[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Rules and Regulations]
[Pages 4286-4288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1970]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[Docket No. FV99-932-2 IFR]
Olives Grown in California; Modification to Handler Membership on
the California Olive Committee
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule invites comments on modifications to the handler
membership on the California Olive Committee (Committee). The Committee
locally administers the California olive marketing order (order) which
regulates the handling of olives grown in California. The Committee is
composed of 16 industry members of which 8 are producers and 8 are
handlers. Current handler membership is allocated between cooperative
marketing organizations and independent handlers (handlers not
affiliated with cooperatives), and the number of handler members that
may be affiliated with any one handler is limited to two. This rule
removes the distinction between cooperative and independent handlers,
removes the limitation on handler affiliation, and reallocates handler
membership on the basis of the total quantity of olives handled. These
modifications will allow two vacant handler member positions on the
Committee to be filled. This rule was unanimously recommended by the
Committee.
DATES: Effective January 29, 1999; comments received by March 29, 1999
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, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail:
moabdocket__clerk@usda.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.
FOR FURTHER INFORMATION CONTACT: Mary Kate Nelson, Marketing
Specialist, California Marketing Field Office, Marketing Order
Administration Branch, F&V, AMS, USDA, 2202 Monterey Street, suite
102B, Fresno, California 93721; telephone: (559) 487-5901, Fax: (559)
487-5906; or George Kelhart, Technical Advisor, Marketing Order
Administration Branch, F&V, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; telephone: (202) 720-9921; Fax: (202) 720-
5698. Small businesses may request information on complying with this
regulation, or obtain a guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders by contacting Jay
Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-
6456; telephone: (202) 720-2491; Fax: (202) 720-5698, or E-mail:
Jay__N__Guerber@usda.gov. You may view the marketing agreement and
order small business compliance guide at the following web site: http:/
/www.ams.usda.gov/fv/moab.html.
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 marketing agreement and order are
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 (Department) 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 the Secretary 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
[[Page 4287]]
a hearing on the petition. After the hearing the Secretary 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 the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after date of the entry of the ruling.
Section 932.25 of the order provides for the establishment of the
Committee to locally administer the terms and provisions of the order.
The Committee is composed of 16 industry members, each with an
alternate. Of the 16 industry members, 8 are producers and 8 are
handlers. This section also specifies how the handler membership on the
Committee is allocated. Authority is provided for the Committee, with
the approval of the Secretary, to change the allocation of both
producer and handler members as may be necessary to assure equitable
representation.
Section 932.159 of the administrative rules and regulations
provides that two members shall represent cooperative marketing
organizations and six members shall represent handlers who are not
cooperative marketing organizations. In addition, Sec. 932.160 limits
to two the number of handler members that may be affiliated with the
same handler.
The Committee met on December 10, 1998, and unanimously recommended
modifying the rules and regulations to remove the distinction between
cooperative and independent handlers, and the limitation on the number
of handler members that may be affiliated with the same handler. It
also unanimously recommended that the two handlers who handled the
largest and second largest total volume of olives during the crop year
in which nominations are made and the preceding crop year be
represented by three members each, and that the third largest handler
be represented by two members. This rule is intended to modify the
Committee's handler membership to reflect structural changes within the
handler segment of the industry, and to enable the Committee to operate
at full strength; i.e., with all eight handler and producer positions
filled.
The structure of the olive industry has changed over the years and
the number of handlers, both cooperative and independent, has
decreased. At one time, there were a number of cooperative marketing
organizations and independent handlers and the Committee's structure
was designed so that four of the eight handler seats were held by
cooperatives and four were held by independents. This representation
was also weighted by the volume of olives handled so that if one group,
either cooperatives or independents, handled 65 percent or more of the
total industry's volume handled during the nominating crop year and the
preceding crop year, that group would have five seats on the Committee
and the other group would have three seats.
In 1993, handler membership on the Committee was reallocated to
reflect changes within the industry. The number of industry handlers
declined to only five handlers--one cooperative and four independents.
At that time, Sec. 932.159 of the order's rules and regulations was
modified to reapportion handler membership to provide cooperative
handlers with two seats on the Committee and independent handlers with
six seats.
Since 1993, the number of handlers in the olive industry has
continued to decline. Today there are three handlers remaining--one
cooperative and two independents. Because there is only one existing
cooperative, the Committee believes that the distinction regarding
cooperative and independent handlers on the Committee is no longer
appropriate or necessary.
Additionally, Sec. 932.160 specifies that no more than two nominees
for member and alternate member positions may be affiliated with the
same handler. Because there are only three handlers remaining in the
industry, this restriction has resulted in two vacant handler positions
on the Committee that cannot be filled.
To allow these positions to be filled and enable the Committee to
operate at full strength, the Committee recommended that Sec. 932.159
be revised to eliminate the distinction between cooperative marketing
organizations and independent handlers (or handlers not affiliated with
a cooperative marketing organization). It also recommended that the
eight handler seats on the Committee be reallocated based on the total
volume of olives handled during the crop year in which nominations are
made and the preceding crop year, with the handlers handling the first
and second largest volume being represented with three members each,
and the remaining handler being represented with two members.
The reallocation of handler membership in Sec. 932.159 makes the
two nominee limitation on affiliation with the same handler specified
in Sec. 932.160 unnecessary, and that section is removed.
These changes are designed to modify the Committee's handler
membership to reflect structural changes within the handler segment of
the industry, and to remove the current barriers to filling the two
vacant handler positions on the Committee.
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 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 3 handlers of California olives who are subject to
regulation under the marketing order and approximately 1,200 olive
producers in the regulated area. Small agricultural service firms have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $5,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $500,000. None of the olive handlers may be classified as
small entities.
Based on a review of historical and preliminary price and marketing
information, total grower revenue for the 1998-99 crop year (August 1
through July 31) is estimated to be approximately $39,500,000, and the
average grower revenue will be approximately $33,000. Thus, it can be
concluded that the majority of producers of California olives may be
classified as small entities.
This rule modifies the order's administrative rules and regulations
regarding the structure of handler membership on the Committee. The
Committee locally administers the order and is composed of 16 industry
members. Eight of the 16 industry members are producers and 8 are
handlers. Current handler membership provisions distinguish between
cooperative marketing organizations and independent handlers specifying
that two members shall represent cooperative marketing organizations
and six members shall represent handlers who are not cooperative
marketing organizations. The handler nominee provisions also specify
that no more than two nominees for handler member
[[Page 4288]]
and alternate member positions may be affiliated with the same handler.
This rule modifies the order's rules and regulations to remove the
distinction between cooperative and independent handlers, and to
specify that the number of members representing each of the three
currently existing industry handlers shall be based on the total volume
of olives handled during the nominating crop year and the preceding
crop year, with the two handlers handling the largest and second
largest volume of olives represented by three members and alternates
each, and the remaining handler represented by two members and
alternates. This rule also removes provisions limiting the number of
members to which each handler is entitled because the limitation is no
longer necessary. The changes were unanimously recommended by the
Committee and are intended to modify the Committee's handler membership
to reflect structural changes within the handler segment of the
industry, and to remove current barriers to filling two vacant handler
positions on the Committee. Authority for this rule is provided in
Sec. 932.25 which allows the Committee, with the approval of the
Secretary, to reallocate the Committee's producer or handler membership
as necessary to assure equitable representation.
Removal of the distinction between cooperative and independent
handlers will not have any impact on handlers or producers in the
California olive industry.
One alternative to this rule discussed at the meeting was to leave
the language in Sec. 932.159 unchanged; however, the Committee believes
that the distinction between cooperative and independent is no longer
appropriate, because there is only one existing cooperative in the
industry and two independent handlers. Another alternative discussed at
the meeting was to leave Sec. 932.160 of the order's rules and
regulations unchanged so that only two members may be affiliated with
the same handler, but with only three handlers currently in the
industry that would result in uneven representation between growers
with eight members and handlers with six members, and would fail to
assure equitable representation on the Committee as is required
pursuant to Sec. 932.25.
This rule will not impose any additional reporting or recordkeeping
requirements on any of the three 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. In addition, the Department has not identified
any relevant Federal rules that duplicate, overlap, or conflict with
this proposed rule.
Further, the Committee's meeting was widely publicized throughout
the 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, 1998, meeting was a
public meeting and all entities, both large and small, were able to
express their views on this issue. All three industry handlers are
currently represented on the Committee and participated in the
deliberations. Finally, interested persons are invited to submit
information on the regulatory and informational impacts of this action
on small businesses.
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.
This rule invites comments on modifications to the handler
membership on the Committee. Any comments received will be considered
prior to finalization of this rule.
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) There are currently two vacant handler member seats on the
Committee that cannot be filled until these modifications to the
administrative rules and regulations are implemented, and it is
important that the Committee operate at full strength; (2) timely
implementation of this action will allow the vacancies to be filled;
(3) the Committee unanimously recommended these changes at a public
meeting and interested parties had an opportunity to provide input; (4)
all three handlers are represented on the Committee and participated in
deliberations; and (5) 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 932
Marketing agreements, Olives, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 932 is
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 932.159 is revised to read as follows:
Sec. 932.159 Reallocation of handler membership.
Pursuant to Sec. 932.25, handler representation on the committee is
reallocated to provide that the two handlers who handled the largest
and second largest total volume of olives during the crop year in which
nominations are made and in the preceding crop year shall be
represented by three members and alternate members each, and the
remaining handler shall be represented by two members and alternate
members.
Sec. 932.160 [Removed]
3. Section 932.160 is removed.
Dated: January 22, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-1970 Filed 1-27-99; 8:45 am]
BILLING CODE 3410-02-P
