[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
Federal Register
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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