[Federal Register: November 26, 2004 (Volume 69, Number 227)]
[Rules and Regulations]               
[Page 68759-68761]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no04-2]                         

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 955

[Docket No. FV04-955-1 IFR]

 
Vidalia Onions Grown in Georgia; Change in Assessment 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule changes the assessment collection requirements 
currently 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). 
Currently, assessment payments received in the Committee office later 
than 4 p.m. on the Tuesday following the week in which shipments are 
made are subject to late payment penalties. 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.

DATES: November 27, 2004; comments received by January 25, 2005 will be 
considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; E-mail: moab.docketclerk@usda.gov; or 
Internet: http://www.regulations.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: 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, Florida 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: Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 955, (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.''
    The Department of Agriculture (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 changes the assessment collection requirements currently 
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

[[Page 68760]]

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. 
Currently, handler reports and assessment payments are 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 modifies 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 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 discussion 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.

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 action 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 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 $5,000,000.
    Based on information from the Georgia Agricultural Statistical 
Service and Committee data, around 90 percent of Vidalia onion handlers 
ship under $5,000,000 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 changes the assessment collection requirements currently 
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 revises 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 into 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, 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.

[[Page 68761]]

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.
    This rule invites comments on a change to the assessment collection 
requirements currently prescribed under the Vidalia onion marketing 
order. Any comments received will be considered prior to finalization 
of this rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim final rule, as hereinafter set forth, will tend to 
effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) This action represents a relaxation in the regulations 
currently in effect; (2) the Committee unanimously recommended these 
changes at a public meeting and interested parties had an opportunity 
to provide input; and (3) this rule provides a 60-day comment period 
and any comments received will be considered prior to finalization of 
this rule.

List of Subjects in 7 CFR Part 955

    Onions, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 955 is amended as 
follows:

PART 955--VIDALIA ONIONS GROWN IN GEORGIA

0
1. The authority citation for 7 CFR part 955 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

0
2. Section 955.142 is amended by revising the second sentence to read 
as follows:


Sec.  955.142  Delinquent assessments.

    * * * Each such assessment shall be paid to the Committee not later 
than 4 p.m. on the Tuesday immediately following the week in which the 
shipments were made, or if the assessment is sent by mail, it must be 
postmarked on or before the Tuesday immediately following the week in 
which the shipments were made. * * *

    Dated: November 19, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-26122 Filed 11-24-04; 8:45 am]

BILLING CODE 3410-02-U