Onions Grown in South Texas; Order Amending Marketing Order No. 959, 10973-10976 [E8-3944]
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10973
Federal Register / Vol. 73, No. 41 / Friday, February 29, 2008 / Rules and Regulations
Country/locality of origin
Common name
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Korea, Republic of .................. Dasheen .................................
Sand pear ..............................
Strawberry ..............................
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§ 319.56–29
[Amended]
5. Section 319.56–29 is amended by
removing paragraph (b) and
redesignating paragraph (c) as paragraph
(b).
I
Done in Washington, DC, this 25th day of
February 2008.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E8–3901 Filed 2–28–08; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 457
RIN 0563–AC01
Common Crop Insurance Regulations,
Florida Citrus Fruit Crop Insurance
Provisions; Correction
Federal Crop Insurance
Corporation, USDA.
ACTION: Final rule; correction.
rfrederick on PROD1PC67 with RULES
AGENCY:
SUMMARY: This document contains
corrections to the final regulation which
was published Thursday, February 7,
2008. The regulation pertains to the
insurance of Florida Citrus Fruit.
DATES: Effective Date: The effective date
for the final rule published February 7,
2008 (73 FR 7190), is corrected to March
15, 2008. Other corrections in this
document are also effective March 15,
2008.
FOR FURTHER INFORMATION CONTACT: Bill
Klein , Risk Management Specialist,
Product Management, Product
Administration and Standards Division,
Risk Management Agency, United States
VerDate Aug<31>2005
15:40 Feb 28, 2008
Plant part(s)
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Colocasia
spp.,
Alocasia
spp.,
and
Xanthosoma spp.
Pyrus pyrifolia var. culta ................................
Fragaria spp ...................................................
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Root ...............
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(b)(2)(iv).
Fruit ...............
Fruit ...............
(b)(5)(ix).
(b)(5)(i).
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(b) * * *
(5) * * *
(ix) Except for sand pears entering
Hawaii, only precleared consignments
are authorized. The consignment must
be accompanied by a PPQ Form 203
signed by the APHIS inspector on site
in the exporting country.
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Jkt 214001
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Department of Agriculture, Beacon
Facility—Mail Stop 0812, P.O. Box
419205, Kansas City, MO 64141–6205,
telephone (816) 926–7730.
SUPPLEMENTARY INFORMATION:
The final regulation that is the subject
of these corrections was intended to
amend certain Florida Citrus Fruit Crop
Insurance Provisions to be used in
conjunction with the Common Crop
Insurance Policy Basic Provisions for
ease of use and consistency of terms.
Need for Corrections
As published at 73 FR 7190, the final
regulation contained errors that may
prove to be misleading and need to be
clarified.
1. The first error is contained in the
beginning in the Final Rule on page
7190 where it indicates the Effective
Date of the amendments is March 10,
2008. This is incorrect. The text should
read: Effective Date: March 15, 2008.
2. The second error is on page 7196
in the words of issuance. This text
should have stated the amendments are
effective for the 2009 and succeeding
crop years. The text should read as
follows:
‘‘Accordingly, as set forth in the
preamble, the Federal Crop Insurance
Corporation amends 7 CFR part 457,
Common Crop Insurance Regulations,
for the 2009 and succeeding crop years
as follows:’’
3. The third error is on page 7199 in
section 10(e)(2)(iv). This correction
replaces the semi-colon at the end of
paragraph (e)(2)(iv) with a period.
Signed in Washington, DC, on February 21,
2008.
Eldon Gould,
Manager, Federal Crop Insurance
Corporation.
[FR Doc. E8–3854 Filed 2–28–08; 8:45 am]
BILLING CODE 3410–08–P
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket Nos. AO–322–A4; AMS–2006–0079;
FV06–959–1]
Background
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Additional
requirements
Botanical name
Onions Grown in South Texas; Order
Amending Marketing Order No. 959
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule amends Marketing
Order No. 959 (order), which regulates
the handling of onions grown in South
Texas. The amendments are based on
those proposed by the South Texas
Onion Committee (committee), which is
responsible for local administration of
the order, and the Department of
Agriculture (USDA). The amendments
will authorize interest and late payment
charges on assessments not paid within
a prescribed time period and require
that a continuance referendum be
conducted every six years to determine
grower support for the order. The
amendments were approved by onion
growers in a mail referendum conducted
from September 10 through September
28, 2007. The amendments are intended
to improve the operation and
functioning of the South Texas onion
marketing order program. Proposed
amendments that failed in referendum
and are not included in this final order
include authority for supplemental
assessment rates, marketing promotion
and paid advertising authority, and
tenure limitations for committee
members.
DATES:
This rule is effective March 31,
2008.
FOR FURTHER INFORMATION CONTACT:
Martin Engeler, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, Agricultural
Marketing Service, USDA, 2202
Monterey Street, #102–B, Fresno, CA
93721; telephone: (559) 487–5110, Fax:
(559) 487–5906, E-mail:
Martin.Engeler@usda.gov; or Kathleen
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M. Finn, 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, E-mail:
Kathy.Finn@usda.gov.
Small businesses may request
information on this proceeding 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, Email: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: Prior
documents in this proceeding include a
Notice of Hearing issued on May 23,
2006, and published in the May 30,
2006, issue of the Federal Register (71
FR 30629); a Recommended Decision
issued on March 29, 2007 and published
in the April 6, 2007, issue of the Federal
Register (72 FR 17037); and a
Secretary’s Decision and Referendum
Order issued on August 2, 2007, and
published in the August 10, 2007, issue
of the Federal Register (72 FR 44984).
This action is governed by the
provisions of sections 556 and 557 of
title 5 of the United States Code and is
therefore excluded from the
requirements of Executive Order 12866.
Preliminary Statement
This final rule was formulated on the
record of a public hearing held on June
15, 2006, in Mission, Texas. Notice of
this hearing was issued on May 23, 2006
and published in the Federal Register
on May 30, 2006 (71 FR 30629). The
hearing was held to consider the
proposed amendment of Marketing
Agreement No. 143 and Order No. 959
regulating the handling of onions grown
in South Texas. The hearing was held
pursuant to the provisions of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et
seq.), hereinafter referred to as the
‘‘Act,’’ and the applicable rules of
practice and procedure governing the
formulation of marketing agreements
and orders (7 CFR part 900).
The Notice of Hearing contained
proposals submitted by the committee
and USDA. Committee proposal number
four, pertaining to container marking
requirements was withdrawn at the
hearing, resulting in a total of five
proposed amendments.
Upon the basis of evidence
introduced at the hearing and the record
thereof, the Administrator of the
Agricultural Marketing Service (AMS)
on March 29, 2007, filed with the
Hearing Clerk, U.S. Department of
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Agriculture, a Recommended Decision
and Opportunity to File Written
Exceptions thereto by May 7, 2007. No
exceptions were filed.
A Secretary’s Decision and
Referendum Order was issued on
August 2, 2007, directing that a
referendum be conducted during the
period September 10 through 28, 2007,
among South Texas onion producers to
determine whether they favored the
proposed amendments to the order. To
become effective, the amendments had
to be approved by at least two-thirds of
those producers voting or by voters
representing at least two-thirds of the
volume of onions represented by voters
voting in the referendum. Voters voting
in the referendum favored two of the
five proposed amendments.
The amendments favored by voters
and included in this order will:
1. Add authority to collect interest
and late payment charges on unpaid
handler assessments; and
2. Require that a continuance
referendum be conducted every six
years to determine industry support for
the order.
Three amendments pertaining to:
Establishing supplemental assessment
rates on specified containers of onions;
authority for marketing promotion,
including paid advertising; and limiting
the number of consecutive years a
member may serve on the committee,
failed to obtain the requisite level of
support needed to pass in referendum.
USDA also proposed to allow such
changes as may be necessary to the
order so that all of the orders’ provisions
conform to the effectuated amendments.
None were deemed necessary.
The amended marketing agreement
was subsequently mailed to all South
Texas onion handlers in the production
area for their approval. The marketing
agreement was not approved by
handlers representing at least 50 percent
of the volume of onions handled by all
handlers during the representative
period of August 1, 2006, through July
31, 2007.
Small Business Considerations
Pursuant to the requirements set forth
in the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601–612), the Agricultural
Marketing Service (AMS) has
considered the economic impact of this
action on small entities. Accordingly,
the 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 so that
small businesses will not be unduly or
disproportionately burdened. Small
agricultural growers have been defined
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by the Small Business Administration
(SBA) (13 CFR 121.201) as those having
annual receipts of less than $750,000.
Small agricultural service firms are
defined as those with annual receipts of
less than $6,500,000.
There are approximately 114 growers
of onions in the production area and
approximately 38 handlers subject to
regulation under the order. For the
2005–06 marketing year, the industry’s
38 handlers shipped onions produced
on 17,694 acres with the average and
median volume handled being 182,148
and 174,437 fifty-pound equivalents,
respectively. In terms of production
value, total revenues for the 38 handlers
were estimated to be $44.2 million, with
average and median revenues being
$l.16 million and $1.12 million,
respectively.
The South Texas onion industry is
characterized by producers and
handlers whose farming operations
generally involve more than one
commodity, and whose income from
farming operations is not exclusively
dependent on the production of onions.
Alternative crops provide an
opportunity to utilize many of the same
facilities and equipment not in use
when the onion production season is
complete. For this reason, typical onion
producers and handlers either produce
multiple crops or alternate crops within
a single year.
Based on the SBA’s definition of
small entities, the Committee estimates
that all of the 38 handlers regulated by
the order would be considered small
entities if only their onion revenues are
considered. However, revenues from
other productive enterprises would
likely push a number of these handlers
above the $6,500,000 annual receipt
threshold. Likewise, all of the 114
producers may be classified as small
entities based on the SBA definition if
only their revenue from onions is
considered.
The committee is comprised of 10
growers and 7 handlers, representing
both large and small entities. Committee
meetings are open to the public. All
members are able to participate in
committee deliberations and each has
an equal vote in committee decisions.
When the committee met on October 28,
2004, and recommended the proposed
amendments, all views expressed by the
members and others in attendance were
considered.
In addition, the hearing to receive
evidence on the proposed changes was
open to the public and all interested
parties were invited and encouraged to
participate and provide their views.
The amendments are intended to
improve the operation and
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administration of the order, and to
provide producers an opportunity to
indicate whether they favor continuance
of the order. Record evidence indicates
that the amendments are intended to
benefit onion producers and handlers
under the order regardless of size.
The amendment to authorize the
committee to charge interest and/or late
payment fees on assessments not paid
within a prescribed time period will not
have a differential impact on small and
large entities. According to the record,
late fees and interest charges will be
based on handlers’ timeliness of
payments, regardless of size. A hearing
witness familiar with the assessment
collection operations under the order
stated that there is no relationship
between a handler’s performance with
regard to timely assessment payment
and the size of the handler’s business
operation. Any increased costs will be
borne only by those handlers that fail to
pay their assessments in a timely
manner. These potential costs will offset
any potential advantage handlers could
gain by not paying their assessments
when due and will thus promote equity
for all handlers. It will provide an
incentive to pay on time. This proposed
amendment is strictly a performancebased measure and will thus be applied
based on handlers’ performance with
respect to their payment of assessments.
The proposal to require continuance
referenda on a periodic basis to
ascertain grower support for the order
will allow growers to vote on whether
to continue the operation of the
program. This provides a means for
those whom the order was intended to
benefit with an opportunity to express
their views regarding continuation of
the marketing order. USDA will conduct
the referenda, and thus USDA will bear
the majority of any associated costs.
Interested persons were invited to
present evidence at the hearing on the
probable regulatory and informational
impacts of the proposed amendments to
the order on small entities. The record
evidence is that while some minimal
costs may occur, those costs will be
outweighed by the benefits expected to
accrue to the South Texas onion
industry.
USDA has not identified any relevant
Federal rules that duplicate, overlap or
conflict with this rule. The amendments
are designed to improve the
administration and operation of the
order and to provide an opportunity to
ascertain producer support for the order.
Paperwork Reduction Act
Current information collection
requirements for Part 959 are currently
approved by the Office of Management
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15:40 Feb 28, 2008
Jkt 214001
and Budget (OMB) under OMB number
0581–0178, ‘‘Vegetable and Specialty
Crops.’’ No changes in those
requirements as a result of this
proceeding are needed. Should any
changes become necessary, they will be
submitted to OMB for approval.
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.
The 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.
Civil Justice Reform
The amendments to Marketing Order
959 stated herein have been reviewed
under Executive Order 12988, Civil
Justice Reform. They are not intended to
have retroactive effect. They 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 (7 U.S.C.
608c(15)(A)), any handler subject to an
order may file with the Department 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
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 the
Department’s ruling on the petition,
provided an action is filed not later than
20 days after the date of the entry of the
ruling.
Order Amending the Order Regulating
Onions Grown in South Texas
Findings and Determinations
The findings and determinations set
forth hereinafter are supplementary and
in addition to the findings and
determinations previously made in
connection with the issuance of the
order; and all of said previous findings
and determinations are hereby ratified
and affirmed, except as such findings
and determinations may be in conflict
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10975
with the findings and determinations set
forth herein.
(a) Findings and Determinations
Upon the Basis of the Hearing Record.
Pursuant to the provisions of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et
seq.) and the applicable rules of practice
and procedure effective thereunder (7
CFR part 900), a public hearing was
held upon the proposed amendments to
Marketing Order No. 959 (7 CFR part
959), regulating the handling of onions
grown in South Texas.
Upon the basis of the evidence
introduced at such hearing and the
record thereof it is found that:
(1) The marketing order, as amended,
and as hereby further amended, and all
of the terms and conditions thereof, will
tend to effectuate the declared policy of
the Act;
(2) The marketing order, as amended,
and as hereby further amended,
regulates the handling of onions grown
in the production area in the same
manner as, and is applicable only to
persons in the respective classes of
commercial and industrial activity
specified in the marketing order upon
which hearings have been held;
(3) The marketing order, as amended,
and as hereby 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 orders applicable to
subdivision of the production area
would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended,
and as hereby 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 grown in the
production area; and
(5) All handling of onions grown in
the production area is in the current of
interstate or foreign commerce or
directly burdens, obstructs, or affects
such commerce.
(b) Determinations. It is hereby
determined that:
(1) Handlers (excluding cooperative
associations of producers who are not
engaged in processing, distributing, or
shipping onions covered by the order as
hereby amended) who, during the
period August 1, 2006 through July 31,
2007, handled 50 percent or more of the
volume of such onions covered by the
order, as hereby amended, have not
signed an amended marketing
agreement; and,
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(2) The issuance of this amendatory
order, further amending the aforesaid
order, is favored or approved by at least
two-thirds of the producers who
participated in a referendum and who,
during the period August 1, 2006
through July 31, 2007 (which has been
determined to be a representative
period), have been engaged within the
production area in the production of
onions for market, such producers
having also produced for market at least
two-thirds of the volume of such
commodity represented in the
referendum.
(3) In the absence of a signed
marketing agreement, the issuance of
this amendatory order is the only
practical means pursuant to the
declared policy of the Act of advancing
the interests of producers of onions in
the production area.
Order Relative to Handling of Onions
Grown in South Texas
It is therefore ordered, That on and
after the effective date hereof, all
handling of onions grown in South
Texas shall be in conformity to, and in
compliance with, the terms and
conditions of the said order as hereby
amended as follows:
The provisions of proposals contained
in Material Issue numbers 2 and 5 of the
proposed order amending the order
contained in the Recommended
Decision issued by the Administrator on
March 29, 2007, and published in the
Federal Register on April 6, 2007, shall
be and are the terms and provisions of
this order amending the order and set
forth in full herein.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, Title 7 of Chapter XI of the
Code of Federal Regulations is amended
by amending part 959 as follows:
I
PART 959—ONIONS GROWN IN
SOUTH TEXAS
1. The authority citation for 7 CFR
part 959 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. Add a new paragraph (e) to § 959.42
to read as follows:
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§ 959.42
Assessments.
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(e) If a handler does not pay
assessments within the time prescribed
by the committee, the assessment may
be increased by a late payment charge
and/or an interest rate charge at
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amounts prescribed by the committee
with approval of the Secretary.
I 3. In § 959.84, redesignate paragraph
(d) as paragraph (e) and add a new
paragraph (d) to read as follows:
§ 959.84
Termination.
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(d) The Secretary shall conduct a
referendum within six years after the
effective date of this paragraph and
every sixth year thereafter to ascertain
whether continuance is favored by
producers. The Secretary would
consider termination of this part if less
than two-thirds of the growers voting in
the referendum and growers of less than
two-thirds of the volume of onions
represented in the referendum favor
continuance.
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Dated: February 26, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–3944 Filed 2–28–08; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. AMS–FV–07–0014; FV07–966–
2 FIR]
Tomatoes Grown in Florida; Decreased
Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Agriculture (USDA) is adopting, as a
final rule, without change, an interim
final rule which decreased the
assessment rate established for the
Florida Tomato Committee (Committee)
for the 2007–08 and subsequent fiscal
periods from $0.035 to $0.0325 per 25pound carton of tomatoes handled. The
Committee locally administers the
marketing order which regulates the
handling of tomatoes grown in Florida.
Assessments upon tomato handlers are
used by the Committee to fund
reasonable and necessary expenses of
the program. The fiscal period begins
August 1 and ends July 31. The
assessment rate will remain in effect
indefinitely unless modified,
suspended, or terminated.
DATES: Effective Date: March 31,2008.
FOR FURTHER INFORMATION CONTACT:
William G. Pimental, Marketing
Specialist or Christian D. Nissen,
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Regional Manager, Southeast Marketing
Field Office, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA;
Telephone: (863) 324–3375, Fax: (863)
325–8793, or E-mail:
William.Pimental@usda.gov or
Christian.Nissen@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
This rule
is issued under Marketing Agreement
No. 125 and Order No. 966, both as
amended (7 CFR part 966), regulating
the handling of tomatoes grown in
Florida, 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. Under the marketing order now
in effect, Florida tomato handlers are
subject to assessments. Funds to
administer the order are derived from
such assessments. It is intended that the
assessment rate as issued herein will be
applicable to all assessable tomatoes
beginning August 1, 2007, and continue
until amended, suspended, or
terminated. 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.
SUPPLEMENTARY INFORMATION:
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Agencies
[Federal Register Volume 73, Number 41 (Friday, February 29, 2008)]
[Rules and Regulations]
[Pages 10973-10976]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3944]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket Nos. AO-322-A4; AMS-2006-0079; FV06-959-1]
Onions Grown in South Texas; Order Amending Marketing Order No.
959
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends Marketing Order No. 959 (order), which
regulates the handling of onions grown in South Texas. The amendments
are based on those proposed by the South Texas Onion Committee
(committee), which is responsible for local administration of the
order, and the Department of Agriculture (USDA). The amendments will
authorize interest and late payment charges on assessments not paid
within a prescribed time period and require that a continuance
referendum be conducted every six years to determine grower support for
the order. The amendments were approved by onion growers in a mail
referendum conducted from September 10 through September 28, 2007. The
amendments are intended to improve the operation and functioning of the
South Texas onion marketing order program. Proposed amendments that
failed in referendum and are not included in this final order include
authority for supplemental assessment rates, marketing promotion and
paid advertising authority, and tenure limitations for committee
members.
DATES: This rule is effective March 31, 2008.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order
Administration Branch, Fruit and Vegetable Programs, Agricultural
Marketing Service, USDA, 2202 Monterey Street, 102-B, Fresno,
CA 93721; telephone: (559) 487-5110, Fax: (559) 487-5906, E-mail:
Martin.Engeler@usda.gov; or Kathleen
[[Page 10974]]
M. Finn, 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, E-mail: Kathy.Finn@usda.gov.
Small businesses may request information on this proceeding 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, E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding include a
Notice of Hearing issued on May 23, 2006, and published in the May 30,
2006, issue of the Federal Register (71 FR 30629); a Recommended
Decision issued on March 29, 2007 and published in the April 6, 2007,
issue of the Federal Register (72 FR 17037); and a Secretary's Decision
and Referendum Order issued on August 2, 2007, and published in the
August 10, 2007, issue of the Federal Register (72 FR 44984).
This action is governed by the provisions of sections 556 and 557
of title 5 of the United States Code and is therefore excluded from the
requirements of Executive Order 12866.
Preliminary Statement
This final rule was formulated on the record of a public hearing
held on June 15, 2006, in Mission, Texas. Notice of this hearing was
issued on May 23, 2006 and published in the Federal Register on May 30,
2006 (71 FR 30629). The hearing was held to consider the proposed
amendment of Marketing Agreement No. 143 and Order No. 959 regulating
the handling of onions grown in South Texas. The hearing was held
pursuant to the provisions of the Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et seq.), hereinafter referred to as
the ``Act,'' and the applicable rules of practice and procedure
governing the formulation of marketing agreements and orders (7 CFR
part 900).
The Notice of Hearing contained proposals submitted by the
committee and USDA. Committee proposal number four, pertaining to
container marking requirements was withdrawn at the hearing, resulting
in a total of five proposed amendments.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on March 29, 2007, filed with the Hearing Clerk, U.S. Department of
Agriculture, a Recommended Decision and Opportunity to File Written
Exceptions thereto by May 7, 2007. No exceptions were filed.
A Secretary's Decision and Referendum Order was issued on August 2,
2007, directing that a referendum be conducted during the period
September 10 through 28, 2007, among South Texas onion producers to
determine whether they favored the proposed amendments to the order. To
become effective, the amendments had to be approved by at least two-
thirds of those producers voting or by voters representing at least
two-thirds of the volume of onions represented by voters voting in the
referendum. Voters voting in the referendum favored two of the five
proposed amendments.
The amendments favored by voters and included in this order will:
1. Add authority to collect interest and late payment charges on
unpaid handler assessments; and
2. Require that a continuance referendum be conducted every six
years to determine industry support for the order.
Three amendments pertaining to: Establishing supplemental
assessment rates on specified containers of onions; authority for
marketing promotion, including paid advertising; and limiting the
number of consecutive years a member may serve on the committee, failed
to obtain the requisite level of support needed to pass in referendum.
USDA also proposed to allow such changes as may be necessary to the
order so that all of the orders' provisions conform to the effectuated
amendments. None were deemed necessary.
The amended marketing agreement was subsequently mailed to all
South Texas onion handlers in the production area for their approval.
The marketing agreement was not approved by handlers representing at
least 50 percent of the volume of onions handled by all handlers during
the representative period of August 1, 2006, through July 31, 2007.
Small Business Considerations
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing
Service (AMS) has considered the economic impact of this action on
small entities. Accordingly, the 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 so that small businesses will not be
unduly or disproportionately burdened. Small agricultural growers have
been defined by the Small Business Administration (SBA) (13 CFR
121.201) as those having annual receipts of less than $750,000. Small
agricultural service firms are defined as those with annual receipts of
less than $6,500,000.
There are approximately 114 growers of onions in the production
area and approximately 38 handlers subject to regulation under the
order. For the 2005-06 marketing year, the industry's 38 handlers
shipped onions produced on 17,694 acres with the average and median
volume handled being 182,148 and 174,437 fifty-pound equivalents,
respectively. In terms of production value, total revenues for the 38
handlers were estimated to be $44.2 million, with average and median
revenues being $l.16 million and $1.12 million, respectively.
The South Texas onion industry is characterized by producers and
handlers whose farming operations generally involve more than one
commodity, and whose income from farming operations is not exclusively
dependent on the production of onions. Alternative crops provide an
opportunity to utilize many of the same facilities and equipment not in
use when the onion production season is complete. For this reason,
typical onion producers and handlers either produce multiple crops or
alternate crops within a single year.
Based on the SBA's definition of small entities, the Committee
estimates that all of the 38 handlers regulated by the order would be
considered small entities if only their onion revenues are considered.
However, revenues from other productive enterprises would likely push a
number of these handlers above the $6,500,000 annual receipt threshold.
Likewise, all of the 114 producers may be classified as small entities
based on the SBA definition if only their revenue from onions is
considered.
The committee is comprised of 10 growers and 7 handlers,
representing both large and small entities. Committee meetings are open
to the public. All members are able to participate in committee
deliberations and each has an equal vote in committee decisions. When
the committee met on October 28, 2004, and recommended the proposed
amendments, all views expressed by the members and others in attendance
were considered.
In addition, the hearing to receive evidence on the proposed
changes was open to the public and all interested parties were invited
and encouraged to participate and provide their views.
The amendments are intended to improve the operation and
[[Page 10975]]
administration of the order, and to provide producers an opportunity to
indicate whether they favor continuance of the order. Record evidence
indicates that the amendments are intended to benefit onion producers
and handlers under the order regardless of size.
The amendment to authorize the committee to charge interest and/or
late payment fees on assessments not paid within a prescribed time
period will not have a differential impact on small and large entities.
According to the record, late fees and interest charges will be based
on handlers' timeliness of payments, regardless of size. A hearing
witness familiar with the assessment collection operations under the
order stated that there is no relationship between a handler's
performance with regard to timely assessment payment and the size of
the handler's business operation. Any increased costs will be borne
only by those handlers that fail to pay their assessments in a timely
manner. These potential costs will offset any potential advantage
handlers could gain by not paying their assessments when due and will
thus promote equity for all handlers. It will provide an incentive to
pay on time. This proposed amendment is strictly a performance-based
measure and will thus be applied based on handlers' performance with
respect to their payment of assessments.
The proposal to require continuance referenda on a periodic basis
to ascertain grower support for the order will allow growers to vote on
whether to continue the operation of the program. This provides a means
for those whom the order was intended to benefit with an opportunity to
express their views regarding continuation of the marketing order. USDA
will conduct the referenda, and thus USDA will bear the majority of any
associated costs.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impacts of the proposed
amendments to the order on small entities. The record evidence is that
while some minimal costs may occur, those costs will be outweighed by
the benefits expected to accrue to the South Texas onion industry.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this rule. The amendments are designed to
improve the administration and operation of the order and to provide an
opportunity to ascertain producer support for the order.
Paperwork Reduction Act
Current information collection requirements for Part 959 are
currently approved by the Office of Management and Budget (OMB) under
OMB number 0581-0178, ``Vegetable and Specialty Crops.'' No changes in
those requirements as a result of this proceeding are needed. Should
any changes become necessary, they will be submitted to OMB for
approval.
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.
The 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.
Civil Justice Reform
The amendments to Marketing Order 959 stated herein have been
reviewed under Executive Order 12988, Civil Justice Reform. They are
not intended to have retroactive effect. They 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 (7 U.S.C. 608c(15)(A)), any handler subject to an order may file
with the Department 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 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 the
Department's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Order Amending the Order Regulating Onions Grown in South Texas
Findings and Determinations
The findings and determinations set forth hereinafter are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except as such findings and determinations may be in conflict
with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record.
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.) and the applicable rules
of practice and procedure effective thereunder (7 CFR part 900), a
public hearing was held upon the proposed amendments to Marketing Order
No. 959 (7 CFR part 959), regulating the handling of onions grown in
South Texas.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The marketing order, as amended, and as hereby further amended,
and all of the terms and conditions thereof, will tend to effectuate
the declared policy of the Act;
(2) The marketing order, as amended, and as hereby further amended,
regulates the handling of onions grown in the production area in the
same manner as, and is applicable only to persons in the respective
classes of commercial and industrial activity specified in the
marketing order upon which hearings have been held;
(3) The marketing order, as amended, and as hereby 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 orders applicable to
subdivision of the production area would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended, and as hereby 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 grown in the production area; and
(5) All handling of onions grown in the production area is in the
current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping onions covered
by the order as hereby amended) who, during the period August 1, 2006
through July 31, 2007, handled 50 percent or more of the volume of such
onions covered by the order, as hereby amended, have not signed an
amended marketing agreement; and,
[[Page 10976]]
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum and who, during the period
August 1, 2006 through July 31, 2007 (which has been determined to be a
representative period), have been engaged within the production area in
the production of onions for market, such producers having also
produced for market at least two-thirds of the volume of such commodity
represented in the referendum.
(3) In the absence of a signed marketing agreement, the issuance of
this amendatory order is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers of
onions in the production area.
Order Relative to Handling of Onions Grown in South Texas
It is therefore ordered, That on and after the effective date
hereof, all handling of onions grown in South Texas shall be in
conformity to, and in compliance with, the terms and conditions of the
said order as hereby amended as follows:
The provisions of proposals contained in Material Issue numbers 2
and 5 of the proposed order amending the order contained in the
Recommended Decision issued by the Administrator on March 29, 2007, and
published in the Federal Register on April 6, 2007, shall be and are
the terms and provisions of this order amending the order and set forth
in full herein.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, Title 7 of Chapter XI of the
Code of Federal Regulations is amended by amending part 959 as follows:
PART 959--ONIONS GROWN IN SOUTH TEXAS
0
1. The authority citation for 7 CFR part 959 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Add a new paragraph (e) to Sec. 959.42 to read as follows:
Sec. 959.42 Assessments.
* * * * *
(e) If a handler does not pay assessments within the time
prescribed by the committee, the assessment may be increased by a late
payment charge and/or an interest rate charge at amounts prescribed by
the committee with approval of the Secretary.
0
3. In Sec. 959.84, redesignate paragraph (d) as paragraph (e) and add
a new paragraph (d) to read as follows:
Sec. 959.84 Termination.
* * * * *
(d) The Secretary shall conduct a referendum within six years after
the effective date of this paragraph and every sixth year thereafter to
ascertain whether continuance is favored by producers. The Secretary
would consider termination of this part if less than two-thirds of the
growers voting in the referendum and growers of less than two-thirds of
the volume of onions represented in the referendum favor continuance.
* * * * *
Dated: February 26, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-3944 Filed 2-28-08; 8:45 am]
BILLING CODE 3410-02-P