uipl_2392a.pdf

ETA Advisory File Text

Attachment to UIPL No. 23-92U.S. Department of Labor Employment and Training Administration200 Constitution Avenue NWWashington D.C. 20210 UCFE Program Coverage Ruling No. 92-1 Agricultural Promotion Boards and Marketing Agreementand Order Administrative Committees Ruling Each of the below listed boards and committees is an instrumentality of the United States and services performed in the employ of all such boards and committees is Federal service within the meaning of 5 U.S.C. 8501 1 the National Dairy Promotion and Research Board 7 U.S.C. 4501-4513 7 CFR Part 1150 the Honey Board 7 U.S.C. 4601-4612 7 CFR Part 1240 the National Potato Promotion Board 7 U. S.C. 2611-2627 7 CFR Part 1207 the Cotton Board 7 U.S.C. 2101-2118 7 CFR Part 1205 the National Pork Board 7 U.S.C. 4801-4819 7 CFR Part 1250 the Cattlemen s Beef Promotion and Research Board 7 U.S.C. 2901-2911 7 CFR Part 1260 the Egg Board 7 U.S.C. 2701-2718 7 CFR Part 1250 and 44 marketing agreement and order admini strative committees see enclosed list established under 7 U.S.C. 601-674 7 CFR Parts 905-998 . Members of such boards and committees who are appointed by the Secretary of Agriculture are excluded from program coverage by 5 U.S.C. 8501 1 K . Prior Ruling A ruling on UCFE program coverage of marketing agreement and order administrative committees was issued on June 20 1957. This 1992 ruling supersedes the 1957 ruling and is now controlling for UCFE program coverage purposes of these agricultural promotion boards and marketing agreement and order administ rative committees. No subsequent amendments to title 7 of the United States Code have alter ed the nature or characteristics of these boards and committees upon which our ruling was based. Nor have there been any amendments to 5 U.S.C. 8501 1 which are relevant to the coverage of such boards and committees. The addition of Section 8509 by Section 1023 b of the Omnibus Reconciliation Act of 1980 P.L. 96-499 did not affect covera ge of the UCFE program. Statement of Facts In holding that employees of such committees perform Federal service I have relied on the following factors 1.The primary function of these committees is to act as agents for the Sec retary of Agriculture in carrying out the policy declared by Congress at 7 U.S.C. 602. 2.Such committees have the authority to appoint employees agents and rep resentatives and to determine the salaries and duties of such individuals. 3.The members of such committees as well as employees and agents are sub ject to removal by the Secretary of Agriculture. 4.Every act of such committees is subject to approval by the Secretary of Agriculture. 5.On November 29 1945 the Internal Revenue Service ruled that services performed in the employ of certain administrative committees established by the Secretary of Agriculture un der the Agricultural Marketing Agreement Act were exempt from the provisions of the Federal Unemploymen t Tax Act by reason of the exclusion from the definition of employment in 26 U.S.C. 1607 c now withou t relevant change Section 3306 c 6 of the Internal Revenue Code of 1986 . Also on October 15 1952 the Director of the Bureau of Employees Compensation now the Office of Workers Compensation Programs ruled that personnel of the Federal Milk Market Administrators are employees within the meaning of the Federal Employees Compensation Act. 6.Such committees are authorized to incur such expenses as the Secretary o f Agriculture finds reasonable. 7.The funds to cover the expenses of such committees are raised by assessments paid to the committees by the covered industries and enforceable by the Secretary of Agriculture in the District Courts of the United States. 8.The decision in United States v. Levine 129 F.2d 745 2d Cir. 1942 found that a Market Administrator established by order of the Secretary of Agriculture under the Agricultural Marketing Agreement Act was an agency of the United States. Further as recently as 1984 the Supreme Court cited wit h approval the Levine opinion finding that a Market Administrator was an agency of the United States Dixon v. United States 104 S.Ct. 1172 1179-1180 1984 . 9.The Internal Revenue Service affirmed in a letter from Jerry E. Holmes to Mary Ann Wyrsch dated November 26 1990 that there is no change in the positions taken in the above ci ted rulings. Discussion Analysis With regard to the promotion boards the purpose of these entities is to carry out coordinated programs of research and promotion designed to strengthen the competitiv e position of each covered commodity and to maintain and expand domestic and foreign markets for American producers of each such commodity e.g. 7 U.S.C. 2101 with respect to the Cotton Board . Although the purpose and author izing statutes of these entities are different from the marketing committees their manner of creation and method of op eration are nearly identical. As with the marketing committees the promotion boards are created by order of the S ecretary of Agriculture e.g. 7 U.S.C. 2104 and 2106 a with respect to the Cotton Board . Their members are selected by the Secretary of Agricultu re e.g. 7 U.S.C. 2106 b and are subject to removal by the Secretary e.g. 7 CFR 1205.323 . The boards have authority to appoint employees and to determine the salaries and duties of such indiv iduals e.g. 7 CFR 1205.328 b . The actions of these boards are subject to the approval of the Secretary of Agriculture e.g. 7 U.S.C. 2106 c . These boards are authorized to incur such expenses as the Secretary of Agriculture finds reasonable e.g. 7 CFR 1205.330 a . The funds to cover the expenses of these boards are raised by assessments paid to the boards by the covered industry and enforceable by the Secretary of Agriculture in the District Courts of th e United States e.g. 7 U.S.C. 2106 e and 2112 b 7 CFR 1205.515 d . In the Internal Revenue Service s letter of November 26 1990 reference d above the Department of Labor was informed that . . . it appears that an administrative committee established under the Agricultural Marketing Agreement Act of 1937 would qualify as a wholly owned instrumentality of the Unite d States Government under current law. Under section 3306 c 6 of the Internal Revenue Code o f 1986 . . . services performed in the employ of an instrumentality of the United States wholly or partially ow ned by the United States are excepted from the definition of employment for FUTA Federal Unemploymen t Tax Act purposes. If a committee is similar to the committee described in the 1945 ruling it a ppears that the committee would constitute a wholly or partially owned instrumentality of the United Sta tes under section 3306 c 6 . . . . An examination of the relevant Code of Federal Regulations provisions discl oses that organizations created under the Agricultural Marketing Agreement Act of 1937 are subject to th e same overriding authority of the Secretary of Agriculture. In addition to the factors enumerated in the 1 945 ruling we note the extensive control over the assets of the committees that the Secretary of Agricult ure may exercise under the applicable regulations. Therefore . . . it appears that service perform ed in the employ of such committees are excepted from employment as service performed in the employ of an in strumentality of the United States Government. Thus with regard to the conclusions in the 1945 ruli ng our conclusion with respect to entities similar to the entity described in the ruling would appear to b e that services for the entities would be excepted from employment by section 3306 c 6 of the Internal Reven ue Code as services performed for a wholly or partially owned instrumentality of the United States. The reasons stated above support the conclusion stated in the first paragraph of this ruling that employees h ired by the boards and committees as distinguished from members of all of the agricultural boards and commi ttees referred to herein are covered by the UCFE program. The employing agency may not participate in the UCF E program for the board and committee members due to the exclusion at 5 U.S.C. 8501 1 K . This coverage ruling is issued pursuant to redelegation of authority from the Assistant Secretary of Labor in Empl oyment and Training Order No. 2- 92 dated March 20 1992 which is authorized by Section 6 of Secretary s Order No. 4-75 40 Fed.Reg. 18515 as amended by Secretary s Order No. 14-75 . MARY ANN WYRSCH DATE March 24 1992 Director Unemployment Insurance Service List of 44 Agricultural Marketing Agreement and Order Administrative Committees As of March 1 1991 7 U.S.C. Parts 905-998 905Citrus Administrative Committee - Florida 906Texas Valley Citrus Committee 907Navel Orange Administrative Committee - California Arizona 908Valencia Orange Administrative Committee - California and Arizona 910Lemon Administrative Committee - California and Arizona 911Florida Lime Administrative 915Florida Avocado Administrative Committee 916Nectarine Administrative Committee - California 917Control Committee - California Pear Commodity Committee Plum Commodity Committee Peach Commodity Committee 918Georgia Peach Industry Committee 919Colorado Peach Administrative Committee 920Kiwifruit Administrative Committee - California 921Washington Fresh Peach Marketing Committee 922Washington Apricot Marketing Committee 923Washington Cherry Marketing Committee 924Washington-Oregon Fresh Prune Marketing Committee 925California Desert Grape Administrative Committee 926Tokay Grape Industry Committee - California 927Winter Pear Control Committee - Oregon Washington and California 928Papaya Administrative Committee - Hawaii 929Cranberry Marketing Committee - Massachusetts Rhode Island Connecticut New Jersey Wisconsin Michigan Oregon Minnesota Washington and Long Island New York 931Northwest Fresh Bartlett Marketing Committee - Oregon and Washington 932California Olive Committee 945Idaho Eastern Oregon Potato Committee 946State of Washington Potato Committee 947Oregon-California Potato Committee 948Colorado Potato Administrative Committee 950Maine Potato Committee currently inactive 953Southeastern Potato Committee - Virginia and North Carolina 955Vidalia Onion Committee - Georgia 958Idaho-Eastern Oregon Onion Committee 959South Texas Onion Committee 965Texas Valley Tomato Committee 966Florida Tomato Committee 967Florida Celery Committee 971South Texas Lettuce Committee 979South Texas Melon Committee 981Almond Board of California 982Filbert Hazelnut Marketing Board - Oregon and Washington 984Walnut Marketing Board - California 985Far West Spearmint Oil Administrative Committee 987California Date Administrative Committee 989Raisin Administrative Committee - California 993Prune Marketing Committee California 998Peanut Administrative Committee - Georgia