[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Proposed Rules]
[Pages 9536-9538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4338]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 /
Proposed Rules
[[Page 9536]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[Doc. No. AMS-FV-09-0089; FV10-932-1 PR]
Olives Grown in California; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule would increase the assessment rate established for
the California Olive Committee (Committee) for the 2010 and subsequent
fiscal years from $28.63 to $44.72 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 would remain in effect
indefinitely unless modified, suspended, or terminated.
DATES: Comments must be received by April 2, 2010.
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 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: Jeffrey S. Smutny, 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: [email protected] or
[email protected].
Small businesses may request information on complying with this
regulation by contacting Antoinette Carter, 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 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 proposed herein would be applicable to all
assessable olives beginning on January 1, 2010, and continue until
amended, suspended, or terminated.
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. 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 would increase the assessment rate established for the
Committee for the 2010 and subsequent fiscal years from $28.63 to
$44.72 per ton of olives.
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 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 formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2009 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 15, 2009, and unanimously recommended
2010 fiscal year expenditures of $929,923 and an assessment rate of
$44.72 per ton of olives. In comparison, last year's budgeted
expenditures were $1,482,349. The assessment rate of $44.72 is $16.09
higher than the rate currently in effect. The Committee recommended the
higher assessment rate because the 2009-10 assessable olive receipts as
reported by the California Agricultural Statistics Service (CASS) are
only 22,150 tons, which compares to 49,067 tons in 2008-09. Unusual
weather conditions, including untimely temperatures that fell below
freezing, contributed to a substantially smaller crop. The Committee
also plans
[[Page 9537]]
to use available reserve funds to help meet its 2010 expenses.
The major expenditures recommended by the Committee for the 2010
fiscal year include $300,000 for research, $255,000 for marketing
activities, and $324,923 for administration. Budgeted expenditures for
these items in 2009 were $495,000, $627,800, and $359,549,
respectively.
The assessment rate recommended by the Committee was derived by
considering anticipated fiscal year expenses, actual olive tonnage
received by handlers during the 2009-10 crop year, and additional
pertinent factors. Actual assessable tonnage for the 2010 fiscal year
is expected to be lower than the 2009-10 crop receipts of 22,150 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 interest income and funds from the
Committee's authorized reserve, would 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 proposed assessment rate would 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 would be in effect for an indefinite
period, the Committee would 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 would
be undertaken as necessary. The Committee's 2010 budget and those for
subsequent fiscal years would 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. 601-602), 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 unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 1000 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 would increase the assessment rate established for the
Committee and collected from handlers for the 2010 and subsequent
fiscal years from $28.63 to $44.72 per ton of assessable olives. The
Committee unanimously recommended 2010 expenditures of $929,923 and an
assessment rate of $44.72 per ton. The proposed assessment rate of
$44.72 is $16.09 higher than the 2009 rate. The higher assessment rate
is necessary because assessable olive receipts for the 2009-10 crop
year were reported by the CASS to be 22,150 tons, compared to 49,067
tons for the 2008-09 crop year. Actual assessable tonnage for the 2010
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 $44.72 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).
The major expenditures recommended by the Committee for the 2010
fiscal year include $300,000 for research, $255,000 for marketing
activities, and $324,923 for administration. Budgeted expenses for
these items in 2009 were $495,000, $627,800, and $359,549 respectively.
The Committee recommended decreases in all major expense categories due
to the huge decrease in assessable crop volume as reported by the CASS.
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 $44.72 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 and preliminary information
pertaining to the upcoming fiscal year indicates that the grower price
for the 2009-10 crop year was approximately $1,193.94 per ton for
canning fruit and $375.01 per ton for limited-use sizes, leaving the
balance as unusable cull fruit. Approximately 91 percent of a ton of
olives are canning fruit sizes and 5 percent are limited use sizes,
leaving the balance as unusable cull fruit. Grower revenue on 22,150
total tons of canning and limited-use sizes would be $24,321,145 given
the current grower prices for those sizes. Therefore, with an
assessment rate increased from $28.63 to $44.72, the estimated
assessment revenue is expected to be approximately 4 percent of grower
revenue.
This action would increase 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
would 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
15, 2009, 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 comments on this proposed rule, including
the regulatory and informational impacts of this action on small
businesses.
This proposed rule would impose 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
[[Page 9538]]
requirements and duplication by industry and public sector agencies.
The 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=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to
Antoinette Carter at the previously mentioned address in the FOR
FURTHER INFORMATION CONTACT section.
A 30-day comment period is provided to allow interested persons to
respond to this proposed rule. Thirty days is deemed appropriate
because: (1) The 2010 fiscal year began on January 1, 2010, 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; and (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.
List of Subjects in 7 CFR Part 932
Olives, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 932 is
proposed to be amended as follows:
PART 932--OLIVES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 932 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 932.230 is revised to read as follows:
Sec. 932.230 Assessment rate.
On and after January 1, 2010, an assessment rate of $44.72 per ton
is established for California olives.
Dated: February 25, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-4338 Filed 3-2-10; 8:45 am]
BILLING CODE 3410-02-P