[Federal Register: February 20, 2009 (Volume 74, Number 33)]
[Rules and Regulations]
[Page 7782-7785]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20fe09-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[Doc. No. AMS-FV-08-0105; FV09-932-1 IFR]
Olives Grown in California; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule increases the assessment rate established for the
California Olive Committee (committee) for the 2009 and subsequent
fiscal years from $15.60 to $28.63 per assessable ton of olives
handled. The committee locally administers the marketing order which
regulates the handling of olives grown in California. Assessments upon
olive handlers are used by the committee to fund reasonable and
necessary expenses of the program. The fiscal year began January 1 and
ends December 31. The assessment rate will remain in effect
indefinitely unless modified, suspended, or terminated.
DATES: Effective February 21, 2009. Comments received by April 21,
2009, 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; or Internet: http://
www.regulations.gov. 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.regulations.gov. All comments submitted in response to this rule
will be included in the record and will be made available to the
public. Please be advised that the identity of the individuals or
entities submitting the comments will be made public on the Internet at
the address provided above.
FOR FURTHER INFORMATION CONTACT: Jennifer R. Garcia, Marketing
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559)
487-5906; or E-mail:
[[Page 7783]]
Jennifer.Garcia@ams.usda.gov or Kurt.Kimmel@ams.usda.gov.
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@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932),
regulating the handling of olives grown in California, 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. Under the marketing order now in effect, California
olive handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
olives beginning on January 1, 2009, and continue until amended,
suspended, or terminated. 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 there from. Such
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 increases the assessment rate established for the
committee for the 2009 and subsequent fiscal years from $15.60 to
$28.63 per ton of assessable olives from the applicable crop years.
The California olive marketing order provides authority for the
committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The fiscal year, which is the 12-month period between January
1 and December 31, begins after the corresponding crop year, which is
the 12-month period beginning August 1 and ending July 31 of the
subsequent year. Fiscal year budget and assessment recommendations are
made after the corresponding crop year olive tonnage is reported. The
members of the committee are producers and handlers of California
olives. They are familiar with the committee's needs and with costs for
goods and services in their local area and are thus in a position to
formulate an appropriate budget and assessment rate. The assessment
rate is discussed in a public meeting. Thus, all directly affected
persons have an opportunity to participate and provide input.
For the 2008 and subsequent fiscal years, the committee
recommended, and USDA approved, an assessment rate that would continue
in effect from fiscal year to fiscal year unless modified, suspended,
or terminated by USDA upon recommendation and information submitted by
the committee or other information available to USDA.
The committee met on December 10, 2008, and unanimously recommended
2009 fiscal year expenditures of $1,482,349 and an assessment rate of
$28.63 per ton of assessable olives. In comparison, last year's
budgeted expenditures were $1,588,552. The assessment rate of $28.63 is
$13.03 higher than the rate currently in effect. The committee
recommended the higher assessment rate because the 2008-09 assessable
olive receipts as reported by the California Agricultural Statistics
Service (CASS) are only 49,067 tons, which compares to 108,059 tons in
2007-08. A series of very high temperatures and a large crop in 2007
contributed to a substantially smaller crop in 2008. The committee also
plans to use available reserve funds to help meet its 2009 expenses.
The major expenditures recommended by the committee for the 2009
fiscal year include $495,000 for research, $627,800 for marketing
activities, and $359,549 for administration. Budgeted expenditures for
these items in 2008 were $500,000, $750,000, and $288,552,
respectively. The 2009 marketing and research programs will be scaled
back. Recommended increases in the administrative budget are due to
additional costs associated with the anticipated hiring of a new
Executive Director.
The assessment rate recommended by the committee was derived by
considering anticipated fiscal year expenses, actual olive tonnage
received by handlers during the 2008-09 crop year, and additional
pertinent factors. Actual assessable tonnage for the 2009 fiscal year
is expected to be lower than the 2008-09 crop receipts of 49,067 tons
reported by the CASS because some olives may be diverted by handlers to
uses that are exempt from marketing order requirements. Income derived
from handler assessments, along with funds from the committee's
authorized reserve and interest income, should be adequate to cover
budgeted expenses. Funds in the reserve would be kept within the
maximum permitted by the order of approximately one fiscal year's
expenses (Sec. 932.40).
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by USDA
upon recommendation and information submitted by the committee or other
available information.
Although this assessment rate is effective for an indefinite
period, the committee will continue to meet prior to or during each
fiscal year to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of committee meetings are available from the committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA would evaluate committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking will
be undertaken as necessary. The committee's 2009 budget and those for
subsequent fiscal years will be reviewed and, as appropriate, approved
by USDA.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS)
has considered the economic impact of this rule 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
[[Page 7784]]
unique in that they are brought about through group action of
essentially small entities acting on their own behalf.
There are approximately 1,000 producers of olives in the production
area and 2 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 are defined as
those whose annual receipts are less than $7,000,000.
Based upon information from the committee, the majority of olive
producers may be classified as small entities. Both of the handlers may
be classified as large entities.
This rule increases the assessment rate established for the
committee and collected from handlers for the 2009 and subsequent
fiscal years from $15.60 to $28.63 per ton of assessable olives. The
committee unanimously recommended 2009 expenditures of $1,482,349 and
an assessment rate of $28.63 per ton. The assessment rate of $28.63 is
$13.03 higher than the 2008 rate. The higher assessment rate is
necessary because assessable olive receipts for the 2008-09 crop year
were reported by the CASS to be 49,067 tons, compared to 108,059 tons
for the 2007-08 crop year. Actual assessable tonnage for the 2009
fiscal year is expected to be lower because some of the receipts may be
diverted by handlers to exempt outlets on which assessments are not
paid.
Income generated from the $28.63 per ton assessment rate should be
adequate to meet this year's expenses when combined with funds from the
authorized reserve and interest income. Funds in the reserve would be
kept within the maximum permitted by the order of about one fiscal
year's expenses (Sec. 932.40).
Expenditures recommended by the committee for the 2009 fiscal year
include $495,000 for research, $627,800 for marketing activities, and
$359,549 for administration. Budgeted expenditures for these items in
2008 were $500,000, $750,000, and $288,552, respectively. The 2009
marketing and research programs will be scaled back.
Prior to arriving at this budget, the committee considered
information from various sources, such as the committee's Executive,
Market Development, and Research Subcommittees. Alternate spending
levels were discussed by these groups, based upon the relative value of
various research and marketing projects to the olive industry and the
reduced olive production. The assessment rate of $28.63 per ton of
assessable olives was derived by considering anticipated expenses, the
volume of assessable olives and additional pertinent factors.
A review of historical information indicates that the grower price
for the 2008-09 crop year was approximately $1,109.47 per ton for
canning fruit and $380.71 per ton for limited-use sizes, leaving the
balance as unusable cull fruit. Approximately 84 percent of the total
tonnage of olives received is canning fruit sizes and 11 percent is
limited use sizes, leaving the balance as unusable cull fruit. Grower
revenue on 49,067 total tons of canning and limited-use sizes would be
$49,283,177 given the current grower prices for those sizes. Therefore,
with an assessment rate increased from $15.60 to $28.63, the estimated
assessment revenue is expected to be almost 3 percent of grower
revenue.
This action increases the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
will be offset by the benefits derived by the operation of the
marketing order. In addition, the committee's meeting was widely
publicized throughout the California olive industry and all interested
persons were invited to attend the meeting and participate in committee
deliberations on all issues. Like all committee meetings, the December
10, 2008, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue. Finally, interested
persons are invited to submit information on the regulatory and
informational impacts of this action on small businesses.
This action imposes no additional reporting or recordkeeping
requirements on either small or large California olive 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.
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 citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 information and recommendation submitted by the committee and other
available information, it is hereby found that this 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) The 2009 fiscal year began on January 1, 2009,
and the marketing order requires that the rate of assessment for each
fiscal year apply to all assessable olives handled during such fiscal
year; (2) the committee needs sufficient funds to pay its expenses,
which are incurred on a continuous basis; (3) handlers are aware of
this action, which was discussed by the committee and unanimously
recommended at a public meeting, and is similar to other assessment
rate actions issued in past years; and (4) this interim final rule
provides a 60-day comment period, and all comments timely received will
be considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 932
Marketing agreements, Olives, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 932 is amended as
follows:
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.
0
2. Section 932.230 is revised to read as follows:
Sec. 932.230 Assessment rate.
On and after January 1, 2009, an assessment rate of $28.63 per ton
is established for California olives.
[[Page 7785]]
Dated: February 13, 2009.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. E9-3596 Filed 2-19-09; 8:45 am]
BILLING CODE 3410-02-P