[Federal Register: February 6, 2002 (Volume 67, Number 25)]
[Rules and Regulations]
[Page 5442-5445]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe02-4]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 982
[Docket No. FV01-982-3 FR]
Hazelnuts Grown in Oregon and Washington; Establishment of
Reporting Requirements for Imported Hazelnuts
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes reporting requirements for hazelnuts
imported by handlers of hazelnuts grown in Oregon and Washington. It
requires handlers to report the receipt and disposition of hazelnuts
grown outside of the United States. This rule 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. Requiring handlers to report
the receipt and disposition of imported hazelnuts will provide the
Board with more
[[Page 5443]]
accurate information on the total supply of hazelnuts being handled in
Oregon and Washington. This information will facilitate the Board's
preparation of its annual marketing policy and will help in its ability
to track both domestic and foreign product.
EFFECTIVE DATE: February 7, 2002.
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, P.O. 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, P.O. 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 final rule 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 (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA 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 USDA 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 USDA'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 final rule establishes reporting requirements for hazelnuts
imported by handlers of hazelnuts grown in Oregon and Washington. The
rule requires handlers to report the receipt and disposition of
hazelnuts grown outside of the United States. Requiring handlers to
report the receipt and disposition of imported hazelnuts will 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 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 USDA, 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--will facilitate the administration of the
order. The Board will use this information to more efficiently track
the receipt and disposition of hazelnuts by handlers in Oregon and
Washington. Furthermore, the Board will 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 has long been available, information
specific to the receipt and disposition by Oregon and Washington
hazelnut handlers prior to this final rule was lacking.
A major concern of the Board has been 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. This rule will enable the Board 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 that the increase may well be significant enough to
impact the inshell domestic market.
The report, F/H Form 1f, will 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 will be submitted about five times per
year by each importing handler. The report will 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 will indicate the
[[Page 5444]]
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.
Final Regulatory Flexibility Analysis and Paperwork Reduction Act
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 final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and 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 19 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 $750,000, 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 the majority
of the 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.
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 adds a new Sec. 982.467 to the order's administrative
rules and regulations which requires handlers to report to the Board
the receipt and disposition of hazelnuts grown outside of the United
States. This report will provide the Board with more accurate
information on the total available supply of hazelnuts--foreign and
domestic product--and will 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 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 will 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
will submit about five of these reports annually.
An alternative to this action would have been to continue the
practice of not collecting information from handlers on the receipt and
disposition of imported hazelnuts. However, as previously mentioned,
the Board believes it will be able to 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 will 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.
This action imposes some additional reporting and recordkeeping
burden on handlers that receive hazelnuts from outside of the United
States. As stated earlier, the Board has estimated that five handlers
may import hazelnuts during the marketing year. Such handlers will 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 will be submitted about five times
per year per handler, and will 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 will be collected on F/H
Form 1f. The form has been approved by the Office of Management and
Budget (OMB) 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 USDA 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 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 USDA. Only a small amount of information required by USDA
in these instances or by the Board through this rule will 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.
A proposed rule concerning this action was published in the Federal
Register on August 22, 2001 (66 FR 44086). Copies of the rule were
mailed to all Board members. The rule was also
[[Page 5445]]
made available through the Internet by the Office of the Federal
Register and USDA. A 60-day comment period ending October 22, 2001, was
provided to allow interested persons to respond to the proposal. No
comments were received.
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.
After consideration of all relevant matter presented, including the
information and recommendation submitted by the Board and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because: (1) Handlers are already
shipping hazelnuts from the 2001-2002 crop; (2) the Board would like to
begin receiving this report as soon as possible to have better
information on the total supply of hazelnuts within Oregon and
Washington; (3) handlers are aware of this rule which was recommended
at a public meeting; and (4) a 60-day comment period was provided in
the proposed rule; no comments were received.
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
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: January 31, 2002.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-2848 Filed 2-5-02; 8:45 am]
BILLING CODE 3410-02-P
This archive was generated by hypermail 2b29 : 2002/02/06 EST