This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

30577

Vol. 63, No. 108

Friday, June 5, 1998

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

[Docket No. FV98–959–2 FIR]

Onions Grown in South Texas;

Removal of Sunday Packing and

Loading Prohibitions

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, the

provisions of an interim final rule

which changed the handling regulation

prescribed under the South Texas onion

marketing order by removing the

Sunday packing and loading

prohibitions. The marketing order

regulates the handling of onions grown

in South Texas and is administered

locally by the South Texas Onion

Committee (Committee). This rule

allows the South Texas onion industry

to compete more effectively with other

growing areas, better meet buyer needs,

and increase supplies of South Texas

onions in the marketplace.

EFFECTIVE DATE: July 6, 1998.

FOR FURTHER INFORMATION CONTACT:

Belinda G. Garza, McAllen Marketing

Field Office, Marketing Order

Administration Branch, F&V, AMS,

USDA, 1313 E. Hackberry, McAllen, TX

78501; 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) 205–6632. Small

businesses may request information on

compliance with this regulation by

contacting Jay Guerber, 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) 205–6632.

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.’’

The Department is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule is not intended to

have retroactive effect. This rule will

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with 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. A

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 continues in effect

modifications to language in the order’s

handling regulation to remove the

Sunday packaging and loading

prohibitions. It also continues in effect

modifications to § 959.322(f)(5) to

remove all references to the Sunday

packaging and loading prohibitions.

This rule will continue to provide

handlers with greater flexibility and

additional time to prepare onions for

market.

Section 959.322 of the order formerly

prohibited the packaging or loading of

onions on Sunday during the period

March 1 through May 20 of each season.

This prohibition had been in place for

35 years to foster orderly marketing

conditions. Handlers were permitted to

move onions that were already

inspected and billed, but were not

prevented from harvesting onions or

taking them to the packing shed for

storage or to the dryers. The onions,

however, could not be packaged or

loaded on Sunday during that time

period.

At a Committee meeting on November

6, 1997, producers and handlers

expressed the view that the Sunday

holiday had outlived its usefulness. In

recent seasons, the Sunday packaging

and loading prohibition had hindered

the movement of South Texas onions by

not allowing producers and handlers to

harvest and pack each day of the week.

Last year, the South Texas area received

record amounts of rainfall and

producers had difficulty harvesting their

onions. The packaging and loading

restriction prevented handlers from

packaging or loading onions, even when

it was dry by Sunday. These heavy

periods of rain disrupted the normal

pattern of harvesting, packing, and

loading.

Due to these severe conditions last

season, the Committee unanimously

recommended relief from the Sunday

packing and loading restriction in April

through May 20 of the onion season.

The restriction was removed and

handlers had the flexibility to package

and load onions on Sunday, which

helped them to salvage some of their

crop. According to the Committee’s preseason estimate, five million fifty-pound

bags were expected to be harvested last

season. However, due to the inclement

weather, only 2.78 million fifty-pound

bags were shipped.

At its November 6, 1997, meeting, the

Committee unanimously recommended

revising the current handling regulation

to remove the restriction on packaging

and loading onions on Sundays. This

recommendation was intended to allow

the South Texas onion industry to

compete more effectively with other

growing areas, better meet buyer needs,

and increase supplies of South Texas

onions in the marketplace.

Continuing to prohibit the packaging

and loading of onions on Sunday could
30578 Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations

have prevented the South Texas onion

industry from marketing more of their

onions. Producers objected to the

Sunday restriction because if the shed

was full of onions, they were prevented

from sending more onions to the sheds.

Removing the Sunday restriction

allowed handlers to package and load

onions on Sunday and salvage the

producers’ crops if there were a threat

of adverse weather conditions.

The Committee noted that competing

areas pack and load on Sundays, and

that the restrictive Sunday holiday had

prevented the South Texas onion

industry from competing effectively

with other areas that do not restrict

packing or loading on Sundays. The

South Texas onion industry wanted the

same opportunity. Continuing to

prohibit the packing and loading of

onions on Sunday would have

presented an unreasonable and

unnecessary hardship on handlers in

the production area. If the prohibitions

had continued, the Committee believed

that Texas markets would have been

taken by competing areas, and that the

Texas onion industry would not have

been able to meet their buyers’ needs.

The Committee’s recommendation

was intended to improve producers’ and

handlers’ returns by allowing them to

package and load onions on Sunday

when their operations were curtailed for

some reason during the previous week.

There had been times when handlers

had been packing onions on Saturday

night, and had to stop at 12:01 a.m. even

though the packing had not been

completed. This restriction was

unacceptable to the South Texas onion

industry. The producers and handlers

needed the flexibility to pack and ship

each day of the week to effectively meet

their competition.

This action continues to allow

handlers to package and load onions on

Sunday, and permits producers to

harvest and deliver their onions to

packing sheds each day of the week.

This provides producers and handlers

more flexibility in meeting buyer needs

and additional time for preparing

onions for market.

Removing the Sunday packing and

loading prohibitions also required that

all references to the Sunday restrictions

be removed from § 959.322(f)(5). Prior to

the issuance of the interim final rule,

the prohibition against packing or

loading onions on Sunday could have

been modified or suspended to permit

the handling of onions for export

provided that such handling complied

with safeguard procedures. In addition,

whenever the handler graded, packaged,

and shipped onions for export on any

Sunday, such handler was required to

cease all grading, packaging, and

shipping on the first weekday following

shipment for the same length of time as

the handler operated on Sunday. The

Committee recommended the removal

of such references. Thus, § 959.322(f)(5)

was revised to remove all references to

the Sunday prohibition.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this action on small entities.

Accordingly, AMS has prepared this

final regulatory flexibility analysis.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and the rules issued thereunder, are

unique in that they are brought about

through group action of essentially

small entities acting on their own

behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 38 handlers

of South Texas onions who are subject

to regulation under the order and

approximately 70 onion producers in

the regulated area. Small agricultural

service firms have been defined by the

Small Business Administration (SBA)

(13 CFR 121.601) as those having annual

receipts of less than $5,000,000, and

small agricultural producers are defined

as those having annual receipts of less

than $500,000.

Most of the handlers are vertically

integrated corporations involved in

producing, shipping, and marketing

onions. For the 1996–97 marketing year,

onions produced on 12,175 acres were

shipped by the industry’s 38 handlers;

with the average acreage and median

acreage handled being 310 acres and

177 acres, respectively. In terms of

production value, total revenues for the

38 handlers were estimated to be $23.6

million; with average and median

revenue being $620,000 and $146,000,

respectively. The industry is highly

concentrated as the largest 8 handlers

(largest 25 percent) controlled 62

percent of the acreage and 77 percent of

onion production.

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 the 38 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 70 producers may be classified as

small entities based on the SBA

definition if only their revenue from

spring onions is considered. When

revenue from all sources is considered,

a majority of the producers would not

be considered small entities because

many of the producers would exceed

the $500,000 figure.

This rule continues to relieve the

Sunday ban on packing and loading

onions from South Texas allowing

individual firms the flexibility to

modify operations to effectively

compete with production areas not

bound by such restrictions, to fill

customer orders, and to take advantage

of available transportation.

The Committee recommended this

rule change for the purpose of ensuring

a timely flow of available supplies, and

thus help to maintain stability in the

onion market. Being reasonably assured

of a stable price and market provides

South Texas onion producers and

handlers with added flexibility to

maintain proper cash flow and to meet

annual expenses. The market and price

stability provided by the order

potentially benefits the smaller handlers

more than such provisions benefit large

handlers. Smaller producers and

handlers are more dependent upon

stable prices. Larger handlers are more

diversified and not as dependent upon

price stability. Therefore, the relief of

packing and loading restrictions on

Sundays has small entity orientation.

While the level of benefits of

removing the Sunday packing and

loading prohibitions are difficult to

quantify, this action continues to allow

the South Texas onion industry to

compete more effectively with other

growing areas, better meet buyer needs,

and increase supplies of South Texas

onions in the marketplace. Last season,

the South Texas onion industry

expected to ship 5 million 50-pound

bags of onions with a production value

of $45.6 million. However, inclement

weather during a substantial part of the

shipping season limited shipments. Late

in the season, the packing and loading

restrictions were removed to help

producers and handlers salvage their
Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30579

crops. Industry shipments totaled 2.8

million bags with a production value of

$25.4 million. The suspension for last

season provided producers and handlers

more flexibility in meeting the needs of

their buyers.

The Committee believes that

providing handlers the ability to pack

and load on Sundays will continue to

benefit the industry. Removal of the

prohibitions provided producers with

an additional window of opportunity to

harvest and deliver their onions to

handlers for sorting, grading, packaging,

and loading. The continued use of this

self-imposed restriction could have

caused the South Texas area to lose its

markets to other competing areas,

because these areas can package and

load onions on Sunday. Removing the

Sunday packaging and loading

prohibitions positively impacted both

small and large handlers by helping

them maintain markets.

This action is intended to improve

producers’ and handlers’ returns by

allowing them to package and load

onions on Sunday if their operations

were curtailed for some reason during

the previous week. The ability to pack

and load on Sunday has helped

handlers fill unexpected rush orders

made at the end of the normal packing

week. There have been times when

handlers were packing onions on

Saturday night, and at 12:01 a.m. had to

stop even though the packing had not

yet been completed. This hindered

handler operations and unduly delayed

the packing and shipping of onions to

meet buyer needs.

The Committee considered not

removing the Sunday packing and

loading prohibitions. However, not

relaxing the regulation could have

resulted in significant crop losses, as

occurred last season, prior to the

emergency suspension of the

prohibition. Also, the cessation in

harvesting activity last season resulted

in increased unemployment among

onion field workers and employees at

handlers’ facilities. In addition, reduced

supplies could result in consumers

paying higher prices for onions. The

opportunity to pack and load onions

seven days a week gives producers and

handlers more time to harvest and

prepare onions for market. This

increased flexibility enables the

industry to better meet buyer needs and

compete more effectively with its

competition.

This rule will not impose any

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

collection requirements and duplication

by industry and public sectors. In

addition, the Department has not

identified any relevant Federal rules

that duplicate, overlap, or conflict with

this rule.

Further, 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. Like all Committee

meetings, the November 6, 1997,

meeting was a public meeting and all

entities, both large and small, were able

to express their views on this issue.

Finally, interested persons were invited

to submit information on the regulatory

and informational impacts of this action

on small businesses.

An interim final rule concerning this

action was published in the Federal

Register on February 24, 1998 (63 FR

9128). The interim final rule was made

available through the Internet by the

Office of the Federal Register. A 60-day

comment period was provided for

interested persons to respond to the

interim final rule. The comment period

ended on April 27, 1998, and no

comments were received.

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 finalizing the interim final rule,

without change, as published in the

Federal Register (63 FR 9128, February

24, 1998), will tend to effectuate the

declared policy of the Act.

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

Accordingly, the interim final rule

amending 7 CFR part 959 which was

published at 63 FR 9128 on February 24,

1998, is adopted as a final rule without

change.

Dated: June 1, 1998.

Sharon Bomer Lauritsen,

Acting Deputy Administrator, Fruit and

Vegetable Programs.

[FR Doc. 98–15016 Filed 6–4–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 985

[Docket No. FV98–985–2 FIR]

Marketing Order Regulating the

Handling of Spearmint Oil Produced in

the Far West; Revision of the Salable

Quantity and Allotment Percentage for

Class 3 (Native) Spearmint Oil for the

1997–98 Marketing Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting as

a final rule, without change, the

provisions of an interim final rule

increasing the quantity of Class 3

(Native) spearmint oil produced in the

Far West that handlers may purchase

from, or handle for, producers during

the 1997–98 marketing year. This rule

was recommended by the Spearmint Oil

Administrative Committee (Committee),

the agency responsible for local

administration of the marketing order

for spearmint oil produced in the Far

West. The Committee recommended

this rule to avoid extreme fluctuations

in supplies and prices and thus help to

maintain stability in the Far West

spearmint oil market.

EFFECTIVE DATE: June 8, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert J. Curry, Northwest Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, room 369, Portland,

Oregon 97204–2807; telephone: (503)

326–2724; Fax: (503) 326–7440; or Anne

M. Dec, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525, South Building, P.O. Box 96456,

Washington, DC 20090–6456; telephone:

(202) 720–2491; Fax: (202) 205–6632.

Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, room 2525, South

Building, P.O. Box 96456, Washington,

DC 20090–6456; telephone (202) 720–

2491; Fax: (202) 205–6632.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Order No.

985 (7 CFR Part 985), regulating the

handling of spearmint oil produced in

the Far West (Washington, Idaho,

Oregon, and designated parts of Nevada,

and Utah), hereinafter referred to as the