 
designated to be Dale Novotny and Barry Broadbent, Northwest Marketing 
Field Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or 
Email: [email protected] and [email protected], 
respectively.

Order Amending the Order Regulating the Handling of Sweet Onions Grown 
in the Walla Walla Valley of Southeast Washington and Northeast Oregon 
\1\
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the Order; and all said previous findings and 
determinations are hereby ratified and affirmed, except insofar as such 
findings and determinations may be in conflict with the findings and 
determinations set forth herein.
    1. The Order, as amended, and as hereby proposed to be further 
amended, and all the terms and conditions thereof, would tend to 
effectuate the declared policy of the Act;
    2. The Order, as amended, and as hereby proposed to be further 
amended, regulates the handling of sweet onions grown in the Walla 
Walla Valley of Southeast Washington and Northeast Oregon and is 
applicable only to persons in the respective classes of commercial and 
industrial activity specified in the Order;
    3. The Order, as amended, and as hereby proposed to be further 
amended, is limited in application to the smallest regional production 
area which is practicable, consistent with carrying out the declared 
policy of the Act, and the issuance of several marketing orders 
applicable to subdivisions of the production area would not effectively 
carry out the declared policy of the Act;
    4. The Order, as amended, and as hereby proposed to be further 
amended, prescribes, insofar as practicable, such different terms 
applicable to different parts of the production area as are necessary 
to give due recognition to the differences in the production and 
marketing of onions produced or packed in the production area; and
    5. All handling of onions produced or packed in the production area 
as defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of sweet onions grown in the Walla Walla Valley of 
Southeast Washington and Northeast Oregon shall be in conformity to, 
and in compliance with, the terms and conditions of the

[[Page 64299]]

said Order as hereby proposed to be amended as follows:
    The provisions of the proposed marketing order amending the Order 
contained in the proposed rule issued by the Administrator on July 19, 
2018, and published in the Federal Register (83 FR 34953) on July 24, 
2018, will be and are the terms and provisions of this order amending 
the Order and are set forth in full herein.

List of Subjects in 7 CFR Part 956

    Onions, Marketing agreements, Reporting and recordkeeping 
requirements.

    Dated: December 11, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.

    For the reasons discussed in the preamble, 7 CFR part 956 is 
proposed to be amended as follows.

PART 956--SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST 
WASHINGTON AND NORTHEAST OREGON

0
1. The authority citation for 7 CFR part 956 continues to read as 
follows:

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

0
2. Amend Sec.  956.20 by revising paragraph (a) to read as follows:


Sec.  956.20   Establishment and membership.

    (a) The Walla Walla Sweet Onion Marketing Committee, consisting of 
seven members, is hereby established. The Committee shall consist of 
four producer members, two handler members, and one public member. Each 
member shall have an alternate who shall have the same qualifications 
as the member.
* * * * *
0
3. Revise Sec.  956.21 to read as follows:


Sec.  956.21   Term of office.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the term of office of grower and handler Committee members and their 
respective alternates shall be two fiscal periods beginning on June 1 
or such other date as recommended by the Committee and approved by the 
Secretary. The terms shall be determined so that one-half of the grower 
membership and one-half of the handler membership shall terminate each 
year. Members and alternates shall serve during the term of office for 
which they are selected and have been qualified, or during that portion 
thereof beginning on the date on which they qualify during such term of 
office and continuing until the end thereof, or until their successors 
are selected and have qualified.
    (b) The term of office of the initial members and alternates shall 
begin as soon as possible after the effective date of this subpart. 
One-half of the initial industry grower and handler members and 
alternates shall serve for a one-year term and one-half shall serve for 
a two-year term. The initial as well as all successive terms of office 
of the public member and alternate member shall be for three years.
    (c) The consecutive terms of office for all grower and handler 
members shall be limited to two two-year terms. There shall be no such 
limitation for alternate members.
0
4. Amend Sec.  956.28 by revising paragraph (a) to read as follows:


Sec.  956.28   Procedure.

    (a) Four members of the Committee shall constitute a quorum, and 
four concurring votes shall be required to pass any motion or approve 
any Committee action, except that recommendations made pursuant to 
Sec.  956.61 shall require five concurring votes.
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[FR Doc. 2018-27143 Filed 12-13-18; 8:45 am]
 BILLING CODE 3410-02-P