# AGENCY:

 Agricultural Marketing Service, USDA.

# ACTION:

 Final rule.

# SUMMARY:

 This rule decreases the assessment rate established for the South Texas Onion Committee (Committee) for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions handled. The Committee is responsible for local administration of the marketing order which regulates the handling of onions grown in South Texas. Authorization to assess onion handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period began August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

# EFFECTIVE DATE:

 January 19, 2000.

# FOR FURTHER INFORMATION CONTACT:

 Cynthia Cavazos, Marketing Assistant, McAllen Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1313 E. Hackberry; telephone: (956) 682-2833, Fax: (956) 682-5942; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698.

Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-5698, or E-mail: Jay.Guerber@usda.gov.

# SUPPLEMENTARY INFORMATION:

                     This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”                    Start Printed Page 2527

The Department of Agriculture (Department) 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, South Texas onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate issued herein will be applicable to all assessable onions beginning August 1, 1999, 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 the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Committee for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions handled.

The South Texas onion marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of South Texas onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1997-98 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate of $0.05 per 50-pound container or equivalent that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee, in a mail vote, unanimously recommended 1999-2000 expenses of $271,000 for personnel, office, compliance, promotion, and research expenses. These expenses were approved in July 1999. The assessment rate and specific funding for research and promotion projects were to be recommended at a later Committee meeting.

The Committee subsequently met on September 16, 1999, and recommended 1999-2000 expenditures of $301,000 and an assessment rate of $0.04 per 50-pound container or equivalent of onions. In comparison, last year's budgeted expenditures were $271,000. The assessment rate of $0.04 is $0.01 lower than the rate currently in effect. The Committee voted to lower its assessment rate because at the current rate of assessment, income would have exceeded anticipated expenses by about $74,000 and the projected reserve on July 31, 2000 ($458,720), would have exceeded the level the Committee believed to be adequate to administer the program.

The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $97,200 for administrative expenses, $34,800 for compliance, $36,000 for promotion, and $133,000 for research projects. Budgeted expenses for these items in 1998-99 were $94,000, $36,000, $33,000, and $108,000, respectively.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of South Texas onions. Onion shipments for the year are estimated at 7.5 million 50-pound equivalents, which should provide $300,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (currently $384,720) will be kept within the maximum permitted by the order (approximately two fiscal periods' expenses; § 959.43).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 1999-2000 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 80 producers of South Texas onions in the production area and approximately 37 handlers subject to regulation under the marketing order. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

                    Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 1998-99 marketing year, onions produced on 13,782 acres were shipped by the industry's 37 handlers with the average and median volume handled being 147,669 and 102,478 fifty-pound bag equivalents, respectively. In terms of production value, total revenues for the 37 handlers were estimated to be $43.7 million, with average and median revenues being $1.1 million, and $820,000, respectively.                    Start Printed Page 2528

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 the 37 handlers regulated by the order would be considered small entities if only their spring onion revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $5,000,000 annual receipt threshold. All of the 80 producers may be classified as small entities based on the SBA definition if only their revenue from spring onions is considered. When revenues from all sources is considered, a majority of the producers would not be considered small entities because receipts would exceed $500,000.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 1999-2000 and subsequent fiscal periods from $0.05 to $0.04 per 50-pound container or equivalent of onions. The Committee recommended 1999-2000 expenditures of $301,000 and an assessment rate of $0.04 per 50-pound container or equivalent. The assessment rate of $0.04 is $0.01 lower than the 1998-99 rate. The quantity of assessable onions for the 1999-2000 fiscal period is estimated at 7.5 million 50-pound equivalents. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $97,200 for administrative expenses, $34,800 for compliance, $36,000 for promotion, and $133,000 for research projects. Budgeted expenses for these items in 1998-99 were $94,000, $36,000, $33,000, and $108,000, respectively.

The Committee voted to lower its assessment rate because at the current rate of assessment, income would have exceeded anticipated expenses by about $74,000 and the projected reserve on July 31, 2000 ($458,720), would have exceeded the level the Committee believed to be adequate to administer the program.

The Committee's recommended 1999-2000 expenditures of $301,000, include increases in administrative and office salaries, and research programs. Prior to arriving at this budget, the Committee considered information from various sources, including the Research Subcommittee and the Market Development Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the onion industry. The assessment rate of $0.04 per 50-pound carton or equivalent of assessable onions was then determined by dividing the total recommended budget by the quantity of assessable onions, estimated at 7.5 million 50-pound equivalents for the 1999-2000 fiscal period. This is approximately $1,000 below the anticipated expenses, which the Committee determined to be acceptable. Funds from the Committee's reserve would be used to make up the expected deficit.

A review of historical production and marketing information indicates that the grower price for the 1999 marketing season could range between $7.00 and $12.00 per 50-pound container or equivalent of onions. Therefore, the estimated assessment revenue for the 1999-2000 fiscal period as a percentage of total grower revenue could range between .571 and .333 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the September 16, 1999, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large South Texas 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.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

                    A proposed rule concerning this action was published in the                     **Federal Register**                     on November 26, 1999 (64 FR 66411). Copies of the proposed rule were also mailed or sent via facsimile to all onion handlers. Finally, the proposal was made available through the Internet by the Office of the Federal Register. A 30-day comment period ending December 27, 1999, was provided for interested persons to respond to the proposal. No comments were received.                

                    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/​fv/​moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the                     **FOR FURTHER INFORMATION CONTACT**                     section.                

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

                    Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the                     **Federal Register**                     because the 1999-2000 fiscal period began August 1, 1999, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable onions handled during such fiscal period. This action decreases the rate beginning with the 1999-2000 fiscal period. Further, handlers are aware of this rule which was recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule, and no comments were received.                

# List of Subjects in 7 CFR Part 959

- Marketing agreements
- Onions
- Reporting and recordkeeping requirements

For the reasons set forth in the preamble, 7 CFR part 959 is amended as follows:

# PART 959—ONIONS GROWN IN SOUTH TEXAS

1. The authority citation for 7 CFR part 959 continues to read as follows:

Authority:7 U.S.C. 601-674.2. Section 959.237 is revised to read as follows:

§ 959.237 

                                On and after August 1, 1999, an assessment rate of $0.04 per 50-pound                                 Start Printed Page 2529                                container or equivalent is established for South Texas onions.                            

Dated: January 11, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 00-1049 Filed 1-14-00; 8:45 am]

BILLING CODE 3410-02-P