[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Rules and Regulations]
[Pages 27624-27632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12746]
[[Page 27623]]
_______________________________________________________________________
Part IV
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 956
Sweet Onions Grown in Washington and Oregon; Final Rule
Federal Register / Vol. 60, No. 100 / Wednesday, May 24, 1995 / Rules
and Regulations
[[Page 27624]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 956
[Docket No. 94AMA-FV-956-1; FV93-956-1FR]
Sweet Onions Grown in the Walla Walla Valley of Southeast
Washington and Northeast Oregon; Order Regulating Handling
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule establishes a Federal marketing agreement and
order which regulates the handling of Walla Walla Sweet Onions grown in
the Walla Walla Valley of Southeast Washington and Northeast Oregon.
The order was favored by the required two-thirds majority of producers
voting in a referendum and the marketing agreement was executed by the
required number of handlers, that is, handlers who collectively handled
more than 50 percent of all onions handled during the representative
period. The marketing agreement and order authorize production and
marketing research and marketing development and promotion projects,
including paid advertising, and authorize container markings. The
objective of the order is to improve producer returns by strengthening
consumer demand through various promotional activities and by reducing
production and marketing costs through production and marketing
research. Agreement and order activities will be financed by
assessments levied on Walla Walla Sweet Onion handlers. The order was
considered at a public hearing in November 1993. The referendum was
conducted by the Department of Agriculture by mail ballot April 7-14,
1995.
EFFECTIVE DATE: May 19, 1995.
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; published October 29, 1993
(58 FR 58105);
Notice of Recommended Decision--Issued November 3, 1994; published
November 10, 1994 (59 FR 56254);
Secretary's Decision--Issued March 30, 1995; published April 5, 1995
(60 FR 17274).
Preliminary Statement
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.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This action is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
action.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary of
Agriculture (Secretary) a petition stating that the order, any
provision of the order, or any obligation imposed in connection with
the order is not in accordance with law and request a modification of
the order or to be exempted therefrom. A handler is afforded the
opportunity for a hearing on the petition. After the hearing the
Secretary would rule on the petition. The Act provides that the
district court of the United States in any district in which the
handler is an inhabitant, or has his or her principal place of
business, has jurisdiction in equity to review the Secretary's ruling
on the petition, provided a bill in equity is filed not later than 20
days after the date of the entry of the ruling.
The marketing agreement and order were formulated on the record of
a public hearing held at Walla Walla, Washington, November 15, 1993.
Notice of the hearing was published in the October 26, 1993, issue of
the Federal Register (58 FR 58105). The notice set forth a proposed
order submitted by the Walla Walla Sweet Onion Grower's Association on
behalf of Walla Walla Sweet Onion producers in the production area.
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the Act, and the applicable rules of
practice and procedure governing the formulation of marketing
agreements and marketing orders (7 CFR part 900).
Approximately 25 witnesses, including Walla Walla Sweet Onion
producers, handlers, and a Washington State University researcher,
testified in support of the order. Proponents emphasized that Walla
Walla Sweet Onion producers need a Federal marketing order to
effectively compete with other sweet onion producing areas. No one
present at the hearing testified in opposition to the proposed order.
At the close of the hearing, January 15, 1994, was established as the
date by which briefs, statements, and proposed corrections to the
transcript were due. No briefs were received.
The proponents testified that Walla Walla Sweet Onion producers, in
order to remain competitive with other sweet onion producing areas,
must conduct research and promotion programs to reduce production and
marketing costs and increase sales. Such programs should include
production and marketing research projects and promotion projects,
including paid advertising.
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 production area in Walla Walla
County, Washington, and Umatilla County, Oregon, and individual
producers and handlers cannot implement an effective research,
marketing development, and promotion program. By contrast, most other
onion growing areas in the United States are large enough to convince
private entities, such as seed companies, to conduct production
research and developmental efforts with the result being new varieties
specifically suited to those areas. Proponents believe that an
industry-wide program is therefore necessary to enable the pooling of
resources to address common problems. A single producer or even two or
three producers cannot marshal the resources necessary to conduct
effective research, marketing, and promotion programs including paid
advertising.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Acting Assistant Secretary, Marketing and Regulatory
Programs, on March 30, 1995, filed with the Hearing Clerk, U.S.
Department of Agriculture, a Final Decision and Referendum Order,
directing that a referendum be conducted during the period April 7-14,
1995, among producers of Walla Walla Sweet Onions to determine whether
they favored issuance of the proposed marketing order. In the
referendum, the [[Page 27625]] marketing order was favored by more than
two-thirds of the producers voting in the referendum and also by
producers of more than two-thirds of the production represented in the
referendum. The marketing agreement was signed by handlers who, during
the representative period, handled more than 50 percent of the volume
of Walla Walla Sweet Onions handled during the representative period.
The referendum results and handler sign-up met the statutory
requirements on producer and handler approval necessary to issue the
marketing order and agreement.
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
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 are defined 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 will be regulated under this order 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 will provide
a means for these small entities to pool their resources and work
together to solve their common problems. Witnesses testified that such
action is necessary for this relatively small industry to remain
profitable in the face of intense competition from larger production
areas.
Acreage and supplies of Walla Walla Sweet Onions have declined in
recent years, and proponents believe that the order will provide a much
needed means of halting a drop in grower returns experienced in past
seasons. This will be achieved by strengthening demand, developing new
markets for existing supplies and encouraging increased production.
Also, costs could be reduced through production research. Thus, the
order is expected to have a positive impact on producer returns.
The order authorizes the collection of assessments from handlers of
Walla Walla Sweet Onions grown in designated parts of Walla Walla
County, Washington, and Umatilla County, Oregon. Assessment funds will
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 will 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 will be carried out by a
staff hired by the committee. The order will not regulate the
production of Walla Walla Sweet Onions and places no restriction on the
quality or quantities of Walla Walla Sweet Onions that could be
handled.
The principal requirements of the order that affect handlers are
the requirements that they pay assessments on fresh market shipments of
Walla Walla Sweet Onions to fund research and promotion programs and
that container markings could be regulated. The amount of the
assessment rate is not specified in the 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
will be recommended by the committee to the Secretary for approval.
The order also imposes some reporting and recordkeeping
requirements on handlers. Handler testimony indicated that the expected
burden imposed with respect to these requirements will be negligible.
Most of the information that will be reported to the committee is
already compiled by handlers for other uses and is readily available.
In compliance with Office of Management and Budget (OMB) regulations (5
CFR part 1320) which implement the Paperwork Reduction Act of 1980 (44
U.S.C. Chapter 35) and section 3504(h) of that Act, the information
collection and recordkeeping requirements that may be imposed by this
order have been approved by OMB and assigned OMB Number 0581-0172. Any
requirements imposed will be evaluated against the potential benefits
to be derived and it is expected that any added burden resulting from
increased recordkeeping will not be significant when compared to those
anticipated benefits.
Reporting and recordkeeping requirements issued under comparable
marketing order programs impose an average annual burden on each
regulated handler of about one hour and a two year record retention
requirement. It is reasonable to expect that a comparable burden may be
imposed under this order on the estimated nine handlers of Walla Walla
Sweet Onions.
In determining that the order will 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 will 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 will not have a
significant economic impact on a substantial number of small handlers
or producers.
Findings and Determinations
(a) Findings upon the basis of the hearing record. Pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601 et seq.) and the applicable rules of practice and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR [[Page 27626]] Part 900), a public hearing was
held upon a proposed marketing agreement and a proposed order,
regulating the handling of Sweet Onions grown in the Walla Walla Valley
of Southeastern Washington and Northeastern Oregon.
Upon the basis of the evidence introduced at the hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The marketing agreement and order regulates the handling of
sweet onions grown in the production area in the same manner as, and is
applicable only, to persons in the respective classes of commercial and
industrial activity specified in, the marketing agreement and order
upon which a hearing has been held;
(3) The marketing agreement and order is limited in its application
to the smallest regional production area which is practicable,
consistent with carrying out the declared policy of the Act, and the
issuance of several orders applicable to subdivisions of the production
area will not effectively carry out the declared policy of the Act;
(4) There are no differences in the production and marketing of
sweet onions grown in the production area which make necessary
different terms and provisions applicable to different parts of such
area; and
(5) All handling of sweet onions grown in the production area is in
the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make this order effective not later than May 19, 1995.
A later effective date would unnecessarily delay the implementation
of the agreement and order and the collection of handler assessments
necessary to fund day-to-day program expenses and authorized research
and promotion activities. The harvesting and marketing of the 1995
Walla Walla Sweet Onion crop is expected to begin in mid-June. Hence,
Department and industry implementation activities must begin promptly.
These activities include, but are not limited to, industry meetings to
nominate the members and alternate members of the administrative
committee to locally administer the marketing order, the selection of
that Committee by the Secretary of Agriculture, and following that
holding Committee meetings to select a management team, draft Committee
operating guidelines, consider a budget and assessment rate for the
1995 fiscal period, and make other recommendations consistent with
order authority. Some of the Committee recommendations will require
rulemaking by the Department to be implemented.
In view of the foregoing, it is hereby found and determined that
good cause exists for making this order effective May 19, 1995, and
that it would be contrary to the public interest to delay the effective
date of this order for 30 days after its publication in the Federal
Register (Sec. 553(d), Administrative Procedure Act; 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) The ``Marketing Agreement Regulating the Handling of Sweet
Onions Grown in the Walla Walla Valley of Southeastern Washington and
Northeastern Oregon.'' upon which the aforesaid public hearing was held
has been signed by handlers (excluding cooperative associations of
producers who are not engaged in processing, distributing, or shipping
sweet onions covered by the order) who during the period January 1
through December 31, 1994, handled not less than 50 percent of the
volume of such sweet onions covered by this order, and
(2) The issuance of this order is favored or approved by at least
two-thirds of the producers who participated in a referendum on the
question of its approval and who, during the period January 1 through
December 31, 1994 (which has been deemed to be a representative
period), have been engaged within the Walla Walla Sweet Onion
production area in the production of Walla Walla Sweet Onions for
market, such producers having also produced for market at least two-
thirds of the volume of such commodity represented in the referendum.
List of Subjects in 7 CFR Part 958
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
Order Relative to Handling of Sweet Onions Grown in the Walla Walla
Valley of Southeast Washington and Northeast Oregon
It is therefore ordered, that on and after the effective date
hereof, all handling of sweet onions grown in the Walla Walla Valley of
Southeast Washington and Northeast Oregon, shall be in conformity to,
and in compliance with, the terms and conditions of the said order, as
follows:
The provisions of the marketing order include Secs. 956.1 through
956.96. The marketing agreement includes the provisions of the order
and three additional provisions, Sec. 956.97 Counterparts, Sec. 956.98
Additional parties, and Sec. 956.99 Order with marketing agreement.
These provisions are not published herein as part of the order.
The provisions of the marketing order are set forth in full herein.
Title 7, Chapter IX is 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 Qualification 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. [[Page 27627]]
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.
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. [[Page 27628]]
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 [[Page 27629]]
(d) To recommend to the Secretary amendments to this part.
Sec. 956.31 Duties.
It shall be among the duties of the committee:
(a) At the beginning of each fiscal period, or as soon thereafter
as practicable, to meet and organize, to select a chairperson and such
other officers as may be necessary, to select subcommittees, and to
adopt such rules and regulations for the conduct of its business as it
may deem advisable;
(b) To act as intermediary between the Secretary and any producer
or handler;
(c) To furnish to the Secretary such available information as the
Secretary may request;
(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: [[Page 27630]]
(a) The committee, with approval of the Secretary, may establish an
operating reserve and may carry over to subsequent fiscal periods
excess funds in a reserve so established, except funds in the reserve
shall not exceed the equivalent of approximately two fiscal period's
budgeted expenses. Such reserve funds may be used:
(1) To defray any expenses authorized under this part;
(2) To defray expenses during any fiscal period prior to the time
assessment income is sufficient to cover such expenses;
(3) To cover deficits incurred during any fiscal period when
assessment income is less than expenses;
(4) To defray expenses incurred during any period when any or all
provisions of this part are suspended or are inoperative; and
(5) To cover necessary expenses of liquidation in the event of
termination of this part.
(b) Upon termination of this part, any funds not required to defray
the necessary expenses of liquidation shall be disposed of in such
manner as the Secretary may determine to be appropriate except that to
the extent practicable, such funds shall be returned pro rata to the
persons from whom such funds were collected.
(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 in compliance with the
rules and regulations.
Sec. 956.63 Handling for specified purposes.
Upon the basis of recommendations and information submitted by the
committee, or other available information, the Secretary may issue
special regulations, or modify, suspend, or terminate requirements in
effect pursuant to Secs. 956.42 and 956.62 or any combination thereof,
in order to facilitate the handling of onions for the following
purposes:
(a) Shipments of Walla Walla Sweet Onions for relief or to
charitable institutions;
(b) Shipments of Walla Walla Sweet Onions for livestock feed;
(c) Shipments of Walla Walla Sweet Onions for planting and for
plants;
(d) Shipments of Walla Walla Sweet Onions as salad onions;
(e) Shipments of Walla Walla Sweet Onions for all processing uses
including, pickling, peeling, dehydration, juicing, or other
processing;
(f) Shipments of Walla Walla Sweet Onions for disposal;
(g) Shipments of Walla Walla Sweet Onions for seed;
(h) Shipments of Walla Walla Sweet Onions for packing or storing
within the production area or outside the production area, but within
specified [[Page 27631]] 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 [[Page 27632]] 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.
Dated: May 19, 1995.
David R. Shipman,
Acting Deputy, Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-12746 Filed 5-23-95; 8:45 am]
BILLING CODE 3410-02-P
