[Federal Register Volume 70, Number 76 (Thursday, April 21, 2005)]
[Rules and Regulations]
[Pages 20693-20695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8028]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 76 / Thursday, April 21, 2005 / Rules 
and Regulations  

[[Page 20693]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 955

[Docket No. FV04-955-1 FIR]


Vidalia Onions Grown in Georgia; Change in Assessment 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule changing the assessment 
collection requirements prescribed under the Vidalia onion marketing 
order (order). The order regulates the handling of Vidalia onions grown 
in Georgia and is administered locally by the Vidalia Onion Committee 
(Committee). This rule continues in effect the action that allows 
handlers to mail their assessment payments to the Committee office 
without incurring late payment penalties as long as the payment is 
postmarked on or before the due date. Prior to this change, assessment 
payments received in the Committee office later than 4 p.m. on the 
Tuesday following the week in which shipments were made were subject to 
late payment penalties.

DATES: Effective May 23, 2005.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
Southeast Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook Drive, 
Suite A, Winter Haven, FL 33884; Telephone: (863) 324-3375, Fax: (863) 
325-8793; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
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, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 955, both as amended (7 CFR part 955), 
regulating the handling of Vidalia onions grown in Georgia, 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.''
    USDA is issuing this rule in conformance with Executive Order 
12866.
    This 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 rule continues in effect the action that changed the 
assessment collection requirements prescribed under the order. This 
action allows handlers to mail their assessment payments to the 
Committee office without incurring late payment penalties as long as 
the payment is postmarked on or before the due date. Assessment 
payments are due not later than 4 p.m. on the Tuesday following the 
week in which the shipments were made. This change was unanimously 
recommended by the Committee at a meeting held on August 12, 2004.
    Section 955.42 of the order provides the authority for the 
formulation of an annual budget of expenses and the collection of 
assessments from handlers to administer the order. Section 955.42(f) 
provides the authority to impose a late payment charge or an interest 
charge or both, on any handler who fails to pay assessments in a timely 
manner and the authority to establish the time and rate of such 
charges. Section 955.142 of the order's rules and regulations outlines 
the procedures for applying interest charges to delinquent assessments. 
Both handler reports and assessment payments are to be submitted for 
each week during the fiscal period in which onions are shipped. Prior 
to this change, handler reports and assessment payments were due at the 
Committee office not later than 4 p.m. on the Tuesday immediately 
following the week in which shipments were made.
    This rule continues in effect the rulemaking action that modified 
the requirements under Sec.  955.142 to provide that as long as 
assessment payments received by mail are postmarked on or before the 
due date, the payments will be considered to be timely regardless of 
when they arrive at the Committee office. This change allows handlers 
the opportunity to mail their assessment payments without risking late 
payment penalties. This rule makes no change to the date and time 
handler reports and assessments are due.
    Many handlers have been submitting their weekly reports to the 
Committee via fax in order to have their reports in on time. Assessment 
checks are usually prepared at the same time and are hand carried to 
the Committee office or mailed. Checks mailed to the Committee office 
are often received several days after the date due. This has subjected 
handlers to an interest charge of one percent per week, beginning the 
day immediately after the date the assessments were due.
    The production area covered under the order encompasses all or 
parts of twenty counties in Georgia. It is not

[[Page 20694]]

always cost effective to drive the distance to the Committee office to 
hand deliver the assessment check to ensure it makes it there on time. 
Depending on their location in the production area, handlers can be 
more than 100 miles from the Committee office. Even if the handler is 
within 20 miles of the Committee office, considering the costs 
involved, using the mail still represents the most effective method of 
delivering assessment payments.
    In its discussions of this issue, the Committee agreed that 
handlers should have the option to pay their assessments on time by the 
use of mail. If a check is postmarked by the required date, the 
Committee believes that handler should be viewed as paying their 
assessments in a timely manner.
    Therefore, the Committee unanimously voted to change the assessment 
collection requirements so that assessments received that are 
postmarked on or before the date they are due will be considered as 
meeting the deadline and will not be subject to late payment charges.

Final 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 action 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 145 producers of Vidalia onions in the 
production area and approximately 110 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts less than $750,000, and small agricultural service 
firms, which include handlers, are defined as those whose annual 
receipts are less than $6,000,000.
    Based on information from the Georgia Agricultural Statistical 
Service and Committee data, around 90 percent of Vidalia onion handlers 
ship under $6,000,000 worth of onions on an annual basis. In addition, 
based on acreage, production, grower prices reported by the National 
Agricultural Statistics Service, and the total number of Vidalia onion 
growers, the average annual grower revenue is approximately $489,000. 
In view of the foregoing, it can be concluded that the majority of 
handlers and producers of Vidalia onions may be classified as small 
entities.
    This rule continues in effect the action that changed the 
assessment collection requirements previously prescribed under the 
order. This action allows handlers to mail their assessment payments to 
the Committee office without incurring late payment charges as long as 
the payment is postmarked on or before the due date. Assessment 
payments are due in the Committee office or are to be postmarked by the 
Tuesday following the week in which the shipments were made. This rule 
continues in effect the action that revised the provisions of Sec.  
955.142 of the rules and regulations outlining the procedures for 
applying interest charges to delinquent assessments. Authority for this 
action is provided for in Sec.  955.42 of the order. This change was 
unanimously recommended by the Committee at a meeting held on August 
12, 2004.
    This rule will not result in any additional costs for the handler 
or the grower. The purpose of this rule is to make it easier for the 
handler to submit their assessment payments using the mail without 
having to risk incurring additional costs and interest charges. For 
many handlers living a long distance from the Committee office, this 
will save them the time and costs associated with driving in to the 
Committee office in order to pay their assessments on a timely basis. 
Having better access to the mail for their payment method will provide 
many handlers with a more cost-effective option. Thus, it is expected 
that this option will result in an overall cost savings. The savings 
will be available to all handlers, regardless of size. Also, as the 
vast majority of handlers are also growers, this action will have a 
like benefit for both large and small growers.
    The Committee did consider the option of making no change in the 
current regulation. However, Committee members believe that handlers 
also should be able to mail their assessments in a timely manner. 
Therefore, this option was rejected.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large Vidalia onion handlers. 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. In addition, as 
noted in the initial regulatory flexibility analysis, USDA has not 
identified any relevant Federal rules that duplicate, overlap or 
conflict with this rule.
    Further, the Committee meeting was widely publicized throughout the 
Vidalia onion industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations. Like all 
Committee meetings, the August 12, 2004 meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue.
    An interim final rule concerning this action was published in the 
Federal Register on November 26, 2004. Copies of the rule were mailed 
by the Committee's staff to all Committee members and Vidalia onion 
handlers. In addition, the rule was made available through the Internet 
by USDA and the Office of the Federal Register. That rule provided for 
a 60-day comment period which ended January 25, 2005. One comment was 
received.
    The commenter stated that the Committee should be disbanded and 
that the marketing order is an outdated form of agricultural marketing. 
The commenter also stated that assessments were not equitably 
collected. USDA disagrees with these assertions. The marketing order 
was implemented and is being administered consistent with the authority 
in the Agricultural Marketing Agreement Act of 1937, and favored by 
Vidalia onion growers in a recent continuance referendum. Under the 
marketing order, all handlers are required to pay their pro rata share 
of expenses.
    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 material presented, including 
the Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (69 FR 68759, November 26, 2004) will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 955

    Onions, Marketing agreements, Reporting and recordkeeping 
requirements.

[[Page 20695]]

PART 955--VIDALIA ONIONS GROWN IN GEORGIA

0
Accordingly, the interim final rule amending 7 CFR part 955 which was 
published at 69 FR 68759 on November 26, 2004, is adopted as a final 
rule without change.

    Dated: April 15, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-8028 Filed 4-20-05; 8:45 am]
BILLING CODE 3410-02-P