[Federal Register Volume 59, Number 217 (Thursday, November 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27759]
[[Page Unknown]]
[Federal Register: November 10, 1994]
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Part III
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 956
Sweet Onions Grown in the Walla Walla Valley of Southeast Washington
and Northeast Oregon; Recommended Decision; Proposed Rule
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; Recommended Decision and Opportunity
To File Written Exceptions to the Proposed Marketing Agreement and
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This recommended decision proposes the issuance of a marketing
agreement and order for Walla Walla Sweet Onions in southern Washington
and northeast Oregon. 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.
DATES: Comments must be received by December 12, 1994.
ADDRESSES: Four copies of all comments should be sent to the Hearing
Clerk, United States Department of Agriculture (USDA), Room 1079, South
Building, Washington, D.C. 20250-9200. All written comments will be
made available for public inspection at the Office of the Hearing Clerk
during regular business hours.
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].
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: Notice is hereby given of the filing with
the Hearing Clerk of this recommended decision with respect to a
proposed marketing agreement and order regulating the handling of sweet
onions grown in the Walla Walla Valley of Southeast Washington and
Northeast Oregon. This notice is issued 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].
The proposed Federal marketing agreement and order (order) were
formulated on the record of a public hearing held at the Education
Service District Building in Walla Walla, Washington, on November 15,
1993. The hearing was held pursuant to the provisions of the Act.
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. None were filed.
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.
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. 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 industries.
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 the drop in grower returns experienced in
past seasons. This would be achieved by strengthening demand and
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 the 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 quantity 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 would 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 would be 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 with a two year record 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. 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.
Material Issues: The material issues presented on the record of the
hearing are as follows:
1. Whether the handling of Walla Walla Sweet Onions grown in the
proposed production area is in the current of interstate or foreign
commerce, or directly burdens, obstructs, or affects such commerce;
2. Whether the economic and marketing conditions are such that they
justify a need for an order which will tend to effectuate the declared
policy of the Act;
3. What the definition of the production area and the commodity to
be covered by the order should be;
4. What the identity of the persons and the marketing transactions
to be regulated should be; and
5. What the specific terms and provisions of the order should be,
including:
(a) The definition of terms used therein which are necessary and
incidental to attain the declared policy and objectives of the order
and the Act;
(b) The establishment, composition, maintenance, procedures, powers
and duties of a committee that would be the local administrative agency
for assisting the Secretary in the administration of the order;
(c) The authority to incur expenses and the procedure to levy
assessments on handlers to obtain revenue for paying such expenses;
(d) The authority to establish or provide for the establishment of
production and marketing research and marketing development projects,
including paid advertising;
(e) The authority to establish regulations for container markings
and safeguards for such regulations;
(f) The establishment of requirements for handler reporting and
recordkeeping;
(g) The requirement of compliance with all provisions of the order
and with any regulations issued under it, and
(h) Miscellaneous provisions as set forth in Secs. 956.85 through
956.96 of the Notice of Hearing published in the Federal Register of
October 29, 1993 [58 FR 58105] which are common to all orders, and
other terms and conditions published at Secs. 956.97 through 956.99
that are common to marketing agreements only.
Findings and Conclusions:
The following proposed findings and conclusions on the material
issues are based on the record of the hearing.
1. The record indicates that the handling of Walla Walla Sweet
Onions grown in designated parts of Walla Walla County, Washington, and
designated parts of Umatilla County, Oregon, is in the current of
interstate or foreign commerce or directly burdens, obstructs or
affects such commerce. The proposed production area is discussed in
material issue 3.
The record evidence shows that in July 1989, 49 percent of the
commercial shipments of Walla Walla Sweet Onions were marketed in
Seattle, Washington. That percentage increased over the following four
years, and, in 1993, 71 percent of the volume moved to outlets inside
the State, the remaining 29 percent going to both eastern and western
destinations outside Washington and Oregon. An indeterminate volume of
Walla Walla Sweet Onions is sold within the proposed production area at
roadside stands, and some are marketed throughout the United States. A
negligible percentage of the crop is processed. The record indicates
that no Walla Walla Sweet Onions are currently exported, but that they
may be in the future.
In addition to Seattle, the record indicates that other major
markets for Walla Walla Sweet Onions include Chicago, Illinois, and San
Francisco, California. USDA Market News reports show that these three
markets accounted for about 12 percent of commercial shipments in June,
July, and August of 1992. Walla Walla Sweet Onions also were marketed
(in descending order of volume marketed) in Los Angeles, California;
Atlanta, Georgia; Boston, Massachusetts; New York, New York; Baltimore,
Maryland; Cincinnati, Ohio; St. Louis, Missouri; Dallas, Texas; Miami,
Florida; Pittsburgh, Pennsylvania; and Detroit, Michigan.
Record evidence shows that any handling of Walla Walla Sweet Onions
in fresh market channels, including intrastate shipments, exerts an
influence on all other handling of such onions and vice versa.
Therefore, because such shipments directly burden, obstruct, or affect
such commerce, all handling of Walla Walla Sweet Onions grown in the
proposed production area should be covered by the order, and an order
for Walla Walla Sweet Onions is supported by the evidence in the record
of hearing.
2. The record indicates that onions are grown in each of the 50
States, but commercial production is concentrated in a few. There are
three major seasonal groups of U.S. dry onions. They include spring
onions produced mainly in Georgia, Texas, and California; summer non-
storage onions grown in New Mexico, Texas, and Washington; and summer
storage onions produced mostly in Colorado, Idaho, Michigan, New York,
Ohio, Oregon, Utah, Minnesota, Washington, and Wisconsin.
The record also indicates that during its season, the Walla Walla
Sweet Onion industry faces strong competition from other summer non-
storage onion suppliers. Two major competitors are New Mexico, which,
in 1992 accounted for 74 percent of the summer non-storage crop, and
the High Plains and Trans-Pecos areas of Texas, with 17 percent of the
crop.
The shipping season for Walla Walla Sweet Onions runs from late
June through early August each year. About 23 percent of the volume
moves in June, about 40 percent in July, and the remaining 37 percent
is shipped in August.
As is true with other commodities, sellers of onions conduct their
businesses to obtain maximum returns for the product they have for
sale. Handlers and other sellers therefore continually survey all
accessible markets so that they may take advantage of the best possible
prices available. Further, they constantly attempt to develop demand
and seek new markets for their product. Likewise, onion buyers consider
prices and availability of onions from all sources in making their
purchasing decisions. Frequent market news reports of onion prices are
available in shipping areas, and means of rapid communication are
readily available. For these reasons, onion supplies and prices in any
one location are promptly known elsewhere and have a direct effect on
onion supplies and prices in other locations.
Summer storage onions normally account for over half the U.S. dry
onion crop. About 55 percent of the 1993 dry onion crop was summer
storage compared to 59 percent in 1992. The two principal types of
onions grown for the summer storage crop are globe and sweet Spanish
type onions. Globe onions are the dominant type grown in the midwest
and east and are not generally adaptable to production in the southern
States. They tend to have a strong flavor, are firm to hard to the
touch, and keep well under proper storage conditions. Spanish type
onions are particularly well adapted to production in the western
States. They are noted for their milder, sweeter flavor, but have a
more limited storage life than globes. Onions grown in the northern
States are harvested primarily in July and August, and the bulk of the
crop is placed in storage. Marketing of the late-summer onion crop
begins shortly after harvest and continues through the fall and winter
and into the spring months.
Spring non-storage onions rank second in seasonal importance.
Production totaled eight million hundredweight in 1993, 14 percent of
the U.S. total. Spring crop onions are grown primarily in the southern
States and are principally of the Grano and Granex types. These types
of onions are typically sweeter and milder than the globe type.
Additionally, they are more tender and perishable than either the globe
or Spanish type onion. Unlike the summer storage onion crop, the spring
crop is marketed relatively soon after harvest. Major producers of the
spring onion crop are California, Texas, Arizona, and Georgia.
Summer non-storage production reached only 4.8 million
hundredweight in 1993, but this was a record crop for summer non-
storage production; the 1992 crop was 4.3 million hundredweight.
Testimony indicated that onions were first planted commercially in
Walla Walla County, Washington, located in what is now known as the
Walla Walla Valley around the year 1900. According to testimony, it was
discovered that the unique growing conditions in this area of
southeastern Washington and northeastern Oregon, particularly the low
sulfur content of the soil, yielded a sweeter, milder onion than those
grown elsewhere. In 1915, 500 carlots consisting of 300 100-pound sacks
each were grown and shipped from the outskirts of Walla Walla.
The record indicates that the majority of current commercial non-
storage onion production in Washington is in the Walla Walla Valley.
Testimony shows that separate acreage, price, and production statistics
are not available for the Walla Walla Valley alone, but also include
other areas in Washington, such as the Tri-cities area, the Yakima
Valley, and the Columbia River Basin. The record indicates that neither
the National Agricultural Statistics Service (NASS) nor State reporting
services for Washington and Oregon report separate statistics for Walla
Walla Sweet Onions. Such statistics are grouped together as summer-non
storage onions. Witnesses testified that Walla Walla Sweet Onion
acreage is included in the total for Washington non-storage onions, so
that any figure representing Walla Walla Sweet Onions is necessarily an
estimate. Moreover, no statistical data are available for Umatilla
County, Oregon, although one witness testified that perhaps 150 to 200
acres of Walla Walla Sweet Onions may be grown. As reported by NASS,
summer non-storage onions grown in Washington in 1980 totaled 780
acres, increasing until 1988 when 1,600 acres were harvested. Since
then, acreage has declined to 1,000 acres in 1992. Testimony was
offered that Walla Walla Sweet Onion acreage has been declining at the
rate of about 100 acres per year. Moreover, although harvested acreage
in Washington for 1991 was reported as 900 acres, the record indicates
that the total number of acres of sweet onions harvested in the Walla
Walla Valley was as little as half that, the remaining acreage being in
other areas in the State.
Washington summer non-storage acreage currently accounts for about
.71 percent of the U.S. annual total, and an estimated 9 percent of the
summer non-storage crop. Washington accounts for less than a tenth of
summer non-storage onion production, however, because Washington's
acreage is much less than that of competing growing areas in New Mexico
and Texas. The record indicates that the average yield for the
Washington summer non-storage onion crop in 1992 was about 390
hundredweight per acre. This compares with the average yield for all
summer non-storage onions of 341 hundredweight per acre.
Walla Walla Sweet Onion plantings begin about September 10 and end
as late as October. The majority of growers attempt to have most of the
crop planted by mid- to late-September. Since the growing season spans
the winter months, freeze damage to Walla Walla Sweet Onions is a risk
growers face each year. Harvest typically begins in the following June.
Walla Walla Sweet Onions are shipped from June through August, with
peak volume moving in July. Statistical data indicate that production
of non-storage onions in Washington has risen in recent years, totaling
29.7 million pounds in 1991, 39.0 million pounds in 1992, and 36.0
million pounds in 1993.
The record indicates that one weakness in current post harvest
handling practices is storage life. Current produced varieties of Walla
Walla Sweet Onions are highly perishable and cannot be stored for
extended periods. Preliminary research has shown that the life of Walla
Walla Sweet Onions can be extended by low temperature storage.
Additionally, the identification of varieties with longer storage
capability would benefit the industry.
The record indicates that further extending the storage life of
Walla Walla Sweet Onions has become a critical need of the industry,
particularly in view of its competitive pressures. Witnesses testified
that the relatively short life of Walla Walla Sweet Onions accentuates
the industry's marketing risks by adding an urgency to move the produce
quickly into wholesale and retail channels without regard to existing
supplies and prices in those markets. The proposed order would
authorize production research projects to address these problems.
Season average prices for Washington summer non-storage onions
decreased 31 percent to $16.60 per hundredweight in 1992. Prices
reached a record high in 1991 at $23.90 per hundredweight. The 1992
crop was valued at $6.5 million, which was an 8 percent decrease from
the previous season. Monthly prices generally decrease during the peak
harvesting in the State of Washington. There are no separate price data
available for Umatilla County. However, given the small production
area, such prices from the Walla Walla Valley area of Umatilla County
should be similar to those of the adjacent area of Washington.
Monthly prices received for Washington summer non-storage onions
decreased 9 percent from June 1992, to August, 1992 ($17.50 per
hundredweight to $16.00 per hundredweight). Prices for 1991 were
considerably higher, beginning at $29.40 per hundredweight and ending
at $20.00 per hundredweight. The five-year average non-storage onion
prices in Washington (1988-1992) for the period June through August,
respectively, was $20.94, $16.94, and $14.06 per hundredweight. This
compared with total U.S. five-year non-storage onion average prices of
$12.22, $14.20, and $12.16 per hundredweight for the same period. U.S.
summer non-storage prices in June of 1992 were 37 percent lower than
Washington summer non-storage prices during that period, but prices
began to even out in August of 1992 at $16.00 per hundredweight for
Washington summer non-storage onions and rose 23 percent to $15.80 per
hundredweight for the U.S. total for non-storage onions.
According to testimony, a major share of the Walla Walla Sweet
Onion market is being lost to two major competitors, South Texas onions
and those from Vidalia, Georgia. Onions grown in these areas are
covered by Federal marketing order programs that fund promotion and
advertising activities and, therefore, help to make buyers and
consumers more aware of the favorable attributes of the onions.
Marketing order programs for Idaho-Eastern Oregon onions regulate
the handling of onions grown on approximately 17,600 acres; the South
Texas program has about 14,200 acres; and the Vidalia program covers
about 8,000 acres. The industry believes that a research and promotion
program is necessary to expand Walla Walla markets.
Witnesses attributed the recent downward trend in Walla Walla Sweet
Onion prices in part to increasing competitive pressures from other,
larger onion growing areas. Testimony indicated that while the Walla
Walla Sweet Onion is considered unique in its sweetness, other areas
have or are developing sweet varieties of onions to capitalize on the
strong consumer demand for sweet onions. For example, the South Texas
onion industry has funded, through a Federal marketing order, varietal
research to develop an onion variety with the desired characteristics
of being mild tasting and sweet. This variety, called the Texas Grano
1015 Y, has been actively promoted. The record indicates that the South
Texas onion industry budgeted funds for research and market development
activities through its marketing order. Additionally, handlers in Idaho
and Eastern Oregon, also under a Federal marketing order program,
budgeted funds during the same period for promotion and research of its
sweet Spanish onion. Witnesses attributed the success these other
growing areas have had to their ability to pool available resources
under their respective marketing orders. Proponents testified that the
research and promotion activities conducted by competitors have
assisted those competing industries in developing and promoting sweeter
onion varieties that are challenging the Walla Walla Sweet Onion for
its share of the onion market. It is believed that a similar program is
necessary for Walla Walla Sweet Onions to remain profitable in this
competitive industry.
The record indicates that most Northwest residents are familiar
with the taste and origin of the Walla Walla Sweet Onion. The record
also indicates that they are aware of its unique flavor characteristics
and are loyal customers. However, as the Walla Walla industry has
grown, the development of new markets has become necessary. Testimony
demonstrated the need to differentiate the Walla Walla Sweet Onion from
other onions available in the marketplace to garner customer loyalty in
markets located outside Washington and Oregon.
The record indicates that most Walla Walla Sweet Onion growers and
handlers are not sufficiently large to finance promotion and research
programs on an individual basis. In addition, public funds to finance
such projects are scarce. Heretofore, the Walla Walla Sweet Onion
industry has attempted to operate and fund research and development
projects under voluntary programs. Eventually, these programs ceased to
operate because of inadequate support and financing. Witness testimony
unanimously supported a marketing order program to be financed by all
handlers, to strengthen consumer demand through promotion of the
commodity and reducing costs through production research.
Witnesses also testified that market research, in the form of data
collection and analysis, would be an essential part of an overall
marketing and promotion strategy. Currently, limited data is gathered
with respect to Walla Walla Sweet Onions. To effectively promote and
market Walla Walla Sweet Onions, proponents testified that additional
knowledge of market conditions and access to complete data is necessary
to make prudent decisions for focusing promotional efforts and
promoting the efficient allocation of resources.
The record indicates that many onions sold as Walla Walla Sweet
Onions do not have the same mild flavor and other characteristics of
Walla Walla Sweet Onions grown in the proposed production area. Several
witnesses testified that often such onions were identified as Walla
Walla Sweet Onions grown in other states or areas near the Walla Walla
Valley. Testimony indicates that the growers of the Walla Walla Valley
have spent time and effort attempting to market the Walla Walla Sweet
Onion as one they believe has unique characteristics because of the
area in which the onions are grown. These growers believe that such
efforts have been offset by growers and handlers selling onions
produced outside the proposed production area as Walla Walla Sweet
Onions. Testimony indicated that 40 percent of the onions sold and
described as Walla Walla Sweet Onions were grown outside the proposed
production area and, therefore, were not true Walla Walla Sweet Onions.
In summary, a number of problems were identified in the record that
could be resolved through a marketing order that would enable the Walla
Walla industry to work together collectively. Identifying varieties
that have good seedling survival rate, a low susceptibility to cold
damage, good eating quality, and increased storage capability would add
stability to the supply and quality of the Walla Walla Sweet Onion
crop, and could increase yields and reduce costs. The marketing order
program could assist handlers in solving mutual post harvest handling
problems, in the interest of increasing the quality of their offerings,
reducing costs and increasing returns. Finally, authorizing industry
financing of promotion and advertising programs would enable the
industry to increase consumer awareness of its unique commodity,
strengthen demand and increase sales.
In view of the foregoing, it is concluded that there is a need for
a marketing order for Walla Walla Sweet Onions grown in designated
parts of Washington and Oregon. The order would meet many of the needs
of the industry and would tend to effectuate the declared policy of the
Act.
3. A definition of the term ``production area'' should be included
in the order to delineate the area in which Walla Walla Sweet Onions
must be grown before the handling thereof is subject to the marketing
order. Such term should include designated parts of Walla Walla County,
Washington, and Umatilla County, Oregon.
The area defined in the proposed order comprises what is generally
recognized as the Walla Walla Valley of Washington and Oregon. The
counties included are contiguous and share essentially the same
growing, harvesting and marketing conditions with respect to Walla
Walla Sweet Onions. While production of Walla Walla Sweet Onions is
currently concentrated in the two counties of Walla Walla and Umatilla,
onions of all types are grown throughout the proposed production area,
as well as adjacent areas.
At the hearing, a witness proposed revising the definition of
production area appearing in the Notice of Hearing to include an area
north of the Touchet River in Washington. However, testimony indicated
that this area is dry land of a different soil type. Further, it does
not have a history of Walla Walla Sweet Onion production, so that
onions produced there may not have the same quality attributes as
others from the proposed production area. The area as defined accounts
for much of the current sweet onion acreage in Washington and Oregon
and, according to record evidence, is generally recognized by the onion
trade and consumers as comprising the Walla Walla Sweet Onion region of
Washington and Oregon. This is because of the unique soil and growing
conditions in the highly localized area. Furthermore, the production
area as defined in the marketing order is the smallest practicable
geographic area to which the order should be applied, consistent with
carrying out the declared policy of the Act.
The term ``Walla Walla Sweet Onion'' should be defined to specify
the commodity covered by the proposed order and to which the terms and
provisions of the marketing order would be applicable. The record
indicates that a ``Walla Walla Sweet Onion'' may be any of a number of
onion varieties grown in the production area, rather than one specific
variety of onion. However, testimony indicated that onions acquire
special characteristics when grown in the proposed production area.
This is due in part to the low sulfur content of the soil. Further,
according to testimony, the term ``Walla Walla Sweet Onion'' has a
specific meaning in the onion trade, and consumers perceive Walla Walla
Sweet Onions as a unique commodity distinct from other onions. For
these reasons, the term ``Walla Walla Sweet Onion'' should be defined
to mean all varieties of the genus and species Allium cepa, except
sweet Spanish types, grown in the proposed production area.
To provide for the possibility that other types of onions that have
characteristics similar to what is now known as the ``Walla Walla Sweet
Onion'' may be grown in the production area in the future, the
committee should be authorized, upon approval of the Secretary, to add
those types of onions to the types included under the term ``Walla
Walla Sweet Onion.'' This would be accomplished through informal
rulemaking procedures.
The definition should include dry onions, onions grown for
transplanting, and salad onions. The definition in the order as
originally proposed also included onion seed. However, testimony
indicated that regulating seed was not necessary, as the intent of the
proponents is to define Walla Walla Sweet Onions as only those sweet
onions grown in the production area. Accordingly, if onions are grown
outside the proposed production area from seed produced within that
area, the resulting onions would not be true Walla Walla Sweet Onions.
Testimony indicated that this is because of the soil and climate unique
to the Walla Walla River Valley, comprising designated parts of Walla
Walla County, Washington, and Umatilla County, Oregon. Accordingly, the
term ``seeds'' should not be included in the proposed definition of
Walla Walla Sweet Onions.
4. The term ``handler'' is synonymous with the term ``shipper'' and
should be defined to identify the persons who would be subject to
regulation under the order. Such term should apply to any person,
except a common or contract carrier transporting Walla Walla Sweet
Onions owned by another person, who first performs any of the
activities within the scope of the term ``handle'' as hereinafter
defined. The definition identifies persons who would be responsible for
meeting the requirements of the order, including paying assessments and
submitting reports.
Common or contract carriers transporting Walla Walla Sweet Onions
owned by another person would not be considered as handlers, even
though they transport Walla Walla Sweet Onions, because such carriers
do not have control over the Walla Walla Sweet Onions being
transported. Nor are they the persons who cause the introduction of
such Walla Walla Sweet Onions into the stream of commerce. The only
interest of a common or contract carrier in such Walla Walla Sweet
Onions is to transport them for a service charge to destinations
determined by others.
Growers who handle their own Walla Walla Sweet Onions or Walla
Walla Sweet Onions grown by others would be considered handlers under
the order. Any person who purchases Walla Walla Sweet Onions from
growers and performs any other handling function such as grading and
packing such Walla Walla Sweet Onions would be a handler.
The term ``handle'' should be defined in the order to establish the
specific functions that would place Walla Walla Sweet Onions in the
current of commerce within the production area or between the
production area and any point outside thereof, and to provide a basis
for determining which functions are subject to regulation under
authority of the marketing order. ``Handle'' and ``ship'' are used
synonymously and the definition should so indicate.
The record indicates that the term ``handle'' should include the
acts of packaging, loading, transporting or selling Walla Walla Sweet
Onions. However, the term ``handle'' should not include the
transportation, sale or delivery of field-run Walla Walla Sweet Onions
to a handler within the production area or to a handler outside the
production area but within Walla Walla County, Washington, or Umatilla
County, Oregon, to have such onions prepared for market. In this case,
the onions have not yet been prepared for market nor are they in their
existing condition being transported to market. Most sellers and buyers
do not consider them as yet suitable or appropriate for commercial
transactions and, as such, they have not yet entered the stream of
commerce.
Walla Walla Sweet Onion producers sometimes market their Walla
Walla Sweet Onions themselves. In such cases, those growers would be
the first handlers of Walla Walla Sweet Onions and would be responsible
for paying assessments and complying with other order requirements.
5.(a) Certain terms should be defined for the purpose of
designating specifically their applicability and limitations whenever
they are used in the order. The definition of terms discussed below is
necessary and incidental to attain the declared policy and objectives
of the order and Act.
``Secretary'' should be defined to mean the Secretary of
Agriculture of the United States, or any officer, or employee of the
United States Department of Agriculture who has been or who may be
delegated the authority to act for the Secretary.
``Act'' should be defined to mean the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674). This is the
statute under which the proposed regulatory program would be operative,
and this definition avoids the need to refer to the citation throughout
the order.
``Person'' should be defined to mean an individual, partnership,
corporation, association, or any other business unit. This definition
is the same as that contained in the Act and insures that it has the
same meaning in the order as it has in the Act.
The term ``registered handler'' should be defined to mean a person
who is a handler with adequate facilities for procuring and sorting,
grading, packaging, and performing any other handling function or who
is a handler with access to such facilities. This provision would
require all Walla Walla Sweet Onion handlers to register with the
committee after meeting certain qualifications. Some handlers may have
grading and storage facilities outside of the production area. Handler
registration would aid the committee in determining compliance with
order requirements. Registration also would enable the committee to
obtain the necessary information to levy assessments.
No testimony was presented concerning the actual method of
registration. However, based on similar orders using handler
registration the committee should be authorized to recommend, for
approval of the Secretary, procedures with respect to handler
registration. This provision has been added to the definition of
registered handler.
The term ``container'' should be defined as a box, bag, crate,
hamper, basket, package, or any other receptacle used in packaging,
transporting, sales, shipment, or other handling of Walla Walla Sweet
Onions. It is necessary to define the term since it may be used
throughout the proposed order and any rules established thereunder.
The term ``producer'' should be synonymous with ``grower'' and
should be defined to identify those persons who are eligible to vote
for, and serve as, producer members and alternate producer members on
the committee and those who may vote in any referendum. The term should
mean any person engaged in a proprietary capacity in the production of
Walla Walla Sweet Onions for market within the production area. Each
business unit (such as a corporation or partnership) should be
considered a single producer and should have a single vote in
nomination proceedings and referenda. The term ``producer'' should
include any person who owns or shares in the ownership of Walla Walla
Sweet Onions such as a landowner landlord, tenant, or sharecropper. A
person who owns and farms land resulting in that person's ownership of
the Walla Walla Sweet Onions produced on such land should be considered
a producer. The same is true with respect to a person who rents and
farms land resulting in that person's ownership of all or part of the
Walla Walla Sweet Onions produced on that land.
Likewise, any person who owns land which that person does not farm,
but as rental for such land obtains the ownership of a portion of the
Walla Walla Sweet Onions produced thereon, should be regarded as a
producer for that portion of the Walla Walla Sweet Onions received as
rent. The tenant on such land should be regarded as a producer for the
remaining portion produced on such land.
A joint venture is one whereby several persons contribute resources
to a single endeavor to produce and market a Walla Walla Sweet Onion
crop. In such venture, one party may be the farmer who contributes one
or more factors such as labor, time, production facilities or cultural
skills, and the other party may be a handler who contributes money and
cultural, harvesting, and marketing supervision. Normally, a husband
and wife operation would be considered a partnership. Any individual,
partnership, family enterprise, organization, estate, or other business
unit currently engaged in the production of Walla Walla Sweet Onions
for market would be considered a producer under the order, and would be
entitled to vote in referenda and committee nominations. Each party
would have to have title to at least part of the crop produced,
electing its disposition, and receiving the proceeds therefrom. This
control could come from owning and farming land producing Walla Walla
Sweet Onions, payment for farming services performed, or a landlord's
share of the crop for the use of the producing land. A landlord who
only receives cash for the land would not be eligible to vote. A
business unit would be able to cast only one vote regardless of the
number and locations of its farms, but each separate legal entity would
be entitled to vote.
A number of producers in the production area own or operate packing
sheds. A producer who owns or operates a packing shed should not be
precluded from qualifying as a producer under the order.
The term ``Varieties'' should mean all classifications,
subdivisions, or types of Walla Walla Sweet Onions that are commonly
recognized by the trade and officially recognized by the U.S.
Department of Agriculture or recommended by the committee and approved
by the Secretary.
Testimony indicated that only Walla Walla Sweet Onions or
subdivisions or varieties thereof would be subject to any regulations
issued pursuant to the proposed order, and that varieties of onions
grown in the production area not possessing characteristics of Walla
Walla Sweet Onions would not be included. Varieties not included would
include hybrid varieties of the sweet Spanish storage type onion.
The term ``Committee'' should be defined to mean the administrative
agency known as the Walla Walla Sweet Onion Committee established under
the provisions of the order. Such a committee is authorized by the Act,
and this definition is merely to avoid the necessity of repeating the
full name each time it is used.
The term ``fiscal period'' should be defined to mean the annual
period for which the committee would plan the use of its funds. This
period should be established to allow sufficient time prior to the time
Walla Walla Sweet Onions are first shipped for the committee to
organize and develop its budget for the ensuing season. However, it
should also be set to minimize the incurring of expenses during a
fiscal period prior to the time assessment income is available to
defray such expenses.
The Notice of Hearing proposed that ``fiscal period'' mean the 12-
month period beginning June 1 and ending the following May 31. Record
evidence indicates that the harvesting and marketing cycle for Walla
Walla Sweet Onions grown in the production area begins in June and ends
in August. The fiscal period should coincide with the Walla Walla Sweet
Onion crop year, because the industry typically plans its operation on
this basis. Hearing testimony supported the fiscal period being
established for a 12-month period beginning June 1 and ending May 31 of
the next year.
However, based on future experience, it may be desirable to
establish a fiscal period other than one ending on May 31. Thus,
authority should be included in the order to provide for the
establishment of a different fiscal period if recommended by the
committee and approved by the Secretary through informal rulemaking
procedures. In any event, the beginning date of any new fiscal period
should be sufficiently in advance of the harvesting season to permit
the committee to formulate its marketing policy and perform other
administrative functions. Also, it should be recognized that if at some
future date there is a change in the fiscal period, such change would
result in a transition period.
(b) Pursuant to the Act, it is desirable to establish an agency to
administer the order locally as an aid to the Secretary in carrying out
the declared policy of the Act and to provide for effective and
efficient operation of the order. As proposed in Sec. 956.20, the Walla
Walla Sweet Onion Committee should therefore be established and consist
of ten members, including one public member. The record indicates that
a committee composed of ten members, with a like number of alternates,
would provide adequate representation and would provide for reasonable
judgment and deliberation with respect to recommendations made to the
Secretary, and in the discharge of other committee duties.
Since the order is intended to primarily benefit Walla Walla Sweet
Onion producers, it is appropriate that the committee be comprised
primarily of growers. Six of the ten committee members should therefore
be Walla Walla Sweet Onion growers. Since the program would be financed
by handlers, and handlers would be responsible for complying with the
terms of the marketing order, however, it would be reasonable to
provide for handler representation on the committee as well. For this
reason, proponents proposed that, of the ten members on the committee,
three of those members should be handlers.
The record indicates that producer members and their alternates
should be selected from the production area at large. Since the
production area is relatively small, this method should be adequate to
ensure equitable representation on the committee. The record indicates
that Walla Walla Sweet Onion production is currently located in Walla
Walla County in Washington, and Umatilla County in Oregon, which
together account for all of the production.
Hearing testimony indicated that the six persons selected to serve
as grower members or alternates should be individuals who are
producers, or officers or employees of producers. Persons selected to
serve as handlers should be engaged in handling Walla Walla Sweet
Onions. Such persons could be expected to have strong interests in the
effects of committee decisions of Walla Walla Sweet Onion producers and
handlers.
To help ensure that the committee will not have a membership with
partiality toward a single handling entity, the proposal also contains
a provision that, at the time of selection, no more than two producer
members may be affiliated with the same handler.
Testimony indicates that a producer member should have at least
three years experience in the production of Walla Walla Sweet Onions.
The proponents believe that because committee membership is a heavy
responsibility requiring a high degree of individual initiative for
what is done and how it is done, and cultural practices for Walla Walla
Sweet Onions are diverse, it would take three years of experience
producing Walla Walla Sweet Onions in order to become knowledgeable
about the industry.
At the hearing, witnesses supported adding a public member to the
committee. While the influence of consumers would be implicitly present
in the deliberations of the producer and handler committee members, and
all meetings would be public, the appointment of a public member would
offer many advantages. One would be direct communication between
industry members and the public member, who would have no connection
with the industry and whose opinions would afford the industry an
opportunity to discuss its problems and concerns with someone who would
view these problems and concerns from outside the Walla Walla Sweet
Onion industry.
The public representative and that person's alternate should not be
permitted to have a direct financial interest in the production,
processing, financing, buying, packing, or marketing of Walla Walla
Sweet Onions except as a consumer, nor be a director, officer, or
employee of any firm so engaged. Such public representatives should be
able to devote sufficient time and express a willingness to attend
committee activities regularly and to familiarize themselves with the
background and economics of the industry.
Proposed Sec. 956.25 states that each member of the committee,
including the public member, should have an alternate. This would
ensure that all portions of the production area are adequately
represented in the conduct of the committee's business and that the
continuity of operation is not interrupted. The order should provide
that alternate members should meet the same qualifications as their
respective members, except for tenure and growing experience. They
would act in the place and stead of their respective members during
temporary absences. In the case of the death, removal, resignation, or
disqualification of a member, the alternate should serve as member
until a new member is selected and has qualified.
Proposed Sec. 956.21 states that, with the exception of initial
members, the term of office of committee members and their respective
alternates should be for three years and should begin on June 1 and end
on May 31, or for such other three year period as the committee may
recommend and the Secretary approve. The record indicates that the term
of office should begin on June 1 because that is considered the
beginning of the Walla Walla Sweet Onion crop year. The Walla Walla
Sweet Onion shipping season generally ends in August and work begins
again in September when growers begin seeding for the next year's crop.
At that point in time, it can be determined which growers have remained
in business and qualify to serve on the committee.
A three-year term would be appropriate because it would give
members sufficient time to become familiar with committee operations
and enable them to make meaningful contributions at committee meetings.
Furthermore, a three-year term would enable establishment of a rotation
so that approximately one-third of the committee membership would
terminate each year. Staggered terms would lend continuity to the
committee by insuring that some experienced members would be on the
committee at all times. Therefore, the order should provide that the
terms shall be determined so that approximately one-third of the total
committee membership terminates each year.
The Notice of Hearing proposed that the term of office for initial
members and alternates should be established so that one-third of the
initial producer and handler members and alternates would serve for a
one-year term, one-third would serve for a two-year term, and one-third
would serve for a three-year term. Since there would be only one public
member, there is no need to provide for staggering that membership; the
initial public member should serve a three-year term of office.
The effective date of the order, if issued, may not coincide with
the specified beginning date of the terms of office of committee
members and alternates. Therefore, a provision is necessary to adjust
the initial terms of office. To accomplish this, the order should
provide that the terms of office of the initial members and alternates
shall begin as soon as possible after the effective date of the order.
In the event that the initial members are selected prior to June 1,
1995, an example of how the initial terms of office could be adjusted
is as follows: the initial one-year term would not end on May 31, 1995,
but would continue until May 31, 1996. Similarly, the two-year and
three-year terms would end on May 31, 1997, and 1998, respectively. For
the purposes of applying the tenure requirements of the proposed order,
each of these initial terms would be considered as a one-year, a two-
year, or a three-year term even though the actual period of the
appointment may be several months longer.
To prevent unnecessary vacancies from occurring on the committee,
the order should provide that members and alternates shall serve in
such capacity for the term of office, or portion thereof, for which
they are selected and have qualified, and until their respective
successors are selected. However, so that there is a continual turnover
in membership and infusion of new ideas, the order should provide that
no member, including the public member, may serve more than two
consecutive terms on the committee unless specifically exempted by the
Secretary. After serving two consecutive terms, a committee member
should be eligible to serve as an alternate, but should be ineligible
to serve as a member for a period of one year. These tenure
requirements should not apply to alternate members.
Testimony indicates that there should be no tenure restriction on
alternate members. The proponents believe that establishing a maximum
of two three-year terms for alternate members would serve no useful
purpose, but potentially could limit the pool of candidates for full
committee membership. Testimony also indicates that producers with less
than three years experience growing Walla Walla Sweet Onions should be
eligible for appointment to the committee as alternate members.
To guard against the possibility of a position remaining vacant
because of a lack of eligible nominees or persons eligible to serve,
the Secretary should have the authority to except an individual from
tenure limitation. Such an exception would be made in special and
unusual circumstances. Limiting the tenure of committee membership as
proposed would be in accordance with the Secretary's ``Guidelines for
Fruit, Vegetable, and Specialty Crop Marketing Orders.''
The order should provide that the Secretary shall have the
authority to select members and alternates of the committee, but the
Walla Walla Sweet Onion growers and handlers should have the
responsibility for recommending nominees to the Secretary for selection
under proposed Sec. 956.22. The nomination procedure outlined in the
order would provide a means of making available to the Secretary the
names of prospective members and alternates desired by the industry to
serve on the committee.
The record does not indicate how the initial committee should be
nominated, but an often used method in such instances is for the
Secretary to conduct a meeting to nominate initial industry committee
members. All producers of record in the production area should receive
notice of the meeting in sufficient time to enable them to attend.
Nominations should be received and voted upon at these meetings. Those
persons receiving the highest number of votes for each of the positions
to be filled should be considered the nominee for that position.
Handler nominations should be accomplished in the same way.
The committee should be responsible for conducting subsequent
nomination meetings, and providing notice to Walla Walla Sweet Onion
producers and handlers of those meetings. The proposal in the Notice
also provided that at least one nominee be submitted for each position
for the Secretary's consideration. Proposed Sec. 956.22 provides that
one nominee be designated for each member and alternate member position
that is vacant or is about to become vacant. However, the Secretary
would reserve the right to select any qualified candidate willing to
serve.
Testimony indicates that it would be desirable to hold nomination
meetings in conjunction with other industry meetings, such as a
shipper's association, grower's association, or Extension Service
meetings. Such a procedure would encourage higher attendance at the
meetings.
Meetings held for nominating members and alternates of subsequent
committees should be held no later than April 1 of each year or such
other date as the committee may recommend and the Secretary may
approve. Inasmuch as the term of office would begin June 1 of each
year, nomination meetings should be held in sufficient time to assure
that appointments may be made prior to the beginning of each new term
of office.
Nominations should be submitted in such manner and form as the
Secretary may prescribe. One nominee should be designated for each
position that is to be filled the following June 1. Sufficient
information about each nominee should be provided so the Secretary can
determine if such person is qualified for the position for which
nominated.
Only Walla Walla Sweet Onion producers should participate in
designating nominees for producer members and alternates. Only Walla
Walla Sweet Onion handlers would be entitled to vote for handler
members. If a person both produces and handles Walla Walla Sweet
Onions, such person may vote either as a producer or a handler, but not
both. Each eligible person should be allowed to cast only one vote in
the nomination process for each member and alternate member position
that is to be filled.
Provisions also should be made for the nomination and selection of
a public member and alternate. The record indicates that nominees for
the public member and alternate should be selected by the industry
members of the committee every three years at the first meeting
following the selection of the current committee. The names of the
nominees would then be forwarded to the Secretary for selection.
The order should provide that the members of the committee should
be selected by the Secretary from persons nominated or from among other
qualified persons, in accordance with proposed Sec. 956.23. In the
event nominations are not made within the time and in the manner
specified in the order, the Secretary may select members and alternates
without regard to nominations, in accordance with proposed Sec. 956.27.
Such selection should be from qualified persons as provided in the
order. Each person to be selected by the Secretary as a member or as an
alternate member of the committee should, prior to selection, qualify
by advising the Secretary that such person agrees to serve in the
position for which nominated.
Proposed Sec. 956.26 states that the order should provide a method
for promptly filling any vacancies on the committee for unexpired terms
of office. There may be vacancies caused by the death, removal,
resignation, or disqualification of a member or alternate. The order
should provide that the Secretary should name a successor to fill an
unexpired term from nominations made in the same manner as provided for
nominating all other members and alternates. Any nomination meetings
for filling vacancies should be held within a reasonable amount of time
after a vacancy occurs.
In order to avoid holding meetings and electing nominees when other
nominees acceptable to the Walla Walla Sweet Onion industry are before
the Secretary, the selection of members from nominees previously
submitted but not selected should be permitted. This would allow, for
example, the Secretary to appoint a person who received the second
highest number of votes at the last nomination meeting for the position
that has become vacant.
As set forth in proposed Sec. 956.28, the order should specify a
procedure for the committee to conduct its meetings. It should provide
that a majority of all members of the committee is necessary to
constitute a quorum and to pass any motion or approve any committee
action. However, any action made pursuant to proposed Sec. 956.61
pertaining to recommendations for regulations, would require seven
concurring votes. Accordingly, six members of the ten-member committee
must be present in order to constitute a quorum and enable the
committee to conduct a meeting. At least six affirmative votes should
be required to pass any motion or approve any committee action, except
when dealing with recommendations for regulations, which would require
at least seven. The evidence of record is that at least seven committee
members should be required to concur on any recommendations pertaining
to the imposition of container marking requirements because more is
needed to protect minority interests while at the same time allowing
majority rule. A simple majority would be sufficient for
recommendations on other activities authorized under the marketing
order, i.e., recommendations on production and marketing research and
marketing development and promotion projects, including paid
advertising, and the financing of these activities through handler
assessments and voluntary contributions.
There may be times when it will be impossible to assemble the
committee promptly to meet an emergency situation. Therefore, the order
also should enable committee members, and alternates when acting as
members, to vote by mail, telegraph, telephone, facsimile, or other
means of communication, provided that any vote cast orally be confirmed
promptly in writing. If an assembled meeting is held, all votes should
be cast in person, to ensure that the person voting on a motion or
committee action hears both sides of the question before taking such
action. The majority, quorum, and voting requirements should still
apply when voting by mail, telegraph, telephone, facsimile, or other
means of communication.
Committee members and alternates will necessarily incur some
expense while on committee business. Reasonable expenses, which may
include travel, meals and lodging, should be reimbursed to members
while attending committee meetings or performing other duties under the
order, in accordance with proposed Sec. 956.29. Therefore, the order
should provide that members, and alternates when serving as members of
the committee, should 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 the order. Testimony indicates that
it should be at the discretion of the committee to pay expenses of
alternate members who are requested to attend meetings regardless of
whether their respective members are present.
The committee, under proposed Sec. 956.30, should be given those
specific powers that are set forth in section 608c(7)(C) of the Act.
Such powers are granted by the enabling statutory authority and are
necessary for an administrative agency, such as the Walla Walla Sweet
Onion Committee, to carry out its proper functions. It would be
necessary for the committee to adopt rules and regulations, prescribe
the terms on which applications or information is to be filed, and to
set up procedural rules to administer this part. The committee also
should have the power to investigate complaints of violations to the
order and forward such information to the Secretary, and to recommend
to the Secretary appropriate amendments to this part.
The committee's duties as set forth in Sec. 956.31 of the proposed
order are necessary for the discharge of its responsibilities. These
duties are similar to those typically specified for administrative
agencies under other programs of this nature. They pertain to specific
activities authorized under the order, such as investigating and
compiling information regarding Walla Walla Sweet Onion marketing
conditions, and to the general operation of the order including hiring
employees, appointing officers, and keeping records of all committee
transactions. It is proposed that the marketing order delineate
committee duties as follows:
(1) At the beginning of each fiscal period, or as soon thereafter
as practicable, the committee should hold an organizational meeting at
which a chairman and such other officers as may be necessary would be
selected, any necessary subcommittees should be appointed, and such
rules and regulations for the conduct of business should be adopted as
may be advisable.
(2) The committee should act as intermediary between the Secretary
and producers and handlers of Walla Walla Sweet Onions.
(3) Any available information requested by the Secretary should be
furnished by the committee.
(4) The committee should appoint such employees, agents, and
representatives as it may deem necessary, and determine salaries,
benefits, and duties for each such persons.
(5) At such times as may be necessary, the committee should
investigate and assemble data on the growing, harvesting, shipping, and
marketing conditions of Walla Walla Sweet Onions. Furthermore, upon
approval of the Secretary, the committee should engage in research and
service activities that relate to the production, handling, or
marketing of Walla Walla Sweet Onions.
(6) The committee should keep minutes, books, and records which
clearly reflect all of its acts and transactions. These minutes, books,
and records would be subject to examination at any time by the
Secretary or an authorized agent or representative of the Secretary.
(7) The committee should ensure that its voting record on
recommended regulations and other matters are available to producers
and handlers.
(8) Prior to the beginning of each fiscal period, the committee
should submit to the Secretary a budget of its proposed expenses for
such fiscal period along with a recommendation for the assessment rate
for such period.
(9) The committee should have its books audited by a competent
independent accountant at least once each fiscal period, and at such
other times as the committee may find necessary or as the Secretary may
request. The audit report should show the receipt and expenditures of
funds collected pursuant to this part. A copy of this report should be
made available to the Secretary, as well as at the principal office of
the committee for inspection by handlers and producers. Confidential or
proprietary information should be removed from the audit report before
making it available to handlers and producers.
(10) The committee should have the duty of consulting, cooperating,
and exchanging information with other onion marketing committees, as
well as with other individuals or agencies in connection with all
proper committee activities and objectives under this subpart.
The duties listed in proposed Sec. 956.31 are reasonable and
necessary if the committee is to function in the manner prescribed
under the Act and the order. It should be recognized that the duties
specified are not necessarily all inclusive, and it may develop that
there are other duties that the committee may need to perform which are
incidental to, and not inconsistent with, these specified duties.
(c) The committee should be authorized under Sec. 956.40 of the
proposed order to incur such expenses as the Secretary finds are
reasonable and likely to be incurred during each fiscal year. Such a
provision is necessary to assure the maintenance and functioning of the
committee, as well as to finance production research and market
promotion programs. Necessary expenses would include, but would not be
limited to, such items as employee salaries and benefits; establishment
of an office and equipping such office; telephone and mail services;
and business-related transportation for the committee staff. Expenses
incurred by committee members in attending committee meetings should
also be a reimbursable expense. All such expenses may be incurred on an
ongoing basis.
The committee, under proposed Sec. 956.41, should be required to
prepare a budget showing estimates of income and expenditures necessary
for the administration of the marketing order during each fiscal year.
The budget, including an analysis of its component parts, should be
submitted to the Secretary sufficiently in advance of each fiscal
period to provide for the Secretary's review and approval. The
submitted budget should include a recommendation to the Secretary of a
rate of assessment designed to secure all or part of the income
required for such fiscal year. The committee should be permitted to use
reserve and other committee funds carried over from previous years, and
voluntary contributions, to meet budget requirements as authorized
under the order.
The Act authorizes the Secretary to approve the incurring of
expenses by the administrative agency established under an order and
states that the order must contain provisions requiring handlers to pay
their pro rata share of such expenses.
The rate of assessment should be established by the Secretary on
the basis of the committee's recommendation and other available
information in accordance with proposed Sec. 956.42. In the event that
an assessment rate is established which does not generate sufficient
income to pay for the approved expenses, the committee should be
authorized to recommend to the Secretary an increase in the rate of
assessment in order to secure sufficient funds. The Secretary may
approve an assessment rate increase, and such increase should be
applicable to all Walla Walla Sweet Onions handled during the fiscal
year to which that assessment rate applies.
The order should provide for the payment of assessments by first
handlers of Walla Walla Sweet Onions for the maintenance and
functioning of the committee throughout the time the order is in
effect, irrespective of whether particular provisions of the order are
suspended or are inoperative. For example, adverse weather during a
growing season could result in reduced supplies, and therefore, planned
market support activities for the season could be canceled. The
committee should be able to continue levying assessments to pay other
approved expenses incurred for other purposes.
If a handler does not pay any assessment by the date it is due, the
order should provide that the late assessment may be subject to a late
payment charge or an interest charge, or both, at rates set by the
committee with the Secretary's approval. Such charges should be set at
rates established to cover additional costs that may be incurred by the
committee in attempting to collect overdue assessments, and should
encourage timely payments. The period in which payments would be
considered late, and late payment charges or interest charges incurred
should be recommended by the committee and approved by the Secretary.
The committee should be authorized to accept advance payment of
assessments so that it may pay expenses which become due before
assessment income is normally received. This would give the committee
more flexibility in paying obligated expenses, particularly in the
first part of a fiscal year before assessment funds are received.
The committee should also be able to borrow money to meet
administrative expenses that would be incurred before assessment income
is sufficient to defray such expenses. However, the committee should
not borrow money to pay obligations if sufficient funds already exist
in the committee's reserve fund or in other committee accounts.
All funds collected by the committee through assessments or any
other provision of the order should be used only for the purposes set
forth in the order, as set forth in proposed Sec. 956.43. The Secretary
should at all times have authority to require the committee, its
members and alternates, and its employees and agents to account for all
receipts, disbursements, property or records of the committee for which
such person has been responsible. Likewise, when any such person ceases
to act in the aforesaid positions, that person should account for all
receipts, disbursements, property or records of the committee for which
such person has been responsible. In the event the order is terminated
or becomes inoperative, the committee should appoint, with the approval
of the Secretary, one or more trustees for holding records, funds or
other property of the committee.
If, at the end of a fiscal period, the assessments collected are in
excess of expenses incurred, such excess should be established as a
reserve or refunded pro rata to the handlers, under proposed
Sec. 956.44. The committee should be authorized to carry over excess
assessment income into the following fiscal period as a reserve. If
such excess income is not carried over as a reserve, handlers should be
entitled to a refund proportionate to the assessments each handler
paid. The reserve should not be allowed to exceed approximately two
years' of committee expenses.
One purpose of the reserve fund would be to provide stability in
the administration of the order in the case of a short crop. Also,
establishing a reserve should minimize the necessity of the committee
borrowing money at the beginning of a fiscal year or raising an
assessment rate during a season of less than anticipated production.
Finally, reserve funds could be used to cover necessary liquidation
expenses in the event the order is terminated. Upon such termination,
any funds not needed to defray liquidation expenses should be disposed
of as determined by the Secretary. To the extent possible, however,
these funds should be returned pro rata to the handlers from whom they
were collected.
Under proposed Sec. 956.45, for the payment of production research
or promotional activities as authorized by the order, the committee
should also be authorized to receive voluntary contributions. Testimony
also indicated that contributions should be authorized for first-year
administrative start-up costs. Such contributions should be received by
the committee without any obligations to the donor, and the expenditure
of such funds should be under the complete control of the committee and
subject to the provisions of the order. The committee should not
receive a voluntary contribution from any person if that contribution
could represent a conflict of interest. Testimony indicates that
donations should be considered as miscellaneous receipts, the same as
interest or dividend income, and be subject to all of the accounting
provisions of the order.
(d) Under proposed Sec. 956.50, the order should authorize the
committee to establish and 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. Funding for these programs
should come from any authorized receipts of the committee including
assessment income, voluntary contributions and miscellaneous income
such as interest.
The committee should have the authority to initiate new production
and marketing research projects, as well as to contribute to research
which may currently be taking place.
Testimony indicated that public funds for research are becoming
scarcer and more difficult to obtain. Marketing order proponents
believe that their industry needs to finance research on improved onion
storage and cultural practices.
The record also supports the need for marketing research and
promotion projects. Research would enable the Walla Walla Sweet Onion
industry to identify and analyze its current markets and find ways of
expanding current markets and developing new ones.
Expanding markets for Walla Walla Sweet Onions could be
accomplished by promotional activities, including paid advertising, to
acquaint wholesalers, retailers, and consumers with the product
available from the Walla Walla area.
Market development projects would enable the committee to compile
meaningful market data and to explore marketing possibilities, such as
how to gain entry to or recapture a specific market. That authority
also would enable the committee to contact buyers and food editors to
distribute educational material relating to the handling and marketing
of Walla Walla Sweet Onions, and disseminate to the industry the
results of current or past marketing research projects. It would also
allow the committee to give out promotional literature, recipes, and
information relative to consumption or use.
Record testimony indicated that the committee should be authorized
to develop and register a common identifying mark, or logo, that could
be used by all Walla Walla Sweet Onion producers and handlers to
distinguish the Walla Walla Sweet Onion in the marketplace. Proponents
supported utilizing such a mark in conjunction with any paid
advertising, to make the consumer aware that they are purchasing Walla
Walla Sweet Onions. Witnesses supported advertising as a means of
increasing demand for Walla Walla Sweet Onions.
Walla Walla Sweet Onions have a very limited marketing season (June
to early August) and prices customarily begin to decline rapidly over
the season. Proponents believe an education and advertising campaign
would help increase the public's awareness of this specialty onion with
the objective of expanding the market and increasing consumption of
Walla Walla Sweet Onions. Paid advertising with an identifying mark
would assist in clarifying and maintaining the Walla Walla Sweet
Onion's image in the marketplace in a way not available through other
forms of promotion or publicity. Also, Walla Walla Sweet Onion
producers face larger and better funded competition. Testimony
indicates that paid advertising is necessary for the industry to be
competitive and maintain or increase its market share. Testimony also
indicates that advertising could have a positive influence on the
demand for Walla Walla Sweet Onions, particularly in times of heavy
supply, thereby tending to increase grower returns.
Market promotion programs, including paid advertising, for Walla
Walla Sweet Onions carried out with funds collected under the proposed
program, would be generic in nature and would not use particular name
brands, handler or producer names, or favor any particular portion of
the production area. In addition, any promotional material or
advertising would not be authorized to make false or unwarranted claims
on behalf of Walla Walla Sweet Onions.
Nor would such material be authorized to include statements that
disparage other agricultural commodities.
The record does not indicate the amount of assessment funds that
may be allotted for research and promotion programs. The committee
should have the responsibility to determine the amount of funds spent
on each program each year. Such determination should be based on the
needs of the industry each year. The amount of funds to be spent on
research and promotion programs would be included in the annual budget
required to be submitted to the Secretary for review and approval.
All research and promotion projects to be conducted under the order
in a given fiscal period should be submitted by the committee to the
Secretary for approval prior to being undertaken. This will ensure that
all projects are appropriate given the order's authority, and that
sufficient funds will be available for their funding. Further, the
committee should be required to report at least annually on the
progress of each project and at the conclusion of each project. Such
reports should be made to the Secretary.
(e) In accordance with proposed Sec. 956.61, the committee should
have the authority to recommend regulations to the Secretary, whenever
it believes that regulations issued pursuant to proposed Sec. 956.62
regarding container markings would be appropriate. Also, the committee
should be authorized to recommend to the Secretary the amendment,
modification, termination, or suspension of any regulation issued under
this part, when deemed necessary. The committee should also be
permitted to recommend modification, termination, or suspension of any
regulation or amendment thereto to facilitate the handling of Walla
Walla Sweet Onions for special purpose handling pursuant to proposed
Sec. 956.63, regarding handling for specified purposes.
The committee should have the authority to recommend to the
Secretary rules and regulations for fixing the markings of the
containers used in the packaging and handling of Walla Walla Sweet
Onions. This could include a logo or other markings that would identify
the contents of such containers. Such a logo or other marking would be
small enough to be used in conjunction with the handler's own label, so
that handlers would not have to incur the cost of having existing
labels remade.
As set forth in proposed Sec. 956.63, there should be provision for
handling Walla Walla Sweet Onions in other than fresh market channels
differently than those for the fresh market. It would authorize the
Secretary, whenever it is found that it would tend to effectuate the
declared policy of the Act, to issue regulations, suspend or terminate
assessment requirements, container marking regulations, or any
combination thereof, to facilitate the handling of Walla Walla Sweet
Onions for other than fresh market uses. Such uses would be for relief
or charity, livestock feed, planting and/or plants, salad onions, and
all processing uses including canning, freezing, pickling, peeling,
dehydration, juicing, or other processing. In addition, shipments for
disposal, for packing and storing within the production area or to
specified areas outside the production area in Washington and Oregon,
or for other purposes which may be specified are included.
Requirements for special purpose shipments would be intended to
ensure that shipments of Walla Walla Sweet Onions for these uses would
not be diverted to the fresh market. Shipments for relief, charity, or
livestock feed would not compete with fresh market shipments in the
market place. Onion plants are too small to be used as a food product.
Salad onions, i.e., immature Walla Walla Sweet Onions of smaller sizes,
usually 1\1/2\ to 2 inches in diameter, would not normally be regulated
in the same way as fully mature, dry bulbs. Onions for canning and
freezing are exempt from regulation under the authority for this part,
and onions of such poor quality that they must be destroyed would not
be marketable in any case. Shipments for storage both within and in
specified locations outside of the production area would be handled as
special purpose shipments with suitable safeguards. Such safeguards
might be in the form of handler reports and would include such
information that the committee would deem adequate to ensure compliance
with program provisions. Other safeguards, unforeseen at this time,
might be needed to assure program compliance and prevent abuses. Hence,
the committee should be provided the flexibility to recommend, with
approval of the Secretary, other safeguards as needed.
There should be authority under proposed Sec. 956.64 to establish
minimum quantities of Walla Walla Sweet Onions that would not be
subject to regulation under this part. Testimony indicates that this
quantity should be recommended by the committee and approved by the
Secretary. Such quantities would not be subject to the requirements set
forth in Secs. 956.42, 956.62, and/or 956.63. Such quantities usually
are too small to affect the overall marketing of Walla Walla Sweet
Onions.
In accordance with proposed Sec. 956.65, the Secretary should
notify the committee of each regulation issued, and of each amendment,
modification, suspension, or termination thereof, and the committee
would give reasonable notice of such action to handlers subject to this
part. Such notification would be necessary for the efficient operation
of the marketing order.
The committee should be able to issue appropriate rules,
regulations, and safeguards in connection with shipments for specified
purposes and minimum quantity shipments. Such rules and regulations
should authorize the use of appropriate safeguards under proposed
Sec. 956.66.
The term ``certificate of privilege'' is intended to mean the
approval or permit necessary to make special purpose shipments.
Authority should be included for the committee to specify the
requirements contained in the certificate of privilege. Such
requirements, established through rulemaking, would be intended to
ensure that shipments would not be diverted to the fresh market.
Safeguards should be adequate so that the committee can track such
shipments from the time they leave the local shipping point to ultimate
destination. This would be necessary to determine that such shipments
did not enter fresh market channels of trade.
The committee should have the authority to rescind or deny
certificates of privilege or any other permit to any handler if proof
is obtained that such handler shipped Walla Walla Sweet Onions for any
other purpose than stated on the certificate of privilege. The
committee would rescind or deny certificates only after an appropriate
investigation concerning the alleged shipments and upon adequate and
substantial proof that the handler did in fact violate the regulation.
The Secretary would have the right to modify, change, or rescind any
safeguards prescribed and any certificates issued by the committee
pursuant to the provisions of this section.
The committee would report to the Secretary such information
concerning certificates of privilege as may be requested.
(f) The committee should have the authority, under proposed
Sec. 956.80, with the approval of the Secretary, to require that first
handlers submit to the committee such reports and information as the
committee may need to perform its functions and fulfill its
responsibilities under the order. In the normal course of business,
Walla Walla Sweet Onion handlers collect and record information that
may be needed by the committee. Witnesses expressed the belief that the
reporting requirements that may be imposed under the proposed order
would not constitute an undue burden on handler businesses since the
information is typically collected for other purposes.
Reports could be needed by the committee for such purposes as
collecting assessments; compiling statistical data for use in
evaluating marketing research and development projects; promotional
activities; making recommendations for production research; and
determining whether handlers are complying with order requirements. The
record evidence indicates that to the extent necessary for the
committee to perform its functions, handlers will likely need to
provide information on the quantity of Walla Walla Sweet Onions handled
each season. This required information may include, but would not
necessarily be limited to, the quantities of Walla Walla Sweet Onions
received by the handler and the quantities disposed of by such handler,
the date of each such receipt and disposition, and the identity of the
carrier transporting such onions. This should not be construed as a
complete list of information the committee might require, nor should it
be assumed that all of the above would necessarily be required of
handlers. There may be other reports or kinds of information that the
committee may find necessary for the proper conduct of its operations
under the order. Therefore, the committee should have the authority,
with the Secretary's approval, to require each handler to furnish such
information as it finds necessary to perform its duties under the
order.
Each handler should be required to maintain such records of Walla
Walla Sweet Onions received and disposed of as may be necessary to
verify the reports that the handlers submit to the committee. All such
records should be maintained for at least two fiscal periods after the
fiscal period in which the transactions occurred. The order should
provide that the Secretary and authorized employees of the committee
should have access to handlers' premises to examine those records
pertaining to matters within the purview of the order. This provision
would enable verification of compliance with requirements of the order.
All reports and records submitted for committee use by handlers
would be required to remain confidential and be disclosed to none other
than persons authorized by the Secretary, as required by the Act. Such
reports should become part of the committee and Secretary's records.
However, the committee should be authorized to release composite
information from any or all reports that do not reveal confidential
information. Such composite information could be helpful to the
committee and to the industry in planning operations under the order
and in promoting the order. Any release of composite information should
not disclose the identity of the persons furnishing the information or
any person's individual operation.
(g) No handler should be permitted to handle Walla Walla Sweet
Onions except in conformity with the provisions of this part, as set
forth in proposed Sec. 956.89. If the program is to be effective,
compliance with its requirements is essential, and no handler should be
permitted to evade any of its provisions. Any such evasion, on the part
of even one handler, could be demoralizing to those handlers who are in
compliance and would tend to impair the effective operation of the
program.
Witnesses testified that consumers are being deceived when they
purchase onions they believe to be Walla Walla Sweet Onions, but which
are actually onions produced outside the production area. Proponents
testified that the application of the Walla Walla name to onions not
grown in the production area is an unfair trade practice that destroys
the reputation of the Walla Walla Sweet Onion and causes harm to the
industry.
The Act provides that a marketing order can only apply to a defined
commodity grown in a specified production area. No authority exists for
regulating the handling of that commodity grown outside that production
area.
In accordance with proposed Sec. 956.85, the order should provide
that the Secretary conduct a periodic referendum every six years with
the initial referendum conducted within six years of the effective date
of the marketing order.
The Secretary of Agriculture has determined that continuance
referenda are an effective means for ascertaining whether producers
favor continuance of marketing order programs. The Act provides that
the Secretary shall terminate a marketing order whenever, through the
conduct of a referendum, it is indicated that a majority of all
producers favor termination and such majority produced more than 50
percent of the commodity for market during a representative period.
Since less than 50 percent of all producers usually participate in
a referendum, it is difficult to determine overall producer support or
opposition to termination of an order. Thus, to provide a basis for
determining whether producers favor continuance of the order, a
provision for continuance referenda should be included. Continuance
should be based upon the affirmative vote of either two-thirds of the
producers voting or an affirmative vote of the producers of two-thirds
of the volume of Walla Walla Sweet Onions represented in the
referendum.
The Act requires that in the promulgation or amendment of a
marketing order, at least two-thirds of the producers voting, by number
or volume represented in the referendum, must favor the issuance or
amendment of a marketing order. Continuance referenda should be based
on the same standard of industry support. This requirement is
considered adequate to measure producers' support to continue the
marketing order. The Secretary would consider termination of the order
if less than two-thirds of the producers voting in the referendum and
producers of less than two-thirds of the volume of Walla Walla Sweet
Onions represented in the referendum favor continuance. In evaluating
the merits of continuance versus termination, the Secretary should not
only consider the results of the referendum but also should consider
all other relevant information concerning the operation of the order
and the relative benefits and disadvantages to producers, handlers and
consumers in order to determine whether continued operation of the
order would tend to effectuate the declared policy of the Act.
In any event, section 608(C)(16)(B) of the Act requires the
Secretary to terminate the order whenever the Secretary finds that the
majority of all producers favor termination, and that such majority
produced more than 50 percent of the commodity for market.
The Secretary's ``Guidelines for Fruit, Vegetable, and Specialty
Crop Marketing Orders'' provide for periodic referenda to allow
producers the opportunity to indicate their support for or rejection of
a marketing order. It is the position of the Department that periodic
referenda ensure that marketing order programs continue to be
accountable to producers, obligate producers to evaluate their programs
periodically, and involve them more closely in their operation. The
record evidence supports these goals.
The provisions of proposed Secs. 956.87 through 956.99 of the order
as contained in the Notice of Hearing and hereinafter set forth, are
common to marketing agreements and orders now operating. All such
provisions are incidental to and not inconsistent with the Act and are
necessary to effectuate the other provisions of the marketing order and
marketing agreement and to effectuate the declared policy of the Act.
The record evidence supports inclusion of each such provision as
proposed in the Notice of Hearing. These provisions, which are
applicable to both the marketing agreement and the marketing order, are
identified by section number and heading as follows: Sec. 956.87
Proceedings after termination; Sec. 956.88 Effect of termination or
amendment; Sec. 956.90 Right of the Secretary; Sec. 956.91 Duration of
immunities; Sec. 956.92 Agents; Sec. 956.93 Derogation; Sec. 956.94
Personal liability; Sec. 956.95 Separability; and Sec. 956.96
Amendments. Those provisions applicable to the marketing agreement only
are: Sec. 956.97 Counterparts; Sec. 956.98 Additional parties; and
Sec. 956.99 Order with marketing agreement.
Miscellaneous changes have been made from the provisions as
proposed in the notice of hearing for the purpose of clarity.
List of Subjects in 7 CFR Part 956
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
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.
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.
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.
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. 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. 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.
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.
(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.
(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;
(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.
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.
(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 chairman 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;
(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.
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.
(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.
(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:
(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 periods'
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.
(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. 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.
(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.
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 complied with.
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;
(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.
(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.
(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.
(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.
(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.
(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:
(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.
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.
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 him 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.
Dated: November 3, 1994.
Kenneth C. Clayton,
Acting Administrator.
[FR Doc. 94-27759 Filed 11-4-94; 3:53 pm]
BILLING CODE 3410-02-P
