35592 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

(b) With respect to physical

appearance:

(1) Reasonably free-flowing. Pours in

a fairly constant, uniform stream from

the open end of a tilted container or

scoop.

(2) Very slight pressure. Lumps fall

apart with only light touch.

(3) Lumpy. Loss of powdery

consistency but not caked into hard

chunks.

(4) Natural color. A color that is white

to light cream.

Dated: June 28, 1996.

Lon Hatamiya,

Administrator.

[FR Doc. 96–17200 Filed 7–5–96; 8:45 am]

BILLING CODE 3410–02–P

7 CFR Part 958

[FV96–958–1FR]

Onions Grown in Certain Designated

Counties in Idaho, and Malheur

County, Oregon, and Imported Onions;

Modification of Size Requirements

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule changes the

‘‘repacker/prepacker’’ size designations

for all varieties of onions except white

or red varieties by increasing the

minimum diameter from 11⁄2 inches to

13⁄4 inches, and the maximum diameter

from 21⁄2 inches to 23⁄4 inches for onions

in this size category. Recent trends in

buyer preference reflect an increasing

demand for larger size onions in the

‘‘repacker/prepacker’’ category. This

final rule will benefit producers and

handlers by increasing their flexibility

and efficiency in the packaging of

‘‘repacker/prepacker’’ size onions. As

provided under section 8e of the

Agricultural Marketing Agreement Act

of 1937, the change to the minimum size

requirement also applies to all imported

onions except white or red varieties.

EFFECTIVE DATE: July 15, 1996.

FOR FURTHER INFORMATION CONTACT:

Robert J. Curry, Northwest Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 1220

SW Third Avenue, room 369, Portland,

Oregon 97204–2807; telephone:

(503)326–2724; FAX: (503)326–7440; or

Robert F. Matthews, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2523, South Building, P.O. Box 96456,

Washington, D.C. 20090–6456;

telephone: (202)690–0464; FAX:

(202)720–5698.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing

Agreement No. 130 and Marketing

Order No. 958 (7 CFR Part 958), both as

amended, regulating the handling of

onions grown in certain designated

counties in Idaho and Malheur County,

Oregon. The marketing agreement and

marketing 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.

This final rule, which also affects the

minimum size requirements for all

varieties of imported onions, except

white or red varieties, is also issued

pursuant to section 8e of the Act. The

provisions of section 8e and the onion

import regulations are discussed later in

this final rule.

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This final rule has been reviewed

under Executive Order 12778, Civil

Justice Reform. This action is not

intended to have retroactive effect. This

final 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.

There are no administrative

proceedings which must be exhausted

prior to any judicial challenge to the

provisions of import regulations issued

under section 8e of the act.

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.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and rules issued thereunder, are

unique in that they are brought about

through group action of essentially

small entities acting on their own

behalf. Thus, both statutes have small

entity orientation and compatibility.

Import regulations issued under the

Act are based on those established

under Federal marketing orders which

regulate the handling of domestically

produced products. Thus, this final rule

should have small entity orientation,

and impact both small and large

business entities in a manner

comparable to those issued under

marketing orders.

There are currently 34 handlers

subject to regulation under the

marketing order and approximately 550

onion producers in the regulated

production area. In addition, at least 148

importers of onions are subject to

import regulations and will be affected

by this final rule. Small agricultural

service firms have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

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

agricultural producers are defined as

those whose annual receipts are less

than $500,000. The majority of handlers

and producers of Idaho-Eastern Oregon

onions may be classified as small

entities. The majority of importers may

also be classified as small entities.

This final rule changes the ‘‘repacker/

prepacker’’ size designations for all

varieties of onions except white or red

varieties by increasing the minimum

diameter from 11⁄2 inches to 13⁄4 inches,

and the maximum diameter from 21⁄2

inches to 23⁄4 inches for onions in this

size category. Recent trends in buyer

preference reflect an increasing demand

for larger size onions in the ‘‘repacker/

prepacker’’ category. This final rule will

benefit producers and handlers by

allowing them to better meet the needs

of their customers, who desire slightly

larger ‘‘repacker/prepacker’’ size onions.

As provided under section 8e of the

Act, the change to the minimum size

requirement also applies to all imported

onions except white or red varieties.

The benefits to producers and handlers

should apply also to importers. The

slight increase in minimum size is

expected also to benefit importers by

recognizing recent trends in buyer

preference for larger size onions.

Because this rule is expected to

benefit and have a positive impact on

producers, handlers, importers, and

consumers of onions, the AMS has

determined that the issuance of this

final rule will not have a significant
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35593

economic impact on a substantial

number of small entities.

Pursuant to authority contained in

section 958.51 of the marketing order,

the Idaho-Eastern Oregon Onion

Committee (Committee), at its

November 16, 1995, meeting,

unanimously recommended changing

the minimum and maximum sizes set

forth in section 958.328(a)(3)(ii) of the

handling regulation. For this size

category, the Committee recommended

increasing the minimum diameter from

11⁄2 inches to 13⁄4 inches, and the

maximum diameter from 21⁄2 inches to

23⁄4 inches for all onions except white

or red varieties produced and handled

in the production area. Yellow onions

are the major variety produced in the

regulated production area.

This final rule modifies a marketing

order size category that is recognized by

the onion industry as ‘‘repacker’’ or

‘‘prepacker’’ size onions. Onions in this

size category are generally packed and

shipped in 50-pound sacks for later

repacking into various consumer packs.

The U.S. Standards for Grades of

Onions were recently amended to

include a classification for ‘‘repacker/

prepacker’’ size onions (60 FR 46976,

September 8, 1995), effective October

10, 1995. Section 51.2836 of the U.S.

Standards defines such onions as those

ranging from a minimum diameter of

13⁄4 inches to a maximum diameter of 3

inches. The U.S. Standards also specify

that not more than 5 percent of the

onions in a lot may be undersized and

that not more than 10 percent may be

oversized.

Recent trends in buyer preference

reflect an increasing demand for larger

size onions in the ‘‘repacker/prepacker’’

category. The Committee reports that

the current maximum diameter of 21⁄2

inches for this size category is too

restrictive and has resulted in a high

percentage of onions being packed in a

different category due to oversize. This

has resulted in fewer ‘‘repacker/

prepacker’’ size onions being available

for market. With an increase in the

maximum allowable diameter to 23⁄4

inches for ‘‘repacker/prepacker’’ size

onions, the Committee expects the

quantity of such onions available for

market to increase. The Committee

recommended an increase to 23⁄4 inches

rather than 3 inches, the upper limit of

the size range specified in the U.S.

Standards, because the smaller size is

more suitable for this industry and its

customers. In addition to the increase in

the maximum diameter for onions in

this category, the Committee

recommended that the minimum

diameter be increased from 11⁄2 inches

to 13⁄4 inches to be the same as the

recently amended U.S. Standards.

Any costs to handlers and producers

attributable to this regulation are

expected to be offset by the benefits

derived from improved returns. The

modification increases the volume of

onions marketed in this size category,

and is expected to result in higher

returns for producers and handlers.

Section 8e of the Act requires that

when certain domestically produced

commodities, including onions, are

regulated under a Federal marketing

order, imports of that commodity must

meet the same or comparable grade,

size, quality, or maturity requirements.

Section 8e also provides that whenever

two or more marketing orders regulating

the same commodity produced in

different areas of the United States are

concurrently in effect, the Secretary

shall determine which of the areas

produces the commodity in more direct

competition with the imported

commodity. Imports must then meet the

requirements established for the

particular area.

Grade, size, quality, and maturity

regulations have been issued regularly

under both Marketing Order 958 and

Marketing Order 959, which regulates

the handling of onions grown in South

Texas. Pursuant to section 8e of the Act,

the current import regulation (7 CFR

980.117) specifies that import

requirements for onions are to be based

on the seasonal categories of onions

grown in both marketing order areas.

The import regulation specifies that

imported onions must meet the

requirements of Marketing Order 958

during the June 5 through March 9

period each season (61 FR 25556; May

22, 1996), and Marketing Order 959

through the remainder of the year. The

current import regulation also provides

that all varieties of imported onions,

except for white varieties, must be a

minimum of 11⁄2 inches in diameter.

This final rule will change the import

requirements for the period June 5

through March 9 each marketing year to

provide that all varieties of onions

except white or red varieties shall be a

minimum of 13⁄4 inches in diameter.

While no changes are required in the

language of § 980.117, all imported

onions other than white or red varieties

will be required to meet the minimum

size requirement herein.

The proposed rule concerning this

action was published in the May 6,

1996, Federal Register (61 FR 20188),

with a 30-day comment period ending

June 5, 1996. No comments were

received.

After consideration of all relevant

matters presented, including the

information and recommendations

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.

In accordance with section 8e of the

Act, the United States Trade

Representative has concurred with the

issuance of this final rule.

Pursuant to 5 U.S.C. 553, it is also

found and determined that good cause

exists for not postponing the effective

date of this action until 30 days after

publication in the Federal Register

because: (1) This action will provide

handlers more marketing flexibility in

meeting buyer preferences; (2) the 1996

crop harvest and shipments are

expected to begin in August and this

action needs to be effective promptly to

allow handlers to make their marketing

plans; and (3) interested persons were

invited to submit written comments and

no comments were submitted.

List of Subjects in 7 CFR Part 958

Marketing agreements, Onions,

Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 958 is hereby

amended as follows:

PART 958—ONIONS GROWN IN

CERTAIN DESIGNATED COUNTIES IN

IDAHO, AND MALHEUR COUNTY,

OREGON

1. The authority citation for 7 CFR

part 958 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Section 958.328 is amended by

revising paragraph (a)(3)(ii) to read as

follows:

§ 958.328 Handling Regulation.

* * * * *

(a) * * *

(3) * * *

(ii) U.S. No. 1, 13⁄4 inches minimum

to 23⁄4 maximum diameter; or

* * * * *

Dated: June 28, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96–17197 Filed 7–5–96; 8:45 am]

BILLING CODE 3410–02–P