[Federal Register Volume 61, Number 131 (Monday, July 8, 1996)]
[Rules and Regulations]
[Pages 35592-35593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17197]


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DEPARTMENT OF AGRICULTURE
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.

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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 1\1/2\ inches to 1\3/4\ inches, 
and the maximum diameter from 2\1/2\ inches to 2\3/4\ 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 1\1/2\ inches to 1\3/4\ inches, 
and the maximum diameter from 2\1/2\ inches to 2\3/4\ 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

[[Page 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 1\1/2\ inches to 1\3/4\ inches, 
and the maximum diameter from 2\1/2\ inches to 2\3/4\ 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 1\3/4\ 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 2\1/2\ 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 2\3/4\ 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 2\3/4\ 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 1\1/2\ inches to 1\3/4\ 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 1\1/2\ 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 1\3/4\ inches in 
diameter. While no changes are required in the language of 
Sec. 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:


Sec. 958.328  Handling Regulation.

* * * * *
    (a) * * *
    (3) * * *
    (ii) U.S. No. 1, 1\3/4\ inches minimum to 2\3/4\ 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