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 FIR]

Onions Grown in South Texas; Amendment of Sunday Packing and

Loading Prohibitions

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, with change an interim final rule which removed the

restriction prohibiting handlers from packaging and loading onions on

Sunday. 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 removing the

prohibition to increase supplies of South Texas onions in the

marketplace. Heavy rainfall in the production area during late March

and most of April prevented handlers from packing and loading enough

onions to meet buyer needs. Removing the prohibition provided handlers

additional time to prepare onions for market and meet buyer needs. This

rule also changes an erroneous regulatory period ending date which

appeared in the interim final rule.

EFFECTIVE DATE: August 18, 1997.

FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager,

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 George J. Kelhart, Technical

Advisor, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-

6456; telephone: (202) 690-3919; 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, room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; telephone: (202) 720-2491; Fax: (202) 720-

5698.

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.

Due to record amounts of rainfall during late March and most of

April 1997, South Texas growers had difficulty harvesting their onions.

Normally, 1\1/2\ to 2 million 50-lb. equivalents of onions are shipped

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

shipped by that date.

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 indicated that, since the advent of

the heavy rains, all onions had to be dried in mechanical dryers prior

to packing. This disrupted the normal pattern of harvesting, packing,

and loading. Growers could not harvest more onions until the dryers

were emptied, and dryers could not be emptied until the dried onions

could be packed and shipped. Thus, the Sunday packing and loading

restrictions had placed an undue hardship on growers and handlers.

There was a need to pack and ship each day of the week.

The Committee met on April 16, 1997, and, by telephone vote,

unanimously recommended revising the current handling regulation to

remove the restriction on packing and loading onions on Sundays for the

remainder of the 1997 shipping season. That recommendation was intended

to provide handlers with greater flexibility and additional time to

prepare the onions for market.

If this recommendation had not been implemented, crop losses would

have been significant. In addition, the cessation in harvesting

activity would have resulted in increased unemployment among onion

field workers and employees at handlers' facilities. Finally, reduced

supplies would likely have resulted in consumers paying higher prices

for South Texas onions.

Thus, in the interest of growers, handlers, and consumers, the

interim final rule relaxed 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 onions during the period April

20, 1997, through May 20, 1997. This final rule finalizes that action.

In 1998, Sunday packing and loading prohibitions will again apply to

handlers marketing South Texas onions during the period March 1, 1998,

through May 20, 1998.

This final rule also corrects the June 15 ending date in the first

sentence of

[[Page 38204]]

Sec. 959.322. The correct date is ``June 4'', and the first sentence of

Sec. 959.322 is changed accordingly.

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 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.

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 heavy rains in late March

and most of April 1997, disrupted the normal pattern of harvesting,

packing, and loading. All onions had to be dried in mechanical dryers

prior to packing. Growers could not harvest more onions until the

dryers had been emptied, and the dryers could not be emptied until the

dried onions could be packed and shipped. Thus, the Sunday packing and

loading prohibition placed an undue burden on South Texas onion growers

and packers.

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, the Committee believed

that reduced supplies would likely have resulted in consumers paying

higher prices for these onions.

While the level of benefits of the interim final rule are difficult

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

and loading regulation impacted both small and large onion handlers

positively by helping them maintain markets in the phase of adverse

harvesting and packing conditions in 1997.

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 reviewed to reduce or eliminate

duplicate information collection burdens by industry and public sector

agencies. This final rule does not change those requirements.

The Department has not identified any relevant Federal rules that

duplicate, overlap, or conflict with this regulation.

An interim final rule regarding this action was issued by the

Department on April 18, 1997, and published in the Federal Register (62

FR 19667, April 23, 1997), with an effective date of April 19, 1997.

That rule provided a 30-day comment period which ended May 23, 1997. No

comments were received. However, as stated earlier, the interim final

rule, contained an erroneous regulatory period ending date and this

document changes it.

After consideration of all relevant material presented, including

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

finalizing the interim final rule, with change, 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.

Accordingly, the interim final rule amending 7 CFR part 959 which

was published at 62 FR 19667 on April 23, 1997, is adopted as a final

rule with the following change:

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.

Sec. 959.322 [Amended]

2. Section 959.322, introductory text, is amended by removing the

date ``June 15,'' in the first sentence and adding the date ``June 4,''

in its place.

* * * * *

Dated: July 11, 1997.

Sharon Bomer Lauritsen,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 97-18820 Filed 7-16-97; 8:45 am]

BILLING CODE 3410-02-P