Olives Grown in California; Amendments to the Marketing Order No. 932
| Published date | 29 June 2020 |
| Citation | 85 FR 38760 |
| Record Number | 2020-12884 |
| Section | Rules and Regulations |
| Court | Agricultural Marketing Service |
Federal Register, Volume 85 Issue 125 (Monday, June 29, 2020)
[Federal Register Volume 85, Number 125 (Monday, June 29, 2020)]
[Rules and Regulations]
[Pages 38760-38763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12884]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[Doc. No. AMS-SC-19-0081; SC-19-932-2 FR]
Olives Grown in California; Amendments to the Marketing Order No.
932
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends Marketing Order No. 932, which
regulates the handling of olives grown in California. The amendment,
which was proposed by the California Olive Committee (Committee), was
approved by producers in a referendum. This action revises the
marketing order's quorum requirement and makes a clarifying change
stating that alternate members acting as members to form a quorum would
also be eligible to cast votes.
DATES: This rule is effective July 29, 2020.
FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing
Specialist, Marketing Order and Agreement Division, Specialty Crops
Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington,
DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or
Email: [email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
amends regulations issued to carry out a marketing order as defined in
7 CFR 900.2(j). This rule is issued under Marketing Order No. 932, as
amended (7 CFR part 932), regulating the handling of olives grown in
California. Part 932 (referred to as 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.'' Section 608c(17) of
the Act and the applicable rules of practice and procedure governing
the formulation of marketing agreements and orders (7 CFR part 900)
authorize amendment of the Order through this informal rulemaking
action.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Orders 13563 and 13175. This action falls
within a category of regulatory actions that the Office of Management
and Budget (OMB) exempted from Executive Order 12866 review.
Additionally, because this final rule does not meet the definition of a
significant regulatory action, it does not trigger the requirements
contained in Executive Order 13771. See OMB's Memorandum titled
``Interim Guidance Implementing Section 2 of the Executive Order of
January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs' '' (February 2, 2017).
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 8c(15)(A) of the
Act (7 U.S.C. 608c(15)(A)), 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 the 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
[[Page 38761]]
no later than 20 days after the date of entry of the ruling.
Section 1504 of the Food, Conservation, and Energy Act of 2008
(2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act (7
U.S.C. 608c(17)), which in turn required the addition of supplemental
rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The
amendment of section 8c(17) of the Act and additional supplemental
rules of practice authorize the use of informal rulemaking (5 U.S.C.
553) to amend Federal fruit, vegetable, and nut marketing agreements
and orders. USDA may use informal rulemaking to amend marketing orders
based on the nature and complexity of the proposed amendments, the
potential regulatory and economic impacts on affected entities, and any
other relevant matters.
The Agricultural Marketing Service (AMS) considered these factors
and has determined that amending the Order as proposed could
appropriately be accomplished through informal rulemaking.
The proposed amendment was unanimously recommended by the Committee
following deliberations at a public meeting held on July 29, 2019. A
proposed rule soliciting comments on the amendment was issued on
November 1, 2019, and published in the Federal Register on November 6,
2019 (84 FR 59736). No comments were received. As a result, no changes
to the proposed rule were made. A ``proposed rule and referendum
order'' was then issued on February 21, 2020, and published in the
Federal Register on February 27, 2020 (85 FR 11312). This document
directed that a referendum among California olive producers be
conducted March 9, 2020, through March 20, 2020, to determine whether
they favored the proposal. To become effective, the amendment had to be
approved by two-thirds of producers voting or by those producers voting
in the referendum who represented at least two-thirds of the volume of
California olives.
The amendment was favored by 86 percent of the producers voting and
by 96 percent of the volume represented in the referendum; both
calculations exceed the two-thirds requirement.
The amendment in this final rule changes the Committee's quorum
requirements. The amendment also makes a clarifying change that
alternate members acting as members to form a quorum would also be
eligible to cast votes.
Final Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601-612), 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
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 900 producers of olives in the production
area and two handlers subject to regulation under the Order. The Small
Business Administration (SBA) defines small agricultural producers as
those having annual receipts of less than $1,000,000, and small
agricultural service firms as those whose annual receipts are less than
$30,000,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS)
data, as of June 2019 the average price to producers for the 2018 crop
year was $766.00 per ton, and total assessable volume for the 2018 crop
year was 17,953 tons. Based on production, the total number of
California olive producers, and price paid to those producers, the
average annual producer revenue is less than $1,000,000 ($766.00 times
17,953 tons equals $13,751,998 divided by 900 producers equals an
average annual producer revenue of $15,280.00). Therefore, most olive
producers may be classified as small entities. Both handlers may be
classified as large entities under the SBA's definitions because their
annual receipts are greater than $30,000,000.
The amendment, which was unanimously recommended by the Committee
at a public meeting on July 29, 2019, will change the Committee's
quorum requirement. A clarifying change stating that alternate members
acting as members to form a quorum would be eligible to cast votes will
also be made.
This amendment will have no direct economic effect on producers or
handlers. The number of producers and handlers operating in the
industry has decreased significantly since the Order was established in
1965, dropping from 2,500 to 900 (64 percent) and from 28 to 2 (93
percent), respectively. Industry consolidation has made it difficult to
find enough members to fill positions on the Committee.
The Committee considered alternatives to the proposal, including
making no changes. AMS believes the proposal is justified and necessary
to ensure the Committee's ability to locally administer the program.
Revising the quorum requirement, will help ensure a more efficient and
orderly flow of business.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and
Specialty Crops. No changes in those requirements are necessary as a
result of this action. Should any changes become necessary, they would
be submitted to OMB for approval.
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.
AMS is committed to complying with the E-Government Act, to promote
the use of the internet and other information technologies to provide
increased opportunities for citizens to access Government information
and services, and for other purposes.
The Committee's meetings were widely publicized throughout the
California olive production area. All interested persons were invited
to attend the meetings and encouraged to participate in Committee
deliberations on all issues. The Committee meetings were public, and
all entities, both large and small, were encouraged to express their
views on these proposals.
A proposed rule concerning this action was published in the Federal
Register on November 6, 2019 (84 FR 59736). Copies of the proposed rule
were mailed or sent via facsimile to all Committee members and all
interested parties. The proposed rule was made available through the
internet by USDA and the Office of the Federal Register. A 30-day
comment period ending December 6, 2019, was provided to allow
interested persons to respond to the proposals. No comments were
received; therefore, no changes were made to the proposed amendment.
A proposed rule and referendum order was then issued on February
21, 2020, and published in the Federal Register on February 27, 2020
(85 FR
[[Page 38762]]
11312). This document directed that a referendum among California olive
producers be conducted March 9, 2020, through March 20, 2020, to
determine whether they favored the proposal. To become effective, the
amendment had to be approved by two-thirds of producers voting or by
those producers voting in the referendum who represented at least two-
thirds of the volume of California olives.
The amendment was favored by 86 percent of the producers voting and
by 96 percent of the volume represented; both exceeding the two-thirds
requirement.
The amended marketing agreement was subsequently mailed to all
olive handlers in the production area for their approval. The marketing
agreement was not approved by handlers representing more than 50
percent of the volume of olives handled by all handlers during the
representative period. Consequently, no companion handler agreement
will be established.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any
questions about the compliance guide should be sent to Richard Lower at
his previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
Order Amending the Order Regulating the Olives Grown in the California
\1\
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\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
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Findings and Determinations
(a) Findings and Determinations Upon the Basis of the Rulemaking
Record.
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of the Order; and all said previous findings and
determinations are hereby ratified and affirmed, except insofar as such
findings and determinations may be in conflict with the findings and
determinations set forth herein.
1. The Order, as amended, and as hereby further amended, and all of
the terms and conditions thereof, would tend to effectuate the declared
policy of the Act;
2. The Order, as amended, and as hereby further amended, regulates
the handling of olives grown in California in the same manner as, and
is applicable only to, persons in the respective classes of commercial
and industrial activity specified in the Order;
3. The Order, as amended, and as hereby further amended, is limited
in application to the smallest regional production area that is
practicable, consistent with carrying out the declared policy of the
Act, and the issuance of several orders applicable to subdivisions of
the production area would not effectively carry out the declared policy
of the Act;
4. The Order, as amended, and as hereby further amended,
prescribes, insofar as practicable, such different terms applicable to
different parts of the production area as are necessary to give due
recognition to the differences in the production and marketing of
olives produced in the production area; and
5. All handling of olives produced in the production area as
defined in the Order is in the current of interstate or foreign
commerce or directly burdens, obstructs, or affects such commerce.
(b) Determinations.
It is hereby determined that:
1. Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping of olives
covered under the Order) who during the period August 1, 2018, through
July 31, 2019, handled not less than 50 percent of the volume of such
olives covered by said Order, as hereby amended, have signed an amended
marketing agreement; and
2. The issuance of this amendatory order, further amending the
aforesaid Order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period of August 1, 2018, through July 31, 2019,
were engaged within the production area in the production of such
olives. Such producers also produced for market at least two-thirds of
the volume of such commodity represented in the referendum.
3. The issuance of this amendatory order together with a signed
marketing agreement advances the interests of growers of olives in the
production area pursuant to the declared policy of the Act.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, all handling of olives grown in California shall be in
conformity to, and in compliance with, the terms and conditions of the
said Order as hereby proposed to be amended as follows:
The provisions amending the Order contained in the proposed rule
issued by the Administrator on November 1, 2019, and published in the
Federal Register on November 6, 2019, (84 FR 59736) will be and are the
terms and provisions of this order amending the Order and are set forth
in full herein.
List of Subjects in 7 CFR Part 932
Olives, Marketing agreements, Reporting and recordkeeping
requirements.
Bruce Summers,
Administrator, Agricultural Marketing Service.
PART 932--OLIVES GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 932 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 932.36 [Amended]
0
2. Revise Sec. 932.36 to read as follows:
Sec. 932.36 Procedure.
Decisions of the committee shall be by majority vote of the
members, including alternates acting as members, present and voting,
and a quorum must be present: Provided, That decisions requiring a
recommendation to the Secretary on matters pertaining to grade and size
regulations shall require at least 10 affirmative votes, at least 5 of
which must be from producer members and at least 5 of which must be
from handler members and, if the committee is increased by the addition
of a public member, at least 11 affirmative votes shall be required, at
least 5 of which must be from producer members and at least 5 of which
must be from handler members. A quorum shall consist of at least 10
members, including alternates acting as members, and, if the committee
is increased by the addition of a public member, a quorum shall consist
of at least 11 members, including alternates acting as members. Except
in case of an emergency, a minimum of 5 days advance notice shall be
given with respect to any meeting of the committee. In case of an
emergency, to be determined within the discretion of the chairman of
the committee, as much advance notice of a meeting as is practicable in
the circumstances shall be given. The committee may vote by mail or
telegram upon due notice to all members, but any proposition to be so
voted upon first shall be explained accurately, fully, and identically
by mail or telegram to all members. When voted on by such method, at
least 14 affirmative votes, of which seven shall be producer member
votes and seven shall be handler member votes, shall be required for
adoption and, if the committee is increased by the addition of a public
member, votes by mail or
[[Page 38763]]
telegram shall require at least 15 affirmative votes, of which at least
7 shall be producer member votes and at least 7 shall be handler member
votes. The committee may recommend for the Secretary's approval changes
in the number of affirmative votes required for adoption of any
proposition voted upon by means of a mail or telegram ballot: Provided,
That the number of affirmative votes required for adoption shall not be
less than 10, and in any case an equal number of producer member and
handler member votes shall be required for adoption and, if the
committee is increased by the addition of a public member, the number
of affirmative votes required for adoption shall be increased by 1.
[FR Doc. 2020-12884 Filed 6-26-20; 8:45 am]
BILLING CODE P
