Onions Grown in South Texas; Amendment of Sunday Packing and Loading Prohibitions

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

[Docket No. FV97-959-1 IFR]

Onions Grown in South Texas; Amendment of Sunday Packing and

Loading Prohibitions

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule amends, for the remainder of the 1997

period, the regulation under the South Texas onion marketing order

which specifies that no handler may package or load onions on Sunday

during the period March 1 through May 20 to remove the prohibition. The

order regulates the handling of onions grown in South Texas and is

administered locally by the South Texas Onion Committee (Committee).

The Committee unanimously recommended the change to increase supplies

of South Texas onions in the marketplace. Recent heavy rainfall in the

production area has prevented handlers from packing and loading enough

onions to meet buyer needs.

DATES: Effective April 19, 1997; comments received by May 23, 1997 will

be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent in triplicate to the Docket

Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456, Fax # (202) 720-5698. All comments

should reference the docket number and the date and page number of this

issue of the Federal Register and will be made available for public

inspection in the Office of the Docket Clerk during regular business

hours.

FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, McAllen Marketing

Field Office, Marketing Order Administration Branch, F&V, AMS, USDA,

1313 E. Hackberry, McAllen, Texas 78501; telephone: (210) 682-2833, Fax

# (210) 682-5942; or James B. Wendland, Marketing Specialist, Marketing

Order Administration Branch, F&V, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456: telephone: (202) 720-2170, Fax #

(202) 720-5698. Small businesses may request information on compliance

with this regulation by contacting: Jay Guerber, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-

2491; Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 143 and Marketing Order No. 959 (7 CFR part 959), as

amended, regulating the handling of onions grown in South Texas,

hereinafter referred to as the ``order.'' This 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.''

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. 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 date of the entry of the ruling.

Due to record amounts of rainfall in the last 40 days, South Texas

growers have had difficulty harvesting their onions. Normally, 1\1/2\

to 2 million 50-lb. equivalents of onions have been shipped by April

15, but this year only approximately \1/2\ million were shipped by that

date.

Currently, Section 959.322 of the order prohibits the packaging and

loading of onions on Sundays during the March 1 through May 20 period

each season. This restriction was implemented to contribute to orderly

marketing conditions. However, the industry indicates that, since the

advent of the heavy rains, all onions must be dried in mechanical

dryers prior to packing. This has disrupted the normal pattern of

harvesting, packing and loading. Growers cannot harvest more onions

until the dryers are emptied. The dryers can not be emptied if onions

are unable to be packed and shipped each day of the week.

The Committee met on April 16 and, by telephone vote, unanimously

recommended revising the current handling regulation to remove the

restriction on packing and loading onions on Sundays. This action will

provide handlers with greater flexibility and additional time to

prepare the onions for market.

If this action is not taken, crop losses will be significant. The

cessation in harvesting activity will result in increased unemployment

among onion field workers and employees at handlers' facilities. In

addition, reduced supplies would likely result in consumers paying

higher prices for these onions.

Thus, this rule relaxes requirements by modifying language in the

order's handling regulation, as authorized by Sec. 959.52 of the order,

to allow Sunday packing and loading of such onions during the remainder

of the 1997 period.

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.

[[Page 19668]]

Accordingly, AMS has prepared this initial 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 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 36 handlers of South Texas onions who are subject to

regulation under the order and approximately 60 producers in the

regulated area. Small agricultural service firms, which includes

handlers, 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 having annual

receipts of less than $500,000. The majority of handlers and producers

of South Texas onions may be classified as small entities.

Committee meetings are widely publicized in advance and are held in

a location central to the production area. The meetings are open to all

industry members (including small business entities) and other

interested persons--who are encouraged to participate in the

deliberations and voice their opinions on topics under discussion.

Thus, Committee recommendations can be considered to represent the

interests of small business entities in the industry.

Many years of marketing experience led to the development of the

current shipping and packing procedures. These procedures have helped

the industry address marketing problems by keeping supplies and

movement of packed onions in balance with market needs, and

strengthening market conditions. However, the recent heavy rains have

disrupted the normal pattern of harvesting, packing and loading and all

onions must now be dried in mechanical dryers prior to packing. Growers

cannot harvest more onions until the dryers are emptied and dryers can

not be emptied if onions are unable to be packed and shipped each day

of the week.

The Committee considered not relaxing the regulation for the

remainder of the season, but felt that would result in significant crop

losses. The Committee also felt that a cessation in harvesting activity

would result in increased unemployment among onion field workers and

employees at handlers' facilities. In addition, reduced supplies would

likely result in consumers paying higher prices for these onions.

While the level of benefits of this rulemaking are difficult to

quantify, the stabilizing effects of the relaxation in the packing and

loading regulation impact both small and large handlers positively by

helping them maintain markets even though onion harvesting and packing

conditions have fluctuated widely this season.

There are some reporting, recordkeeping and other compliance

requirements under the marketing order. The reporting and recordkeeping

burdens are necessary for compliance purposes and for developing

statistical data for maintenance of the program. The forms require

information which is readily available from handler records and which

can be provided without data processing equipment or trained

statistical staff. As with other, similar marketing order programs,

reports and forms are periodically studied to reduce or eliminate

duplicate information collection burdens by industry and public sector

agencies. This interim final rule does not change those requirements.

The Department has not identified any relevant Federal rules that

duplicate, overlap, or conflict with this regulation.

A 30-day comment period is provided to allow interested persons to

respond to this interim final rule. All written comments received

within the comment period regarding this action or its effect on small

business entities will be considered prior to finalization of this

interim final rule.

After consideration of all relevant material presented, including

the Committee's recommendation, and other information, it is found that

this interim final rule, as hereinafter set forth, will tend to

effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this rule until 30 days after publication in the Federal Register

because: (1) Record rainfall in the South Texas production area

necessitates emergency rulemaking and making this action effective on

the date specified; (2) this rule relaxes requirements on regulated

handlers; (3) handlers are aware of this action which was unanimously

recommended by the Committee at an April 16, 1997, meeting; and (4)

this interim final rule provides a 30-day comment period, and all

comments timely received will be considered prior to finalization of

this rule.

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. In Sec. 959.322, the introductory paragraph is revised to read

as follows:

Sec. 959.322 Handling regulation.

During the period beginning March 1 and ending June 15, no handler

shall handle any onions unless they comply with paragraphs (a) through

(d) or (e) or (f) of this section. In addition, no handler may package

or load onions on Sunday during the period March 1 through May 20,

except during the period April 20, 1997, through May 20, 1997.

* * * * *

Dated: April 18, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97-10570 Filed 4-18-97; 4:19 pm]

BILLING CODE 3410-02-P