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Federal Register: August 22, 2001 (Volume 66, Number 163)
Proposed Rules
Page 44086-44089
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Proposed Rules
This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 982
[Docket No. FV01-982-3 PR]
Hazelnuts Grown in Oregon and Washington; Establishment of Reporting
Requirements for Imported Hazelnuts
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule would establish reporting requirements for hazelnuts
imported by handlers of hazelnuts grown in Oregon and Washington. The rule would
require handlers to report the receipt and disposition of hazelnuts grown
outside of the United States and was recommended by the Hazelnut Marketing Board
(Board), the agency responsible for local administration of the marketing order
regulating the handling of hazelnuts grown in Oregon and Washington. This rule
also announces the Agricultural Marketing Service's (AMS) intention to request a
revision to the currently approved information collection requirements issued
under the marketing order. This proposed reporting requirement would provide the
Board with more accurate information on the total supply of hazelnuts being
handled in Oregon and Washington. This would facilitate the Board's preparation
of its annual marketing policy and would help in its ability to track both
domestic and foreign product.
DATES: Comments must be received by October 22, 2001.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, PO Box
96456, room 2525-S, Washington, DC 20090-6456; Fax: (202) 720-8938; or E-mail: moab.docketclerk@usda.gov.
All comments should reference the docket number and the date and page number of
this issue of the Federal Register and will be made available for public
inspection in the Office of the Docket Clerk during regular business hours, or
can be viewed at: http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Marketing
Specialist, Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite
385, Portland, Oregon 97204; telephone: (503) 326-2724; Fax: (503) 326-7440; or
George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, PO Box 96456, room 2525-S, Washington, DC
20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with
this regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, PO Box 96456, room 2525-S,
Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-8938, or
E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing
Agreement No. 115 and Order No. 982 both as amended (7 CFR part 982), regulating
the handling of hazelnuts grown in Oregon and Washington, hereinafter referred
to as the ``order.'' The order is effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as
the ``Act.''
The Department of Agriculture (Department) is issuing this
rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive effect. This
proposal will not preempt any State or local laws, regulations, or policies,
unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be
exhausted before parties may file suit in court. Under section 608c(15)(A) of
the Act, any handler subject to an order may file with the Secretary a petition
stating that the order, any provision of the order, or any obligation imposed in
connection with the order is not in accordance with law and request a
modification of the order or to be exempted therefrom. A handler is afforded the
opportunity for a hearing on the petition. After the hearing the Secretary would
rule on the petition. The Act provides that the district court of the United
States in any district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review the Secretary's ruling
on the petition, provided an action is filed not later than 20 days after the
date of the entry of the ruling.
This rule would establish reporting requirements for
hazelnuts imported by handlers of hazelnuts grown in Oregon and Washington. The
rule would require handlers to report the receipt and disposition of hazelnuts
grown outside of the United States. The proposed reporting requirement would
provide the Board with more accurate information on the total supply of
hazelnuts being handled in Oregon and Washington.
At its November 14, 2000, meeting, the Board passed a general
recommendation to require handlers to report imported hazelnuts. After
developing procedures and a form necessary for implementation, the Board
submitted its recommendation to the Department in May 2001.
Sections 982.64 through 982.67 of the order currently
authorize the Board to require certain specific reports from handlers, including
creditable promotion and advertising reports, carryover reports, shipment
reports, and reports on the disposition of restricted hazelnuts. Section 982.68
of the order provides additional authority for the Board, with the approval of
the Secretary, to require such other reports as the Board may require to perform
its duties under the order.
The Board believes that more accurate information on the
total supply of hazelnuts moving in and out of Oregon and Washington--both
foreign and domestic product--would facilitate the administration of the order.
The Board would use this information to more efficiently track the receipt and
disposition of hazelnuts by handlers in Oregon and Washington. Furthermore, the
Board would use this information in its marketing policy deliberations each fall
when it reviews the crop estimate, handler carryover, and other factors to
determine whether volume regulation would be appropriate. In addition, the Board
is concerned that imported hazelnuts might be included in handler inventory
reports of Oregon and Washington hazelnuts.
In addition to the domestic crop, of which 100 percent is
produced in Oregon and Washington, hazelnuts are imported into the United States
from Canada and Turkey, and occasionally from Italy. Hazelnuts produced in
Oregon and Washington generally represent from 3 to 5 percent of the world crop.
According to USDA statistics, the majority of hazelnuts imported into the United
States are in kernel form, of which about 96 percent are from Turkey. A small
percentage of imports are inshell hazelnuts and generally are from British
Columbia, Canada, and enter the U.S. through Washington State. Although
information pertaining to the quantity of imported hazelnuts is currently
available, information specific to the receipt and disposition by Oregon and
Washington hazelnut handlers is lacking.
A major concern of the Board is the inshell hazelnuts
imported from Canada by Oregon and Washington handlers. As production in Canada
has increased, there has been an increase in Canadian hazelnuts imported into
Oregon and Washington. These hazelnuts are generally the same variety
(Barcelona) as are produced in Oregon and Washington. If these hazelnuts are
placed in the domestic inshell market without its knowledge, the Board's
marketing policy calculations could be inaccurate. The Board wants to collect
import hazelnut data to see how much is being imported and disposed of by
domestic handlers.
According to the National Agricultural Statistics Service,
the 10-year average annual production of hazelnuts grown in Oregon and
Washington is 29,800 inshell tons. Of that total, an average of 4,253 tons was
sold in the domestic market. Furthermore, according to the Foreign Agricultural
Service, imports during the same 10-year period averaged 316 tons. The five-year
average for imports is 534 tons, however, indicating the increase may well be
significant enough to impact the inshell domestic market.
The proposed report, F/H Form 1f, would be submitted to the
Board monthly when imported hazelnuts are received and shipped by the handler to
a buyer in the United States or exported inshell or shelled. The Board estimates
that these reports would only be submitted five times per year by each importing
handler. The report would include the quantity of such hazelnuts received,
country of origin, inspection certificate number, whether such hazelnuts were
inshell or kernels, the disposition outlet (domestic, export, inshell, or
shelled, etc.), and the shipment date of such hazelnuts.
The Board also recommended that, with each report, the
handler submit a copy of the inspection certificate issued by the Federal-State
Inspection Service (FSIS) for compliance purposes. The inspection certificate
would indicate the name of the person from whom the hazelnuts were received, the
date the hazelnuts were received by the handler, the number of tons and U.S.
Custom Service entry number, whether the product is inshell or shelled, the
quantity of hazelnuts, country of origin, the name of the FSIS inspector who
issued the certificate, and the date such certificate was issued. The Board
believes inspection certificates are necessary to verify handler receipt and
disposition reports for imported hazelnuts.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered
the economic impact of this rule on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the
scale of business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued pursuant
to the Act, and the rules issued thereunder, are unique in that they are brought
about through group action of essentially small entities acting on their own
behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 800 growers of hazelnuts in the
production area and approximately 24 handlers subject to regulation under the
order. Small agricultural growers are defined by the Small Business
Administration (SBA) (13 CFR 121.201) as those having annual receipts of less
than $500,000, and small agricultural service firms are defined as those whose
annual receipts are less than $5,000,000.
Based on the SBA definition, the Board estimates that 21 of
the 24 handlers and all of the growers are small entities. Board records show
that in the 1999-2000 marketing year approximately 9 percent of the handlers
shipped over 7,692,308 pounds of hazelnuts, and 91 percent of the handlers
shipped under 7,692,308 pounds of hazelnuts. Thus, based on an average price of
$0.65 per pound at the point of first sale, it can be concluded that the
majority of hazelnut handlers may be classified as small entities, excluding
receipts from other sources.
Board meetings are widely publicized in advance of the
meetings and are held in a location central to the production area. The meetings
are open to all industry members and other interested persons who are encouraged
to participate in the deliberations and voice their opinions on topics under
discussion. Thus, Board recommendations can be considered to represent the
interests of small business entities in the industry.
This rule would add a new Sec. 982.467 to the order's
administrative rules and regulations which would require handlers to report to
the Board the receipt and disposition of hazelnuts grown outside of the United
States. This would provide the Board with more accurate information on the total
available supply of hazelnuts--foreign and domestic product--and would help
facilitate program administration. Authority for requiring handlers to submit
this information to the Board is provided in Sec. 982.68 of the order.
Regarding the impact of the proposed action on affected
entities, this rule should impose minimal additional costs. The Board estimates
that about five handlers have imported hazelnuts over the past few years. Such
handlers would be required to submit an additional monthly report to the Board
when imported hazelnuts are received and shipped, along with inspection
certificates or other information required by the Board for verification
purposes. The Board estimates that each affected handler would submit about five
of these reports annually.
An alternative to the proposal would be to continue the
current practice of not collecting information from handlers on the receipt and
disposition of imported hazelnuts. However, as previously mentioned, the Board
believes it can better administer the order by obtaining more accurate
information on the total available supply of hazelnuts being received and
disposed of by Oregon and Washington handlers, including foreign and domestic
product. The only way this information can be obtained by the Board is to
directly collect it from handlers. This information would facilitate program
administration by improving the Board's base of information from which to make
decisions.
Another alternative the Board considered was whether it would
be useful to collect information on hazelnuts grown outside of Oregon and
Washington, but within the United States. However, Board members agreed that the
quantity of domestic hazelnuts grown outside the production area and handled by
regulated handlers is insignificant commercially, and, therefore, not needed.
If implemented, this proposed rule would impose and added
reporting and recordkeeping burden on handlers that receive hazelnuts from
outside of the United States. The Board has estimated that five handlers may
import hazelnuts during the marketing year. Such handlers would be required to
submit a receipt and disposition report (F/H Form 1f) to the Board monthly when
imported hazelnuts are received and shipped. The Board estimates that these
reports would be submitted about five times per year per handler, and would
require that each handler spend about five minutes to complete each report.
Thus, the annual burden associated with this information collection should total
no more than two hours for the industry. The information would be collected on
F/H Form 1f. That form is being submitted to the Office of Management and Budget
(OMB) for approval under OMB Control No. 0581-0178 in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. The Department has
identified one relevant Federal rule regarding requirements for hazelnuts grown
outside of the United States. Under section 608e of the Act, whenever certain
specified commodities are regulated under a Federal marketing order, imports of
that commodity must meet the same or comparable grade, size, quality, and
maturity requirements as those in effect for the domestic commodity. Hazelnuts
are included under section 608e of the Act. Thus, importers of hazelnuts are
required to have such hazelnuts inspected by the Federal-State inspection
service. Importers whose hazelnuts meet section 608e requirements do not have to
submit any paperwork to the USDA. However, importers whose hazelnuts fail
section 608e requirements, or whose hazelnuts are being sent to designated
outlets (animal feed, processing, or charity) have to submit paperwork to the
USDA. Only a small amount of information required by the USDA in these instances
or by the Board through this rule would be duplicative.
In addition, the Board's meeting was widely publicized
throughout the hazelnut industry and all interested persons were invited to
attend the meeting and participate in Board deliberations on all issues. Like
all Board meetings, the November 14, 2000, meeting was a public meeting and all
entities, both large and small, were able to express views on this issue.
Finally, interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable,
and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35), the AMS is seeking Office of Management and Budget (OMB)
approval for F/H Form 1f. This form will be used under the marketing order for
hazelnuts grown in Oregon and Washington. The collection requirements for the
hazelnut marketing order are included in the vegetable and specialty crops
information collection package.
Title: Vegetable and Specialty Crops.
OMB Number: 0581-0178.
Expiration Date of Approval: April 30, 2004.
Type of Request: Revision of a currently approved information
collection.
Abstract: The information collection requirements in this
request are essential to carry out the intent of the Act, to provide the
respondents the type of service they request, and to administer the
Oregon-Washington hazelnut marketing order program, which has been operating
since 1949. On November 14, 2000, the Board passed a general recommendation to
require handlers to report to the Board the receipt and disposition of hazelnuts
grown outside of the United States. After developing procedures and the form
needed for implementation, the Board submitted its recommendation in May 2001.
This information would be reported on F/H Form 1f. This notice concerns this
report, in addition to the accompanying regulation previously discussed
regarding requiring this report be submitted by handlers to the Board.
The Board would like to have better information on the total
supply of hazelnuts available which includes both foreign and Oregon-Washington
product. The Board would use this information in its marketing policy
deliberations each fall when it reviews the crop estimate, handler carryover,
and other factors to determine whether volume regulation would be appropriate.
In addition, the Board has some concerns that imported hazelnuts could be
included in handler inventory reports of Oregon-Washington hazelnuts. Accurate
information regarding the supply of hazelnuts is needed by the Board in its
administration of the order.
The information collected is used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable Programs
regional and headquarter's staff, and authorized employees of the Board.
Authorized Board employees and the industry are the primary users of the
information and AMS is the secondary user.
Estimate of Burden: Public reporting burden for this
collection of information is estimated to average 5 minutes per response.
Respondents: Oregon-Washington hazelnut handlers who receive
hazelnuts grown outside of the United States.
Estimated Number of Respondents: 5.
Estimated Number of Responses per Respondent: 5.
Estimated Total Annual Burden on Respondents: 2 hours.
Comments: Comments are invited on: (1) Whether the proposed
collection of information is necessary for the proper performance of the
functions of the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology and
assumptions used; (3) ways to enhance the quality, utility, and clarity of the
information to be collected; and (4) ways to minimize the burden of the
collection of information on those who are to respond, including the use of
appropriate automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology.
Comments should reference OMB No. 0581-NEW and the Marketing
Order for Hazelnuts grown in Oregon and Washington and be sent to the USDA in
care of the Docket Clerk at the address above. All comments received will be
available for public inspection during regular business hours at the same
address.
All responses to this notice will be summarized and included
in the request for OMB approval. All comments will also become a matter of
public record.
A 60-day comment period is provided to allow interested
persons to respond to this proposal.
List of Subjects in 7 CFR Part 982
Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting
and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 982 is
proposed to be amended as follows:
PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON
1. The authority citation for 7 CFR part 982 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
2. A new Sec. 982.467 is added to read as follows:
Sec. 982.467 Report of receipts and dispositions of hazelnuts grown
outside the United States.
Each handler who receives hazelnuts grown outside the United
States shall report to the Board monthly on F/H Form 1f the receipt and
disposition of such hazelnuts. All reports submitted shall include transactions
through the end of each month, or other reporting periods established by the
Board, and are due in the Board office on the tenth day following the end of the
reporting period. The report shall include the quantity of such hazelnuts
received, the country of origin for such hazelnuts, inspection certificate
number, whether such hazelnuts are inshell or kernels, the disposition outlet,
and shipment date of such hazelnuts. With each report, the handler shall submit
copies of the applicable inspection certificates.
Dated: August 16, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-21176 Filed 8-21-01; 8:45 am]
BILLING CODE 3410-02-P
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