Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon; Secretary's Decision and Referendum Order on the Proposed Marketing Agreement and Order

Proposed Rules

Federal Register

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Proposed Rules

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 956

[Docket No. 94AMA-FV-956-1; FV93-956-1PR]

Sweet Onions Grown in the Walla Walla Valley of Southeast

Washington and Northeast Oregon; Secretary's Decision and Referendum

Order on the Proposed Marketing Agreement and Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This decision proposes the issuance of a marketing agreement

and order for Walla Walla Sweet Onions in southeast Washington and

northeast Oregon and provides growers the opportunity to vote in a

referendum to determine if they favor the proposed order. For the

purposes of this document, the term ``Walla Walla Sweet Onions'' refers

to sweet onions grown in the proposed production area, which consists

of designated parts of Walla Walla County, Washington, and designated

parts of Umatilla County, Oregon. The proposed order and agreement

would authorize production and marketing research and marketing

development and promotion projects, including paid advertising, and

would authorize container markings. The order would be administered by

a ten-member committee consisting of six producer members, three

handler members, and a public member. The order would be financed by

assessments on handlers of Walla Walla Sweet Onions grown in the

production area. A primary objective of this program would be to

improve producer returns by strengthening consumer demand through

various promotional activities and by reducing production and marketing

costs through production and marketing research. Walla Walla Sweet

Onion producers would vote in a referendum to determine if they favor

issuance of the proposed marketing order.

grown in the

production area. A primary objective of this program would be to

improve producer returns by strengthening consumer demand through

various promotional activities and by reducing production and marketing

costs through production and marketing research. Walla Walla Sweet

Onion producers would vote in a referendum to determine if they favor

issuance of the proposed marketing order.

DATES: The referendum shall be conducted from April 7 through April 14,

1995. The representative period for the purpose of the referendum

herein ordered is January 1, 1994, through December 31, 1994.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing

Field Office, Marketing Order Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 1220 S.W. Third Avenue, room 369,

Portland, Oregon, 97204; telephone: 503-326-2724, FAX: 503-326-7440; or

Robert F. Matthews, Marketing Order Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington,

D.C. 20090-6456; telephone: 202-690-0464, FAX: 202-720-5698.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice

of Hearing, issued October 26, 1993, and published in the Federal

Register on October 29, 1993 (58 FR 58105); Recommended Decision and

Opportunity to File Written Exceptions to the Proposed Marketing

Agreement and Order, issued November 3, 1994, and published in the

Federal Register on November 10, 1994 (59 FR 56254).

This administrative action is governed by the provisions of

sections 556 and 557 of Title 5 of the United States Code, and is

therefore excluded from the requirements of Executive Order 12866.

Preliminary Statement

tunity to File Written Exceptions to the Proposed Marketing

Agreement and Order, issued November 3, 1994, and published in the

Federal Register on November 10, 1994 (59 FR 56254).

This administrative action is governed by the provisions of

sections 556 and 557 of Title 5 of the United States Code, and is

therefore excluded from the requirements of Executive Order 12866.

Preliminary Statement

This proposed marketing agreement and order was formulated on the

record of a public hearing held at Walla Walla, Washington, on November

15, 1993, to consider a proposed marketing agreement and order

regulating the handling of sweet onions grown in the Walla Walla Valley

of Southeast Washington and Northeast Oregon. The hearing was held

pursuant to the provisions of the Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the

Act, and the applicable rules of practice and procedure governing the

formulation of marketing agreements and marketing orders (7 CFR part

900). Approximately 25 witnesses, including Walla Walla Sweet Onion

producers, handlers, and a Washington State University researcher,

testified in support of the order. Proponents emphasized that Walla

Walla Sweet Onion producers need a Federal marketing order to

effectively compete with other sweet onion producing areas. No one

present at the hearing testified in opposition to the proposed order.

At the close of the hearing, January 15, 1994, was established as the

date by which briefs, statements, and proposed corrections to the

transcript were due. No briefs were received.

The proponents testified that Walla Walla Sweet Onion producers, in

order to remain competitive with other sweet onion producing areas,

must conduct research and promotion programs to reduce production and

marketing costs and increase sales. Such programs should include

production and marketing research projects and promotion projects,

including paid advertising

due. No briefs were received.

The proponents testified that Walla Walla Sweet Onion producers, in

order to remain competitive with other sweet onion producing areas,

must conduct research and promotion programs to reduce production and

marketing costs and increase sales. Such programs should include

production and marketing research projects and promotion projects,

including paid advertising.

Testimony indicated that voluntary research and development efforts

by the Walla Walla Sweet Onion industry have not been successful

because of the lack of a coherent research and development plan with

broad-based industry support. Also, a relatively small percentage of

the U.S. onion crop is produced in the proposed production area in

Walla Walla County, Washington, and Umatilla County, Oregon, and

individual producers and handlers cannot implement an effective

research, marketing development, and promotion program. By contrast,

most other onion growing areas in the United States are large enough to

convince private entities, such as seed companies, to conduct

production research and developmental efforts with the result being new

varieties specifically suited to those areas. Proponents believe that

an industry-wide program is therefore necessary to enable the pooling

of resources to address common problems. A single producer or even two

or three producers cannot marshal the resources necessary to conduct

effective research, marketing, and promotion programs including paid

advertising.

Upon the basis of evidence introduced at the hearing and the record

thereof, the Administrator of the Agricultural Marketing Service (AMS)

on November 3, 1994, filed with the Hearing Clerk, U. S. Department of

Agriculture, a Recommended Decision and Opportunity to File Written

Exceptions Thereto by December 12, 1994.

One exception was received from Mr. David R. Darrington of Agri-

Pack, Inc., Pasco, Washington. Mr. Darrington's exception concerned :

record

thereof, the Administrator of the Agricultural Marketing Service (AMS)

on November 3, 1994, filed with the Hearing Clerk, U. S. Department of

Agriculture, a Recommended Decision and Opportunity to File Written

Exceptions Thereto by December 12, 1994.

One exception was received from Mr. David R. Darrington of Agri-

Pack, Inc., Pasco, Washington. Mr. Darrington's exception concerned :

(1) His belief that the proponent group's intent was to limit the

production of Walla Walla Sweet Onions and competition among Walla

Walla producers and handlers; (2) his belief that low producer returns

in recent years were due to low quality onions; (3) the extent of sweet

onion production in the State of Washington; (4) the sweetness of Walla

Walla onions on a season to season basis; and (5) the soil type

required to grow Walla Walla Sweet Onion varieties that can be marketed

as Walla Walla Sweet Onions, and the size of the proposed production

area. These points are discussed in the Findings and Conclusions below.

Small Business Consideration

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.

601 et seq.), the Administrator of the Agricultural Marketing Service

considered the economic impact of this action on small entities. The

record indicates that there are approximately nine handlers of Walla

Walla Sweet Onions in the proposed production area and 50 producers.

Small agricultural service firms have been defined by the Small

Business Administration (SBA) (13 CFR 121.601) as those whose annual

receipts are less than $5,000,000, and small agricultural producers as

those having annual receipts of less than $500,000. The majority of the

handlers and producers may be classified as small entities.

During the 1992 season, commercial shipments of Walla Walla Sweet

Onions totaled about 390,000 hundredweight at an average f.o.b. price

of $16.60 per hundredweight for a total value of $6,474,000. An

indeterminate volume, probably about 10 percent, was sold at roadside

stands

nnual receipts of less than $500,000. The majority of the

handlers and producers may be classified as small entities.

During the 1992 season, commercial shipments of Walla Walla Sweet

Onions totaled about 390,000 hundredweight at an average f.o.b. price

of $16.60 per hundredweight for a total value of $6,474,000. An

indeterminate volume, probably about 10 percent, was sold at roadside

stands. While there is a great variance in the size of individual

handlers' operations, the record indicates that nearly all of the

handlers that would be regulated under this order would qualify as

small firms under the SBA's definition. Witnesses testified that

because most of the producers and handlers of Walla Walla Sweet Onions

are small, they are unable to individually finance the types of

research and promotion efforts needed by the industry. A marketing

order program would provide a means for these small entities to pool

their resources and work together to solve their common problems.

Witnesses testified that such action is necessary for this relatively

small industry to remain profitable in the face of intense competition

from larger production areas.

Acreage and supplies of Walla Walla Sweet Onions have declined in

recent years, and proponents believe that the order would provide a

much needed means of halting a drop in grower returns experienced in

past seasons. This would be achieved by strengthening demand,

developing new markets for existing supplies and encouraging increased

production. Also, costs could be reduced through production research.

Thus, the order would be expected to have a positive impact on producer

returns.

The order would authorize the collection of assessments from

handlers of Walla Walla Sweet Onions grown in designated parts of Walla

Walla County, Washington, and Umatilla County, Oregon

markets for existing supplies and encouraging increased

production. Also, costs could be reduced through production research.

Thus, the order would be expected to have a positive impact on producer

returns.

The order would authorize the collection of assessments from

handlers of Walla Walla Sweet Onions grown in designated parts of Walla

Walla County, Washington, and Umatilla County, Oregon. Assessment funds

would be used to finance production research projects that could reduce

costs by reducing the occurrence of onion diseases, controlling plant

pests, and developing varieties with more desirable flavor, quality,

and size. Assessment funds could also be used to strengthen demand and

expand markets for Walla Walla Sweet Onions through marketing research

and development and product promotion programs, including paid

advertising. Projects to develop better methods of handling, shipping

or storing onions, to explore additional or alternative uses of onions,

to check nutritive values, and similar research are some examples of

marketing research. Examples of marketing development projects include

exploring marketing possibilities, contacting buyers, distributing

educational material relating to the handling and marketing of onions,

and the dissemination of the results of current or past marketing

research projects.

The order would be administered by a committee composed of Walla

Walla Sweet Onion producers, handlers, and a public member nominated by

growers and handlers and selected by the Secretary of Agriculture

(Secretary). Daily administration of the order would be carried out by

a staff hired by the committee. The order would not regulate the

production of Walla Walla Sweet Onions and would place no restriction

on the quality or quantities of Walla Walla Sweet Onions that could be

handled

handlers, and a public member nominated by

growers and handlers and selected by the Secretary of Agriculture

(Secretary). Daily administration of the order would be carried out by

a staff hired by the committee. The order would not regulate the

production of Walla Walla Sweet Onions and would place no restriction

on the quality or quantities of Walla Walla Sweet Onions that could be

handled.

The principal requirements of the order that would affect handlers

would be the requirements that they pay assessments on fresh market

shipments of Walla Walla Sweet Onions to fund research and promotion

programs and that container markings could be regulated. The amount of

the assessment rate is not specified in the proposed order, but

witnesses at the hearing indicated that an appropriate rate might be

five cents per 50-pound bag for administrative costs; research and

promotion costs could require an additional five to seven cents per bag

or more. Any assessment rate to cover committee expenses that may be

established would be recommended by the committee to the Secretary for

approval.

The order would also impose some reporting and recordkeeping

requirements on handlers. Handler testimony indicated that the expected

burden that would be imposed with respect to these requirements would

be negligible. Most of the information that would be reported to the

committee is already compiled by handlers for other uses and is readily

available. In compliance with Office of Management and Budget (OMB)

regulations (5 CFR part 1320) which implement the Paperwork Reduction

Act of 1980 (44 U.S.C. Chapter 35) and section 3504(h) of that Act, the

information collection and recordkeeping requirements that may be

imposed by this order have been submitted to OMB for approval. Those

requirements would not become effective prior to OMB approval

In compliance with Office of Management and Budget (OMB)

regulations (5 CFR part 1320) which implement the Paperwork Reduction

Act of 1980 (44 U.S.C. Chapter 35) and section 3504(h) of that Act, the

information collection and recordkeeping requirements that may be

imposed by this order have been submitted to OMB for approval. Those

requirements would not become effective prior to OMB approval. Any

requirements imposed would be evaluated against the potential benefits

to be derived and it is expected that any added burden resulting from

increased recordkeeping would not be significant when compared to those

anticipated benefits.

Reporting and recordkeeping requirements issued under comparable

marketing order programs impose an average annual burden on each

regulated handler of about one hour and a two year record retention

requirement. It is reasonable to expect that a comparable burden may be

imposed under this order on the estimated nine handlers of Walla Walla

Sweet Onions.

The Act requires that prior to the issuance of an order, a

referendum be conducted of affected producers to determine if they

favor issuance of the order. The ballot material that will be used in

conducting the referendum will be submitted to and approved by OMB

prior to use. It is estimated that it would take an average of 10

minutes for each of the approximately 50 Walla Walla Sweet Onion

growers to participate in the voluntary referendum balloting.

Additionally, it has been estimated that it would take approximately

ten minutes for each of the nine handlers to complete the marketing

agreement. In determining that the order would not have a significant

economic impact on a substantial number of small

entities, all of the issues discussed above were considered. The order

provisions have been carefully reviewed and every effort has been made

to eliminate any unnecessary costs or requirements

approximately

ten minutes for each of the nine handlers to complete the marketing

agreement. In determining that the order would not have a significant

economic impact on a substantial number of small

entities, all of the issues discussed above were considered. The order

provisions have been carefully reviewed and every effort has been made

to eliminate any unnecessary costs or requirements. Although the order

may impose some additional costs and requirements on handlers, it is

anticipated that the order would help to strengthen demand for Walla

Walla Sweet Onions. Therefore, any additional costs should be offset by

the benefits derived from expanded markets and sales benefitting

handlers and producers alike. Accordingly, it is determined that the

order would not have a significant economic impact on a substantial

number of small handlers or producers.

Findings and Conclusions

The material issues, findings and conclusions, rulings, and general

findings and determinations included in the Recommended Decision set

forth in the November 10, 1994, issue of the Federal Register (59 FR

56254) are hereby approved and adopted subject to the following

additions and modifications:

In his exception, Mr. Darrington stated his support for research

and promotion programs. However, he also stated that he believes the

proponent group's intent is to limit production of Walla Walla Sweet

Onions and competition among Walla Walla producers and handlers. The

Act, which is the legislative authority for the proposed order,

provides no authority to either limit the production of a commodity or

restrict competition within an industry. The proposed production area

has been recognized since the beginning of the twentieth century as

having unique soil properties, properties the adjacent areas do not

share, to the same degree

producers and handlers. The

Act, which is the legislative authority for the proposed order,

provides no authority to either limit the production of a commodity or

restrict competition within an industry. The proposed production area

has been recognized since the beginning of the twentieth century as

having unique soil properties, properties the adjacent areas do not

share, to the same degree. However, the production of Walla Walla Sweet

Onions uses less than half of the acreage in the Walla Walla Valley;

growers wishing to produce Walla Walla Sweet Onions could buy, lease,

or rent acreage within the area. Therefore, the size of the production

area would not adversely affect competition. The order, as proposed,

would authorize research and development projects, including paid

advertising. The order also would permit the committee, as

representatives of the industry, to establish, with Secretarial

approval, container labeling requirements. No other regulatory activity

would be authorized.

Mr. Darrington stated that any low grower returns in recent years

were due to poor quality onions, not poor market conditions. Poor

market conditions can be the result of poor quality product sold on the

market. However, poor market conditions can also be caused by excessive

supplies of local product in the market place and excessive supplies of

onions from other growing areas, or a combination of all of these

factors. Although this part of Mr. Darrington's exception could have

merit, it does not alter the findings of the Recommended Decision which

addressed poor market conditions for Walla Walla Sweet Onions because

poor market conditions often are a result of a poor quality commodity.

Mr. Darrington disagreed with the statement in the Recommended

Decision that half or more of the non-storage onions grown in

Washington came from the Walla Walla Valley and that half of all Walla

Walla Sweet Onion acreage is outside the Walla Walla Valley

ddressed poor market conditions for Walla Walla Sweet Onions because

poor market conditions often are a result of a poor quality commodity.

Mr. Darrington disagreed with the statement in the Recommended

Decision that half or more of the non-storage onions grown in

Washington came from the Walla Walla Valley and that half of all Walla

Walla Sweet Onion acreage is outside the Walla Walla Valley. The

exhibits and testimony presented at the hearing indicate that the Walla

Walla Valley produces at least half of Washington State's non-storage

onion crop. The evidence does not support Mr. Darrington's statement.

Mr. Darrington also stated that there are other areas in the nation

that have marketing orders for their specific onions, but none of them

are restricted to such a small area as proposed by this order. This is

true. However, section 11 (B) of the Act states that orders issued

under this section shall be limited in their application to the

smallest regional production areas or regional marketing areas, or

both, as the case may be, which the Secretary finds practicable,

consistently with carrying out such declared policy. The record

indicates that the parts of Walla Walla and Umatilla Counties which are

the proposed production area constitute the smallest practicable area.

Mr. Darrington stated that climate and variety are the major

factors determining the sweetness of an onion; and that there are years

when Walla Walla sweets are far from being sweet due to the growing

conditions. This is probably true of all onions, but has no relevance

on the findings of the recommended decision.

Mr. Darrington further states that the soil type in the proposed

production area is not unique to that area. However, testimony was

given to the contrary; witnesses stated that the unique growing

conditions in the proposed production area, particularly the low sulfur

content of the soil, yield a sweeter, milder onion than is grown

elsewhere

vance

on the findings of the recommended decision.

Mr. Darrington further states that the soil type in the proposed

production area is not unique to that area. However, testimony was

given to the contrary; witnesses stated that the unique growing

conditions in the proposed production area, particularly the low sulfur

content of the soil, yield a sweeter, milder onion than is grown

elsewhere. Therefore, in order for an onion to be labeled as a Walla

Walla Sweet, it would have to be produced in the proposed production

area.

Mr. Darrington states that the proposed order allows any onion

variety, other than a sweet Spanish hybrid, grown in the proposed

production area to be called a Walla Walla Sweet Onion and that there

are a number of varieties grown in the production area that are not

sweet. Mr. Darrington states that the order would permit growers within

the production area to grow whatever variety they wish and call it a

Walla Walla Sweet Onion. As the order is proposed, the committee may,

with the approval of the Secretary, exempt individual varieties from

any regulations issued under the order. This would allow the committee

to prevent onions that do not qualify as ``sweet onions'' from being

marketed as Walla Walla Sweet Onions. Thus, it is the intent that the

Walla Walla onion industry would have control over the varieties of

onions marketed as Walla Walla Sweet Onions.

Mr. Darrington states that the order proposes that onion seeds not

be regulated under the order, and that producers may sell seed onions

grown within the production area wherever they wish outside of the

area. Onions produced from any Walla Walla onion seed planted outside

of the Walla Walla Sweet Onion production area do not qualify as Walla

Walla Sweet Onions. For an onion to be assessed and marked as a Walla

Walla Sweet Onion, it must be grown within the Walla Walla Sweet Onion

production area established by the order and the variety must be

recognized by the U.S

they wish outside of the

area. Onions produced from any Walla Walla onion seed planted outside

of the Walla Walla Sweet Onion production area do not qualify as Walla

Walla Sweet Onions. For an onion to be assessed and marked as a Walla

Walla Sweet Onion, it must be grown within the Walla Walla Sweet Onion

production area established by the order and the variety must be

recognized by the U.S. Department of Agriculture or recommended by the

committee and approved by the Secretary as a sweet onion. Onions that

do not meet these criteria may not be marketed as Walla Walla Sweet

Onions and would not be assessed. Therefore, although Mr. Darrington's

statement with respect to onion seeds is correct, it is not relevant to

this discussion.

Mr. Darrington states that the proposed area appears to be very

self-serving to the group that is supporting this order. This is true,

inasmuch as marketing orders and agreements are self imposed

instruments that provide industry members with a means to provide

orderly marketing conditions. This proposed order would authorize

production and marketing research and marketing development and

promotion projects, including paid advertising, and would authorize

container markings. This order would also prohibit onions grown outside

of the proposed production area from being marketed as Walla Walla

Sweets, thus improving returns to producers within the production area

by strengthening consumer demand through various promotional activities

and by reducing production and marketing costs through

production and marketing research. Thus, for the reasons

stated, those parts of Mr. Darrington's exception that are relevant are

denied.

Rulings on Exceptions

from being marketed as Walla Walla

Sweets, thus improving returns to producers within the production area

by strengthening consumer demand through various promotional activities

and by reducing production and marketing costs through

production and marketing research. Thus, for the reasons

stated, those parts of Mr. Darrington's exception that are relevant are

denied.

Rulings on Exceptions

In arriving at the findings and conclusions and the regulatory

provisions of this decision, the exceptions to the Recommended Decision

were carefully considered in conjunction with the record evidence. To

the extent that the findings and conclusions and the regulatory

provisions of this decision are at variance with the exceptions, such

exceptions are denied.

Marketing Agreement and Order

Annexed hereto and made a part hereof is the document entitled

``Order Regulating the Handling of Sweet Onions Grown in the Walla

Walla Valley of Southeast Washington and Northeast Oregon.'' This

document has been decided upon as the detailed and appropriate means of

effectuating the foregoing findings and conclusions.

It is hereby ordered, That this entire decision be published in the

Federal Register.

Referendum Order

It is hereby directed that a referendum be conducted in accordance

with the procedure for the conduct of referenda (7 CFR 900.400 et.

seq.) to determine whether the issuance of the annexed order regulating

the handling of sweet onions grown in the Walla Walla Valley of

southeast Washington and northeast Oregon is approved or favored by

producers, as defined under the terms of the order, who, during the

representative period were engaged in the production of sweet onions in

the Walla Walla Valley of southeast Washington and northeast Oregon.

The representative period for the conduct of such referendum is

hereby determined to be January 1, 1994, through December 31, 1994.

The agents of the Secretary to conduct such referendum are hereby

designated to be Gary D. Olson and Robert J

during the

representative period were engaged in the production of sweet onions in

the Walla Walla Valley of southeast Washington and northeast Oregon.

The representative period for the conduct of such referendum is

hereby determined to be January 1, 1994, through December 31, 1994.

The agents of the Secretary to conduct such referendum are hereby

designated to be Gary D. Olson and Robert J. Curry, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220

S.W. Third Avenue, room 369, Portland Oregon, 97204; telephone 503-326-

2724, FAX 503-326-7440.

List of Subjects in 7 CFR Part 956

Marketing agreements, Onions, Reporting and recordkeeping

requirements.

Dated: March 30, 1995.

Patricia A. Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

Order Regulating the Handling of Sweet Onions Grown in the Walla

Walla Valley of Southeast Washington and Northeast Oregon.1

\1\This order shall not become effective unless and until the

requirements of Sec. 900.14 of the rules of practice and procedure

governing proceedings to formulate marketing agreements and

marketing orders have been met.

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Findings upon the basis of the hearing record. Pursuant to the

provisions of the Agricultural Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601 et seq.), and the applicable rules of practice

and procedure effective thereunder (7 CFR part 900), a public hearing

was held upon a proposed marketing agreement and order regulating the

handling of sweet onions grown in the Walla Walla Valley of Southeast

Washington and Northeast Oregon.

Upon the basis of the evidence introduced at such hearing and the

record thereof, it is found that:

(1) The marketing agreement and order, and all of the terms and

conditions thereof, will tend to effectuate the declared policy of the

Act;

oduction and marketing of

Walla Walla Sweet Onions produced in the production area which make

necessary different terms and provisions applicable to different parts

of such area; and

(5) All handling of Walla Walla Sweet Onions grown in the

production area is in the current of interstate or foreign commerce or

directly burdens, obstructs, or affects such commerce.

Order Relative to Handling

It is therefore ordered, that on and after the effective date

hereof, all handling of sweet onions grown in the Walla Walla Valley of

Southeast Washington and Northeast Oregon, shall be in conformity to,

and in compliance with, the terms and conditions of the said order, as

follows:

The provisions of the proposed marketing agreement and order

contained in the Recommended Decision issued by the Administrator on

November 3, 1994, and published in the Federal Register on November 10,

1994 (59 FR 56254), shall be and are the terms and provisions of this

order and are set forth in full herein. Sections 956.97 through 956.99

apply only to the proposed marketing agreement and not to the proposed

order.

1. Title 7, Chapter IX is proposed to be amended by adding part 956

to read as follows:

PART 956--SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST

WASHINGTON AND NORTHEAST OREGON

Subpart--Order Regulating Handling

Definitions

Sec.

956.1 Secretary.

956.2 Act.

956.3 Person.

956.4 Production area.

956.5 Walla Walla Sweet Onions.

956.6 Handler.

956.7 Registered handler.

956.8 Handle.

956.9 Container.

956.10 Producer.

956.11 Varieties.

956.12 Committee.

956.13 Fiscal period.

Administrative Committee

956.20 Establishment and membership.

956.21 Term of office.

956.22 Nominations.

956.23 Selection.

956.24 Qualifications and acceptance.

956.25 Alternates.

956.26 Vacancies.

956.27 Failure to nominate.

956.28 Procedure.

956.29 Expenses.

956.30 Powers.

956.31 Duties.

Expenses and Assessments

956.40 Expenses.

956.41 Budget.

956.42 Assessments.

956.43 Accounting.

956.44 Excess funds.

956.45 Contributions.

Establishment and membership.

956.21 Term of office.

956.22 Nominations.

956.23 Selection.

956.24 Qualifications and acceptance.

956.25 Alternates.

956.26 Vacancies.

956.27 Failure to nominate.

956.28 Procedure.

956.29 Expenses.

956.30 Powers.

956.31 Duties.

Expenses and Assessments

956.40 Expenses.

956.41 Budget.

956.42 Assessments.

956.43 Accounting.

956.44 Excess funds.

956.45 Contributions.

Research and Development

956.50 Research and development.

Regulation

956.61 Recommendation for regulations.

956.62 Container markings.

956.63 Handling for specified purposes.

956.64 Minimum quantities.

956.65 Notification of regulations.

956.66 Safeguards.

Reports

956.80 Reports and recordkeeping.

Miscellaneous Provisions

956.85 Termination or suspension.

956.87 Proceedings after termination.

956.88 Effect of termination or amendment.

956.89 Compliance.

956.90 Right of the Secretary.

956.91 Duration of immunities.

956.92 Agents.

956.93 Derogation.

956.94 Personal liability.

956.95 Separability.

956.96 Amendments.

956.97 Counterparts.

956.98 Additional parties.

956.99 Order with marketing agreement.

Authority: 7 U.S.C. 601-674.11

Definitions

Sec. 956.1 Secretary.

Secretary means the Secretary of Agriculture of the United States

or any officer or employee of the Department of Agriculture who has

been delegated, or to whom authority may hereafter be delegated, the

authority to act for the Secretary.

Sec. 956.2 Act.

Act means Public Act No. 10, 73d Congress (May 12, 1933), as

amended and as reenacted and amended by the Agricultural Marketing

Agreement Act of 1937, as amended (Sec. 1-19, 48 Stat. 31, as amended;

7 U.S.C. 601 et seq.).

Sec. 956.3 Person.

Person means an individual, partnership, corporation, association,

or any other business unit.

Sec. 956.4 Production area.

ecretary.

Sec. 956.2 Act.

Act means Public Act No. 10, 73d Congress (May 12, 1933), as

amended and as reenacted and amended by the Agricultural Marketing

Agreement Act of 1937, as amended (Sec. 1-19, 48 Stat. 31, as amended;

7 U.S.C. 601 et seq.).

Sec. 956.3 Person.

Person means an individual, partnership, corporation, association,

or any other business unit.

Sec. 956.4 Production area.

Production area means a tract of land in Umatilla County, Oregon,

and Walla Walla County, Washington, based on surveyors' maps, enclosed

by the following boundaries: Commencing at the Southeast corner of

Section 13, Township (Twp.) 5 North, Range (Rge.) 36 East, W.M.; thence

Westerly along the South line of Sections 13, 14, 15, 16, 17, and 18 in

Twp. 5 North, Rge. 36 East, Sections 13, 14, 15, 16, 17, and 18 in Twp.

5 North, Rge. 35 East, Sections 13, 14, 15, 16, 17, and 18 in Twp. 5

North, Rge. 34 East, Sections 13, 14, and 15 in Twp. 5 North, Rge. 33

East, W.M. to the East right of way line of the Northern Pacific

Railway, as it runs Northwesterly through Vansyckle Canyon; thence

Northwesterly along said Easterly right of way line to a point in the

Northwest 1/4 of Section 20, Twp. 7 North, Rge. 32 East, W.M. where

said line intersects the South right of way of the Union Pacific

Railway, said intersection being commonly known as Zangar Junction;

thence Easterly along said South right of way line of the Union Pacific

Railway to a point in the Southwest 1/4 of Section 23, Twp. 7 North,

Rge. 32 East where said line intersects the South right of way line of

Washington State Highway No. 12; thence Easterly along said South right

of way line to the intersection with the West line of Section 34, Twp.

7 North, Rge. 33 East, W.M.; thence North, along the West line of

Sections 34, 27, 22, 15, 10, and 3 in Twp. 7 North, Rge. 33 East, W.M.,

and the West line of Sections 34, 27, and 22 in Twp. 8 North, Rge. 33

East, W.M

ts the South right of way line of

Washington State Highway No. 12; thence Easterly along said South right

of way line to the intersection with the West line of Section 34, Twp.

7 North, Rge. 33 East, W.M.; thence North, along the West line of

Sections 34, 27, 22, 15, 10, and 3 in Twp. 7 North, Rge. 33 East, W.M.,

and the West line of Sections 34, 27, and 22 in Twp. 8 North, Rge. 33

East, W.M. to the Northwest corner of said Section 22; thence East

along the North line of said Section 22 to the Northeast corner

thereof; thence North along the West line of Sections 14, 11, and 2 in

Twp. 8 North, Rge. 33 East, W.M. to the Northwest corner of said

Section 2; thence East along North lines of Sections 2 and 1 in Twp. 8

North, Rge. 33 East, W.M. and the North line of Section 6, Twp. 8

North, Rge. 34 East, W.M. to the centerline of the Touchet River;

thence Northerly and Easterly along said centerline of the Touchet

River as it runs through Twp. 9 North, Rge. 34 East, Twp. 9 North, Rge.

35 East, Twp. 10 North, Rge. 35 East, Twp. 10 North, Rge. 36 East, Twp.

9 North, Rge. 36 East, and Twp. 9 North, Rge. 37 East to a point on the

East line of Section 11 in Twp. 9 North, Rge. 37 East, W.M., thence

South along the East line of Sections 11, 14, 23, 26, and 35 in Twp. 9

North, Rge. 37 East, W.M., the East lines of Sections 2, 11, 14, 23,

26, and 35 in Twp. 8 North, Rge. 37 East, W.M., the East lines of

Sections 2, 11, 14, 23, 26, and 35 in Twp. 7 North, Rge. 37 East, W.M.,

and the East lines of Sections 2, 11, and fractional Section 14 in Twp.

6 North, Rge. 37 East, W.M., to a point on the Washington-Oregon State

line; thence West along said State Line to the closing corner on the

West side of Section 18 in Twp. 6 North, Rge. 37 East, W.M.; thence

South along the West line of Sections 18, 19, 30, and 31 in Twp. 6

North, Rge. 37 East, W.M. and the West line of Sections 6, 7, and 18 in

Twp. 5 North, Rge. 37 East to the corner common to Sections 18 and 19

in Twp. 5 North, Rge. 37 East, W.M

-Oregon State

line; thence West along said State Line to the closing corner on the

West side of Section 18 in Twp. 6 North, Rge. 37 East, W.M.; thence

South along the West line of Sections 18, 19, 30, and 31 in Twp. 6

North, Rge. 37 East, W.M. and the West line of Sections 6, 7, and 18 in

Twp. 5 North, Rge. 37 East to the corner common to Sections 18 and 19

in Twp. 5 North, Rge. 37 East, W.M. and 13 and 24 in Twp. 5 North, Rge.

36 East, W.M., Being the True Point of Beginning of this Legal

Description.

Sec. 956.5 Walla Walla Sweet Onions.

Walla Walla Sweet Onions means all varieties of Allium cepa grown

within the production area, except Spanish hybrid varieties. The

committee may, with the approval of the Secretary, exempt individual

varieties from any or all regulations issued under this part.

Sec. 956.6 Handler.

Handler is synonymous with shipper and means any person (except a

common or contract carrier of Walla Walla Sweet Onions owned by another

person) who handles Walla Walla Sweet Onions or causes Walla Walla

Sweet Onions to be handled.

Sec. 956.7 Registered handler.

Registered handler means any person with adequate facilities for

preparing Walla Walla Sweet Onions for commercial market, who has

requested such registration and is so recorded by the committee, or any

person who has access to such facilities and has recorded with the

committee the ability and willingness to assume customary obligations

of preparing Walla Walla Sweet Onions for commercial market. The

committee may recommend, for approval of the Secretary, procedures with

respect to handler registration.

Sec. 956.8 Handle.

uested such registration and is so recorded by the committee, or any

person who has access to such facilities and has recorded with the

committee the ability and willingness to assume customary obligations

of preparing Walla Walla Sweet Onions for commercial market. The

committee may recommend, for approval of the Secretary, procedures with

respect to handler registration.

Sec. 956.8 Handle.

Handle is synonymous with ship and means to package, load, sell,

transport, or in any way place Walla Walla Sweet Onions or cause Walla

Walla Sweet Onions to be placed in the current of commerce within the

production area or between the production area and any point outside

thereof. Such term shall not include the transportation, sale, or

delivery of harvested Walla Walla Sweet Onions to a handler within the

production area for the purpose of having such Walla Walla Sweet Onions

prepared for market.

Sec. 956.9 Container.

Container means a box, bag, crate, hamper, basket, package, or any

other receptacle used in the packaging, transporting, sale, shipment,

or other handling of Walla Walla Sweet Onions.

Sec. 956.10 Producer.

Producer is synonymous with grower and means any person engaged in

a proprietary capacity in the production of Walla Walla Sweet Onions

for market.

Sec. 956.11 Varieties.

Varieties means and includes all classifications, subdivisions, or

types of Walla Walla Sweet Onions according to those definitive

characteristics now or hereafter recognized by the United States

Department of Agriculture or recommended by the committee and approved

by the Secretary.

Sec. 956.12 Committee.

Committee means the Walla Walla Sweet Onion Committee established

pursuant to Sec. 956.20.

Sec. 956.13 Fiscal period.

Fiscal period means the period beginning on June 1 and ending on

May 31 of each year, or other such period as may be recommended by the

committee and approved by the Secretary.

Administrative Committee

Sec. 956.20 Establishment and membership.

ry.

Sec. 956.12 Committee.

Committee means the Walla Walla Sweet Onion Committee established

pursuant to Sec. 956.20.

Sec. 956.13 Fiscal period.

Fiscal period means the period beginning on June 1 and ending on

May 31 of each year, or other such period as may be recommended by the

committee and approved by the Secretary.

Administrative Committee

Sec. 956.20 Establishment and membership.

(a) The Walla Walla Sweet Onion Committee, consisting of ten

members, is hereby established. The committee shall consist of six

producer members, three handler members, and one public member. Each

member shall have an alternate who shall have the same qualifications

as the member.

(b) A producer shall have three years of experience in producing

onions in order to qualify for committee membership. At the time of

selection, no more than two producer members may be affiliated with the

same handler.

Sec. 956.21 Term of office.

(a) Except as otherwise provided in paragraph (b) of this section,

the term of office of committee members and their respective alternates

shall be for three fiscal periods beginning on June 1 or such other

date as recommended by the committee and approved by the Secretary. The

terms shall be determined so that one-third of the grower membership

and one-third of the handler membership shall terminate each year.

Members and alternates shall serve during the term of office for which

they are selected and have been qualified, or during that portion

thereof beginning on the date on which they qualify during such term of

office and continuing until the end thereof, or until their successors

are selected and have qualified.

wer membership

and one-third of the handler membership shall terminate each year.

Members and alternates shall serve during the term of office for which

they are selected and have been qualified, or during that portion

thereof beginning on the date on which they qualify during such term of

office and continuing until the end thereof, or until their successors

are selected and have qualified.

(b) The term of office of the initial members and alternates shall

begin as soon as possible after the effective date of this subpart.

One-third of the initial industry members and alternates shall serve

for a one-year term, one-third shall serve for a two-year term, and

one-third shall serve for a three-year term. The initial, as well as

all successive terms of office of the public member and alternate

member shall be for three years.

(c) The consecutive terms of office for all members shall be

limited to two three-year terms. There shall be no such limitation for

alternate members.

Sec. 956.22 Nominations.

Nominations from which the Secretary may select the members of the

committee and their respective alternates may be made in the following

manner:

(a) The committee shall hold or cause to be held, within the

production area and prior to April 1 of each year or by such other date

as may be specified by the Secretary, one or more meetings of producers

and handlers for the purpose of designating one nominee for each of the

member and alternate member positions which are vacant or will be

vacant at the end of the fiscal period;

(b) In arranging for such meetings the committee may, if it deems

such desirable, cooperate with existing organizations and agencies;

(c) Nominations for committee members and alternate members shall

be provided to the Secretary, in such manner and form as the Secretary

may prescribe, not later than 30 days prior to the end of the fiscal

period within which the current term of office expires;

(b) In arranging for such meetings the committee may, if it deems

such desirable, cooperate with existing organizations and agencies;

(c) Nominations for committee members and alternate members shall

be provided to the Secretary, in such manner and form as the Secretary

may prescribe, not later than 30 days prior to the end of the fiscal

period within which the current term of office expires;

(d) Only producers may participate in designating nominees for

producer committee members and their alternates and only handlers may

participate in designating nominees for handler committee members and

their alternates;

(e) Each person who is both a handler and a producer may vote

either as a handler or as a producer, but not both;

(f) Each person is entitled to cast only one vote on behalf of him

or herself, his or her partners, agents, subsidiaries, affiliates and

representatives, in designating nominees for committee members and

alternates. An eligible producer's or handler's privilege of casting

only one vote, as aforesaid, shall be construed to permit such voter to

cast one vote for each producer member and alternate member position to

be filled or each handler member and alternate member position to be

filled, but not both.

(g) Every three years, at the first meeting following selection,

the committee shall nominate the public member and alternate for a

three-year term of office.

(h) The committee shall prescribe such additional qualifications,

administrative rules and procedures for selection and voting for each

candidate as it deems necessary and as the Secretary approves.

Sec. 956.23 Selection.

The Secretary shall select members and alternate members of the

committee from the nominations made pursuant to Sec. 956.22 or from

other qualified persons.

Sec. 956.24 Qualification and acceptance.

cribe such additional qualifications,

administrative rules and procedures for selection and voting for each

candidate as it deems necessary and as the Secretary approves.

Sec. 956.23 Selection.

The Secretary shall select members and alternate members of the

committee from the nominations made pursuant to Sec. 956.22 or from

other qualified persons.

Sec. 956.24 Qualification and acceptance.

Any person nominated to serve as a member or alternate member of

the committee shall, prior to selection by the Secretary, qualify by

filing a written background and acceptance statement indicating such

person's willingness to serve in the position for which nominated.

Sec. 956.25 Alternates.

An alternate member of the committee shall act in the place and

stead of the member for whom such person is an alternate, during such

member's absence. In the event of the death, removal, resignation, or

disqualification of a member, that member's alternate shall serve until

a successor to such member has qualified and is selected.

Sec. 956.26 Vacancies.

To fill any vacancy occasioned by the failure of any person

nominated as a member or as an alternate to qualify, or in the event of

the death, removal, resignation, or disqualification of a member or

alternate, a successor for the unexpired term may be selected by the

Secretary from nominations made pursuant to Sec. 956.22 from previously

unselected nominees on the current nominee list, or from other eligible

persons.

Sec. 956.27 Failure to nominate.

If nominations are not made within the time and manner prescribed

in Sec. 956.22 the Secretary may, without regard to nominations, select

the members and alternates on the basis of the representation provided

for in Sec. 956.20

Sec. 956.28 Procedure.

(a) Six members of the committee shall constitute a quorum, and six

concurring votes shall be required to pass any motion or approve any

committee action, except that recommendations made pursuant to

Sec. 956.61 shall require seven concurring votes.

regard to nominations, select

the members and alternates on the basis of the representation provided

for in Sec. 956.20

Sec. 956.28 Procedure.

(a) Six members of the committee shall constitute a quorum, and six

concurring votes shall be required to pass any motion or approve any

committee action, except that recommendations made pursuant to

Sec. 956.61 shall require seven concurring votes.

(b) The committee may provide for meetings by telephone, telegraph,

facsimile, or other means of communication, and any vote cast orally at

such meetings shall be confirmed promptly in writing: Provided, That if

an assembled meeting is held, all votes shall be cast in person.

Sec. 956.29 Expenses.

Members and alternates shall serve without compensation but shall

be reimbursed for such expenses authorized by the committee and

necessarily incurred by them in attending committee meetings and in the

performance of their duties under this part.

Sec. 956.30 Powers.

The committee shall have the following powers:

(a) To administer the provisions of this part in accordance with

its terms;

(b) To make rules and regulations to effectuate the terms and

provisions of this part;

(c) To receive, investigate, and report to the Secretary complaints

of violations of the provisions of this part; and

(d) To recommend to the Secretary amendments to this part.

Sec. 956.31 Duties.

It shall be among the duties of the committee:

(a) At the beginning of each fiscal period, or as soon thereafter

as practicable, to meet and organize, to select a chairperson and such

other officers as may be necessary, to select subcommittees, and to

adopt such rules and regulations for the conduct of its business as it

may deem advisable;

(b) To act as intermediary between the Secretary and any producer

or handler;

(c) To furnish to the Secretary such available information as the

Secretary may request;

practicable, to meet and organize, to select a chairperson and such

other officers as may be necessary, to select subcommittees, and to

adopt such rules and regulations for the conduct of its business as it

may deem advisable;

(b) To act as intermediary between the Secretary and any producer

or handler;

(c) To furnish to the Secretary such available information as the

Secretary may request;

(d) To appoint such employees, agents, and representatives as it

may deem necessary and to determine the salaries and define the duties

of each such person;

(e) To investigate from time to time and to assemble data on the

growing, harvesting, shipping, and marketing conditions with respect to

Walla Walla Sweet Onions and to engage in such research and service

activities which relate to the production, handling, or marketing of

Walla Walla Sweet Onions as may be approved by the Secretary;

(f) To keep minutes, books, and records which clearly reflect all

of the acts and transactions of the committee. Such minutes, books, and

records shall be subject to examination at any time by the Secretary or

the Secretary's authorized agent or representative;

(g) To make available to producers and handlers the committee

voting record on recommended regulations and on other matters of

policy;

(h) Prior to each fiscal period, to submit to the Secretary a

budget of its proposed expenses for such fiscal period, together with a

report thereon, and a recommendation as to the rate of assessment for

such period;

ary's authorized agent or representative;

(g) To make available to producers and handlers the committee

voting record on recommended regulations and on other matters of

policy;

(h) Prior to each fiscal period, to submit to the Secretary a

budget of its proposed expenses for such fiscal period, together with a

report thereon, and a recommendation as to the rate of assessment for

such period;

(i) To cause its books to be audited by a competent accountant at

least once each fiscal period, and at such other time as the committee

may deem necessary or as the Secretary may require; the report of such

audit shall show the receipt and expenditure of funds collected

pursuant to this part; a copy of each such report shall be furnished to

the Secretary, and a copy of each such report shall be made available

at the principal office of the committee for inspection by producers

and handlers: Provided, that confidential information shall be removed

from all copies made available to the public; and

(j) To consult, cooperate, and exchange information with other

onion marketing committees and other individuals or agencies in

connection with all proper committee activities and objectives under

this subpart.

Expenses and Assessments

Sec. 956.40 Expenses.

The committee is authorized to incur such expenses as the Secretary

may find are reasonable and likely to be incurred by the committee for

its maintenance and functioning, and to enable it to exercise its

powers and perform its duties in accordance with the provisions of this

part. The funds to cover such expenses shall be acquired in the manner

prescribed in Secs. 956.42 and 956.45.

Sec. 956.41 Budget.

e is authorized to incur such expenses as the Secretary

may find are reasonable and likely to be incurred by the committee for

its maintenance and functioning, and to enable it to exercise its

powers and perform its duties in accordance with the provisions of this

part. The funds to cover such expenses shall be acquired in the manner

prescribed in Secs. 956.42 and 956.45.

Sec. 956.41 Budget.

Prior to each fiscal period and as may be necessary thereafter, the

committee shall prepare an estimated budget of income and expenditures

necessary for the administration of this part. The committee shall

recommend a rate of assessment calculated to provide adequate funds to

defray its proposed expenditures. The committee shall present such

budget to the Secretary with an accompanying report showing the basis

for its calculations.

Sec. 956.42 Assessments.

(a) The funds to cover the committee's expenses shall be acquired

by the levying of assessments upon handlers as provided in this

subpart. Each person who first handles Walla Walla Sweet Onions shall

pay assessments to the committee upon demand, which assessments shall

be in payment of such handler's pro rata share of the committee's

expenses.

(b) Assessments shall be levied upon handlers, at rates established

by the Secretary. Such rates may be established upon the basis of the

committee's recommendations or other available information.

(c) At any time during, or subsequent to, a given fiscal period,

the committee may recommend the approval of an amended budget and an

increase in the rate of assessment. Upon the basis of such

recommendations, or other available information, the Secretary may

approve an amended budget and increase the assessment rate. Such

increase in the assessment rate shall be applicable to all Walla Walla

Sweet Onions which were handled by each handler thereof during such

fiscal period.

ecommend the approval of an amended budget and an

increase in the rate of assessment. Upon the basis of such

recommendations, or other available information, the Secretary may

approve an amended budget and increase the assessment rate. Such

increase in the assessment rate shall be applicable to all Walla Walla

Sweet Onions which were handled by each handler thereof during such

fiscal period.

(d) The payment of assessments for the maintenance and functioning

of the committee may be required under this part throughout the period

it is in effect, irrespective of whether particular provisions of this

part are suspended or become inoperative.

(e) To provide funds for the administration of the provisions of

this part during the initial fiscal period or the first part of a

fiscal period when neither sufficient operating reserve funds nor

sufficient revenue from assessments on the current season's shipments

are available, the committee may accept payment of assessments in

advance or may borrow money for such purposes.

(f) The committee may impose a late payment charge or an interest

charge, or both, on any handler who fails to pay any assessment in a

timely manner. Such time and the rates shall be recommended by the

committee and approved by the Secretary.

Sec. 956.43 Accounting.

(a) All funds received by the committee pursuant to the provisions

of this part shall be used solely for the purposes specified in this

part.

e may impose a late payment charge or an interest

charge, or both, on any handler who fails to pay any assessment in a

timely manner. Such time and the rates shall be recommended by the

committee and approved by the Secretary.

Sec. 956.43 Accounting.

(a) All funds received by the committee pursuant to the provisions

of this part shall be used solely for the purposes specified in this

part.

(b) The Secretary may at any time require the committee, its

members and alternate members, employees, agents, and all other such

persons associated with the committee to account for all receipts,

disbursements, funds, property, or records for which they are

responsible. Whenever any person ceases to be a member, alternate

member, employee, or agent of the committee, such person shall account

for all receipts, disbursements, funds, property, and records

pertaining to the committee's activities for which such person was

responsible, deliver all property and funds in such person's possession

to the committee, and execute such assignments and other instruments as

may be necessary or appropriate to vest in the committee full title to

all of the property, funds, and claims vested in such person pursuant

to this part.

(c) The committee may make recommendations to the Secretary for one

or more of the members thereof, or any other person, to act as a

trustee for holding records, funds, or any other committee property

during periods of suspension of this part, or during any period or

periods when regulations are not in effect and, upon determining such

action is appropriate, the Secretary may direct that such person or

persons shall act as trustee or trustees for the

committee.

Sec. 956.44 Excess funds.

If, at the end of a fiscal period, the assessments collected are in

excess of expenses incurred, such excess shall be accounted for as

follows:

or during any period or

periods when regulations are not in effect and, upon determining such

action is appropriate, the Secretary may direct that such person or

persons shall act as trustee or trustees for the

committee.

Sec. 956.44 Excess funds.

If, at the end of a fiscal period, the assessments collected are in

excess of expenses incurred, such excess shall be accounted for as

follows:

(a) The committee, with approval of the Secretary, may establish an

operating reserve and may carry over to subsequent fiscal periods

excess funds in a reserve so established, except funds in the reserve

shall not exceed the equivalent of approximately two fiscal period's

budgeted expenses. Such reserve funds may be used:

(1) To defray any expenses authorized under this part;

(2) To defray expenses during any fiscal period prior to the time

assessment income is sufficient to cover such expenses;

(3) To cover deficits incurred during any fiscal period when

assessment income is less than expenses;

(4) To defray expenses incurred during any period when any or all

provisions of this part are suspended or are inoperative; and

(5) To cover necessary expenses of liquidation in the event of

termination of this part.

(b) Upon termination of this part, any funds not required to defray

the necessary expenses of liquidation shall be disposed of in such

manner as the Secretary may determine to be appropriate except that to

the extent practicable, such funds shall be returned pro rata to the

persons from whom such funds were collected.

ecessary expenses of liquidation in the event of

termination of this part.

(b) Upon termination of this part, any funds not required to defray

the necessary expenses of liquidation shall be disposed of in such

manner as the Secretary may determine to be appropriate except that to

the extent practicable, such funds shall be returned pro rata to the

persons from whom such funds were collected.

(c) If such excess is not retained in a reserve as provided in

paragraph (a) of this section, each handler entitled to a proportionate

refund of the excess assessments collected shall be credited at the end

of a fiscal period with such refund against the operations of the

following fiscal period unless such handler demands payment thereof, in

which event such proportionate refund shall be paid as soon as

practicable.

Sec. 956.45 Contributions.

The committee may accept voluntary contributions but these shall be

used only to pay expenses incurred pursuant to Sec. 956.50. Such

contributions shall be free from any encumbrances by the donor, and the

committee shall retain complete control of their use.

Research and Development

Sec. 956.50 Research and development.

(a) The committee, with the approval of the Secretary, may

establish or provide for the establishment of production research,

marketing research and development, and marketing promotion projects,

including paid advertising, designed to assist, improve, or promote the

marketing, distribution, consumption, or efficient production of Walla

Walla Sweet Onions. Any such project for the promotion and advertising

of Walla Walla Sweet Onions may utilize an identifying mark, including

but not limited to registered trademarks and logos, which shall be made

available for use by all handlers in accordance with such terms and

conditions as the committee, with the approval of the Secretary, may

prescribe. The committee may register such logos with the Commissioner

of Patents and Trademarks, U.S. Patent and Trademark Office

Sweet Onions may utilize an identifying mark, including

but not limited to registered trademarks and logos, which shall be made

available for use by all handlers in accordance with such terms and

conditions as the committee, with the approval of the Secretary, may

prescribe. The committee may register such logos with the Commissioner

of Patents and Trademarks, U.S. Patent and Trademark Office. The

expense of such projects shall be paid from funds collected pursuant to

Secs. 956.42 and 956.45.

(b) In recommending projects pursuant to this section, the

committee shall give consideration to the following:

(1) The expected supply of Walla Walla Sweet Onions in relation to

market requirements;

(2) The supply situation among competing onion areas and

communities;

(3) The anticipated benefits from such projects in relation to

their costs;

(4) The need for marketing research with respect to any market

development activity; and

(5) Other relevant factors.

(c) If the committee concludes that a program of research and

development should be undertaken, or continued, in any fiscal period,

it shall submit the following for the approval of the Secretary:

(1) Its recommendations as to the funds to be obtained pursuant to

Secs. 956.42 and 956.45;

(2) Its recommendations as to any research projects; and

(3) Its recommendations as to promotion activity and paid

advertising.

(d) Upon conclusion of each activity, but at least annually, the

committee shall summarize and report the results of such activity to

the Secretary.

roval of the Secretary:

(1) Its recommendations as to the funds to be obtained pursuant to

Secs. 956.42 and 956.45;

(2) Its recommendations as to any research projects; and

(3) Its recommendations as to promotion activity and paid

advertising.

(d) Upon conclusion of each activity, but at least annually, the

committee shall summarize and report the results of such activity to

the Secretary.

(e) All marketing promotion activity engaged in by the committee,

including paid advertising, shall be subject to the following terms and

conditions:

(1) No marketing promotion, including paid advertising, shall refer

to any private brand, private trademark, or private trade name;

(2) No promotion or advertising shall disparage the quality, use,

value, or sale of like or any other agricultural commodity or product,

and no false or unwarranted claims shall be made in connection with the

product; and

(3) No promotion or advertising shall be undertaken without reason

to believe that returns to producers will be improved by such activity.

Regulation

Sec. 956.61 Recommendation for regulations.

The committee shall recommend regulations to the Secretary whenever

it deems it advisable, as provided in Sec. 956.62. The committee also

may recommend modification, suspension, or termination of any

regulation, or amendments thereto, in order to facilitate the handling

of Walla Walla Sweet Onions for the purposes authorized in Sec. 956.63.

The committee may also recommend amendment, modification, termination,

or suspension of any regulation issued under this part.

Sec. 956.62 Container markings.

ec. 956.62. The committee also

may recommend modification, suspension, or termination of any

regulation, or amendments thereto, in order to facilitate the handling

of Walla Walla Sweet Onions for the purposes authorized in Sec. 956.63.

The committee may also recommend amendment, modification, termination,

or suspension of any regulation issued under this part.

Sec. 956.62 Container markings.

The committee may, with the approval of the Secretary, provide a

method, through rules and regulations issued pursuant to this part, for

fixing the marking of containers which may be used in the packaging or

handling of Walla Walla Sweet Onions, including appropriate logo or

other container markings to identify the contents thereof. Further, the

committee may, with the approval of the Secretary, establish through

rules and regulations such safeguards as may be necessary to ensure

that such container marking requirements are in compliance with the

rules and regulations.

Sec. 956.63 Handling for specified purposes.

Upon the basis of recommendations and information submitted by the

committee, or other available information, the Secretary may issue

special regulations, or modify, suspend, or terminate requirements in

effect pursuant to Secs. 956.42 and 956.62 or any combination thereof,

in order to facilitate the handling of onions for the following

purposes:

(a) Shipments of Walla Walla Sweet Onions for relief or to

charitable institutions;

(b) Shipments of Walla Walla Sweet Onions for livestock feed;

(c) Shipments of Walla Walla Sweet Onions for planting and for

plants;

(d) Shipments of Walla Walla Sweet Onions as salad onions;

(e) Shipments of Walla Walla Sweet Onions for all processing uses

including, pickling, peeling, dehydration, juicing, or other

processing;

(f) Shipments of Walla Walla Sweet Onions for disposal;

(g) Shipments of Walla Walla Sweet Onions for seed;

ivestock feed;

(c) Shipments of Walla Walla Sweet Onions for planting and for

plants;

(d) Shipments of Walla Walla Sweet Onions as salad onions;

(e) Shipments of Walla Walla Sweet Onions for all processing uses

including, pickling, peeling, dehydration, juicing, or other

processing;

(f) Shipments of Walla Walla Sweet Onions for disposal;

(g) Shipments of Walla Walla Sweet Onions for seed;

(h) Shipments of Walla Walla Sweet Onions for packing or storing

within the production area or outside the production area, but within

specified locations in the States of Oregon and Washington; and

(i) Shipments of Walla Walla Sweet Onions for other purposes which

may be specified.

Sec. 956.64 Minimum quantities.

The committee, with the approval of the Secretary, may establish

minimum quantities below which Walla Walla Sweet Onion shipments will

be free from the requirements in, or pursuant to, Secs. 956.42, 956.62,

and 956.63, or any combination thereof.

Sec. 956.65 Notification of regulations.

The Secretary shall notify the committee of each regulation issued

and of each amendment, modification, suspension, or termination

thereof. The committee shall give reasonable notice thereof to

handlers.

Sec. 956.66 Safeguards.

(a) The committee, with the approval of the Secretary, may

prescribe adequate safeguards to prevent Walla Walla Sweet Onions

shipped, pursuant to Secs. 956.63 and 956.64, from entering channels of

trade for other than the purpose authorized therefor.

nt, modification, suspension, or termination

thereof. The committee shall give reasonable notice thereof to

handlers.

Sec. 956.66 Safeguards.

(a) The committee, with the approval of the Secretary, may

prescribe adequate safeguards to prevent Walla Walla Sweet Onions

shipped, pursuant to Secs. 956.63 and 956.64, from entering channels of

trade for other than the purpose authorized therefor.

(b) The committee, with the approval of the Secretary, may also

prescribe rules and regulations governing the issuance, and the

contents, of Certificates of Privilege, if such certificates are

prescribed as safeguards by the committee. Such safeguards may include

requirements that:

(1) Handlers shall first file applications with the committee to

ship such Walla Walla Sweet Onions.

(2) Handlers shall pay the pro rata share of expenses provided by

Sec. 956.42 in connection with such Walla Walla Sweet Onions.

(3) Handlers shall obtain Certificates of Privilege from the

committee prior to effecting the particular onion shipment.

(c) The committee may rescind any Certificate of Privilege, or

refuse to issue any Certificate of Privilege, to any handler if proof

is obtained that Walla Walla Sweet Onions shipped by the handler for

the purposes stated in the Certificate of Privilege were handled

contrary to the provisions of this part.

(d) The Secretary shall have the right to modify, change, alter, or

rescind any safeguards prescribed and any certificates issued by the

committee pursuant to the provisions of this section.

ege, to any handler if proof

is obtained that Walla Walla Sweet Onions shipped by the handler for

the purposes stated in the Certificate of Privilege were handled

contrary to the provisions of this part.

(d) The Secretary shall have the right to modify, change, alter, or

rescind any safeguards prescribed and any certificates issued by the

committee pursuant to the provisions of this section.

(e) The committee shall make reports to the Secretary as requested,

showing the number of applications for such certificates, the quantity

of Walla Walla Sweet Onions covered by such applications, the number of

such applications denied and certificates granted, the quantity of

Walla Walla Sweet Onions handled under duly issued certificates, and

such other information as may be requested.

Reports

Sec. 956.80 Reports and recordkeeping.

Upon request of the committee, made with the approval of the

Secretary, each handler shall furnish to the committee, in such manner

and at such time as it may prescribe, such reports and other

information as may be necessary for the committee to perform its duties

under this part.

(a) Such reports may include, but are not necessarily limited to,

the following:

(1) The acreage of Walla Walla Sweet Onions grown;

(2) The quantities of Walla Walla Sweet Onions received by such

handler;

(3) The quantities of Walla Walla Sweet Onions disposed of by such

handler;

(4) The disposition date of such Walla Walla Sweet Onions;

(5) The manner of disposition of such Walla Walla Sweet Onions; and

(6) The identification of the carrier transporting such Walla Walla

Sweet Onions.

of Walla Walla Sweet Onions grown;

(2) The quantities of Walla Walla Sweet Onions received by such

handler;

(3) The quantities of Walla Walla Sweet Onions disposed of by such

handler;

(4) The disposition date of such Walla Walla Sweet Onions;

(5) The manner of disposition of such Walla Walla Sweet Onions; and

(6) The identification of the carrier transporting such Walla Walla

Sweet Onions.

(b) All such reports shall be held under appropriate protective

classification and custody by the committee, or duly appointed

employees thereof, so that any information contained therein which may

adversely affect the competitive position of any handler in relation to

other handlers will not be disclosed. Compilations of general reports

from data submitted by handlers is authorized, subject to the

prohibition of disclosure of individual handler's identity or

operations.

(c) Each handler shall maintain for at least two succeeding years

such records of the Walla Walla Sweet Onions received and disposed of

by such handler as may be necessary to verify reports submitted to the

committee pursuant to this section.

Miscellaneous Provisions

Sec. 956.85 Termination or suspension.

(a) The Secretary may at any time terminate the provisions of this

subpart by giving at least one day's notice by means of a press release

or in any other manner which the Secretary may determine.

(b) The Secretary shall terminate or suspend the operations of any

or all of the provisions of this subpart whenever it is found that such

provisions do not tend to effectuate the declared policy of the act.

ecretary may at any time terminate the provisions of this

subpart by giving at least one day's notice by means of a press release

or in any other manner which the Secretary may determine.

(b) The Secretary shall terminate or suspend the operations of any

or all of the provisions of this subpart whenever it is found that such

provisions do not tend to effectuate the declared policy of the act.

(c) The Secretary shall terminate the provisions of this subpart at

the end of any fiscal period whenever it is found that such termination

is favored by a majority of producers who, during a representative

period, have been engaged in the production of Walla Walla Sweet

Onions: Provided, That such majority has, during such representative

period, produced for market more than fifty percent of the volume of

such Walla Walla Sweet Onions produced for market, but such termination

shall be announced at least 90 days before the end of the current

fiscal period.

(d) Within six years of the effective date of this subpart the

Secretary shall conduct a continuance referendum to ascertain whether

continuance of this subpart is favored by producers. Subsequent

referenda to ascertain continuance shall be conducted every six years

thereafter. The Secretary may terminate the provisions of this part at

the end of any fiscal period in which the Secretary has found that

continuance of this subpart is not favored by a majority of producers

who, during a representative period determined by the Secretary, have

been engaged in the production for market of Walla Walla Sweet Onions

in the production area. Such termination shall be announced on or

before the end of the fiscal period.

(e) The provisions of this subpart shall, in any event, terminate

whenever the provisions of the Act authorizing them cease to be in

effect.

Sec. 956.87 Proceedings after termination.

od determined by the Secretary, have

been engaged in the production for market of Walla Walla Sweet Onions

in the production area. Such termination shall be announced on or

before the end of the fiscal period.

(e) The provisions of this subpart shall, in any event, terminate

whenever the provisions of the Act authorizing them cease to be in

effect.

Sec. 956.87 Proceedings after termination.

(a) Upon the termination of the provisions of this subpart, the

then functioning members of the committee shall continue as joint

trustees, for the purpose of liquidating the affairs of the committee,

of all funds and property then in the possession, or under control, of

the committee, including claims for any funds unpaid or property not

delivered at the time of such termination. Action by said trusteeship

shall require the concurrence of a majority of the said trustees.

(b) The said trustees shall continue in such capacity until

discharged by the Secretary; shall, from time to time, account for all

receipts and disbursements and deliver all property on hand, together

with all books and records of said committee and of the trustees, to

such person as the Secretary may direct; and shall upon the request of

the Secretary, execute such assignments or other instruments

necessary or appropriate to vest in such person full

title and right to all of the funds, property, and claims vested in

said committee or the trustees pursuant to this subpart.

(c) Any person to whom funds, property, or claims have been

transferred or delivered by the committee or its members pursuant to

this section shall be subject to the same obligations imposed upon the

members of the committee and upon the said trustees.

Sec. 956.88 Effect of termination or amendment.

Unless otherwise expressly provided by the Secretary, the

termination of this subpart or of any regulation issued pursuant to

this subpart, or the issuance of any amendments to either thereof,

shall not:

bers pursuant to

this section shall be subject to the same obligations imposed upon the

members of the committee and upon the said trustees.

Sec. 956.88 Effect of termination or amendment.

Unless otherwise expressly provided by the Secretary, the

termination of this subpart or of any regulation issued pursuant to

this subpart, or the issuance of any amendments to either thereof,

shall not:

(a) Affect or waive any right, duty, obligation, or liability which

shall have arisen or which may thereafter arise in connection with any

provision of this subpart;

(b) Release or extinguish any violation of this subpart or of any

regulations issued under this subpart; and

(c) Affect or impair any rights or remedies of the Secretary or of

any other person with respect to any such violations.

Sec. 956.89 Compliance.

No handler shall handle Walla Walla Sweet Onions except in

conformity to the provisions of this part.

Sec. 956.90 Right of the Secretary.

The members of the committee, including successors and alternates,

and any agent or employee appointed or employed by the committee shall

be subject to removal or suspension by the Secretary at any time. Each

and every order, regulation, decision, determination, or other act of

the committee shall be subject to the continuing right of the Secretary

to disapprove of the same at any time. Upon such disapproval, the

disapproved action of the committee shall be deemed null and void

except as to acts done in reliance thereon or in compliance therewith

prior to such disapproval by the Secretary.

Sec. 956.91 Duration of immunities.

The benefits, privileges, and immunities conferred upon any person

by virtue of this subpart shall cease upon the termination of this

subpart, except with respect to acts done under and during the

existence of this subpart.

Sec. 956.92 Agents.

xcept as to acts done in reliance thereon or in compliance therewith

prior to such disapproval by the Secretary.

Sec. 956.91 Duration of immunities.

The benefits, privileges, and immunities conferred upon any person

by virtue of this subpart shall cease upon the termination of this

subpart, except with respect to acts done under and during the

existence of this subpart.

Sec. 956.92 Agents.

The Secretary may, by designation in writing, name any person,

including any officer or employee of the Government, or name any agency

in the United States Department of Agriculture, to act as the

Secretary's agent or representative in connection with any of the

provisions of this part.

Sec. 956.93 Derogation.

Nothing contained in this part is, or shall be construed to be, in

derogation or in modification of the rights of the Secretary or of the

United States to exercise any powers granted by the Act or otherwise,

or, in accordance with such powers, to act in the premises whenever

such action is deemed advisable.

Sec. 956.94 Personal liability.

No member or alternate of the committee or any employee or agent

thereof, shall be held personally responsible, either individually or

jointly with others, in any way whatsoever, to any handler or to any

person for errors in judgment, mistakes, or other acts, either of

commission or omission, as such member, alternate, employee, or agent,

except for acts of dishonesty, willful misconduct, or gross negligence.

Sec. 956.95 Separability.

If any provision of this subpart is declared invalid, or the

applicability thereof to any person, circumstance, or thing is held

invalid, the validity of the remainder of this subpart, or the

applicability thereof to any other person, circumstance, or thing shall

not be affected thereby.

Sec. 956.96 Amendments.

Amendments to this subpart may be proposed, from time to time, by

the committee or by the Secretary.

Sec. 956.97 Counterparts.

alid, or the

applicability thereof to any person, circumstance, or thing is held

invalid, the validity of the remainder of this subpart, or the

applicability thereof to any other person, circumstance, or thing shall

not be affected thereby.

Sec. 956.96 Amendments.

Amendments to this subpart may be proposed, from time to time, by

the committee or by the Secretary.

Sec. 956.97 Counterparts.

This agreement may be executed in multiple counterparts, and when

one counterpart is signed by the Secretary, all such counterparts shall

constitute, when taken together, one and the same instrument as if all

signatures were contained in one original.

Sec. 956.98 Additional parties.

After the effective date hereof, any handler may become a party to

this agreement if a counterpart is executed by the handler and

delivered to the Secretary. This agreement shall take effect as to such

new contracting party at the time such counterpart is delivered to the

Secretary, and the benefits, privileges, and immunities conferred by

this agreement shall then be effective as to such new contracting

party.

Sec. 956.99 Order with marketing agreement.

Each signatory handler hereby requests the Secretary to issue,

pursuant to the Act, an order providing for regulating the handling of

Walla Walla Sweet Onions in the same manner as is provided for in this

agreement.

Note: This marketing agreement will not appear in the Code of

Federal Regulations.

United States Department of Agriculture, Agricultural Marketing

Service

Marketing Agreement Regulating the Handling of Onions Grown in

Walla Walla County, Washington, and Umatilla County, Oregon

for regulating the handling of

Walla Walla Sweet Onions in the same manner as is provided for in this

agreement.

Note: This marketing agreement will not appear in the Code of

Federal Regulations.

United States Department of Agriculture, Agricultural Marketing

Service

Marketing Agreement Regulating the Handling of Onions Grown in

Walla Walla County, Washington, and Umatilla County, Oregon

The parties hereto, in order to effectuate the declared policy

of the Agricultural Marketing Agreement Act of 1937, as amended

(Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674), and in

accordance with the applicable rules of practice and procedure

effective thereunder (7 CFR, Part 900), desire to enter into this

marketing agreement regulating the handling of onions grown in Walla

Walla County, Washington, and Umatilla County, Oregon; and each

party hereto agrees that such handling shall, from the effective

date of this marketing agreement, be in conformity to, and in

compliance with, the provisions of said marketing agreement.

The provisions of Secs. 956.1 to 956.96, inclusive, of Marketing

Order No. 956, (7 CFR, Part 956) of the order annexed to and made a

part of the decision of the Secretary of Agriculture with respect to

a proposed marketing agreement and order regulating the handling of

onions grown in Walla Walla County, Washington, and Umatilla County,

Oregon, plus the following additional provisions shall be, and the

same hereby are, the terms and conditions hereof; and the specified

provisions of said annexed order are hereby incorporated into this

marketing agreement as if set forth in full herein.

Sec. 956.97 Counterparts.

This agreement may be executed in multiple counterparts and when

one counterpart is signed by the Secretary, all such counterparts

shall constitute, when taken together, one and the same instrument

as if all signatures were contained in one original.

Sec. 956.98 Additional parties.

e hereby incorporated into this

marketing agreement as if set forth in full herein.

Sec. 956.97 Counterparts.

This agreement may be executed in multiple counterparts and when

one counterpart is signed by the Secretary, all such counterparts

shall constitute, when taken together, one and the same instrument

as if all signatures were contained in one original.

Sec. 956.98 Additional parties.

After the effective date hereof, any handler may become a party

to this agreement if a counterpart is executed by such handler and

delivered to the Secretary. This agreement shall take effect as to

such new contracting party at the time such counterpart is delivered

to the Secretary, and the benefits, privileges, and immunities

conferred by this agreement shall then be effective as to such new

contracting party.

Sec. 956.99 Order with marketing agreement.

Each signatory handler hereby requests the Secretary to issue,

pursuant to the act, an order providing for regulating the handling

of onions in the same manner as is provided in this agreement.

The undersigned hereby authorizes the Director, or Acting

Director, Fruit and Vegetable Division, Agricultural Marketing

Service, United States Department of Agriculture, to correct any

typographical errors which may have been made in this marketing

agreement.

In Witness Whereof, the contracting parties, acting under the

provisions of the act, for the purpose and subject to the

limitations therein contained, and not otherwise, have hereto set

their respective signatures and seals.

----------------------------------------------------------------------

(Firm Name)

----------------------------------------------------------------------

(Mailing Address)

----------------------------------------------------------------------

(City, State, and ZIP Code)

By:\1\-----------------------------------------------------------------

hereto set

their respective signatures and seals.

----------------------------------------------------------------------

(Firm Name)

----------------------------------------------------------------------

(Mailing Address)

----------------------------------------------------------------------

(City, State, and ZIP Code)

By:\1\-----------------------------------------------------------------

\1\If one of the contracting parties to this agreement is a

corporation, my signature constitutes certification that I have the

power granted to me by the Board of Directors to bind this

corporation to the marketing agreement.

Note: Public reporting burden for this collection of information

is estimated to average 20 minutes per response, including the time

for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and

reviewing the collection of information. Send comments regarding

this burden estimate or any other aspect of this collection of

information, including suggestions for reducing this burden, to the

Department of Agriculture, Clearance Officer, OIRM, AG Box 7630,

Administration Building, Washington, D.C. 20250; and to the Office

of Management and Budget, Paperwork Reduction Project, Washington,

D.C. 20503, regarding OMB No. 0581-0089. When replying, refer to the

OMB Number and Form Number in your letter.

---------------------------------------------------------------------------

(Signature)

----------------------------------------------------------------------

(Title)

----------------------------------------------------------------------

(Date of Execution)

(Corporate Seal: if none, so state)

(For use by incorporated handlers)

Certification of Resolution

(Corporation Only)

At a duly convened meeting of the Board of Directors of

----------------------------------------------------------------------

held at----------------------------------------------------------------

on the ________ day of ____________ 19____,

-----------

(Date of Execution)

(Corporate Seal: if none, so state)

(For use by incorporated handlers)

Certification of Resolution

(Corporation Only)

At a duly convened meeting of the Board of Directors of

----------------------------------------------------------------------

held at----------------------------------------------------------------

on the ________ day of ____________ 19____,

Resolved, That---------------------------------------------------------

shall become a party of the marketing agreement regulating the

handling of onions grown in Walla Walla County, Washington, and

Umatilla County, Oregon, which annexed to and made part of the

decision of the Secretary of Agriculture, and it is further,

Resolved, That

----------------------------------------------------------------------

(Name)

----------------------------------------------------------------------

(Title)

and--------------------------------------------------------------------

(Name)

----------------------------------------------------------------------

(Title)

be, and the same hereby are, authorized and directed severally or

jointly to sign, execute, and deliver counterparts of the said

agreement to the Secretary of Agriculture.

I,---------------------------------------------------------------------

Secretary of-----------------------------------------------------------

do hereby certify this is a true and correct copy of a resolution

adopted at the above named meeting as said resolution appears in the

minutes thereof.

----------------------------------------------------------------------

(Signature)

----------------------------------------------------------------------

(Address of Firm)

(Corporate Seal: if none, so state)

[FR Doc. 95-8428 Filed 4-4-95; 8:45 am]

BILLING CODE 3410-02-P