[Federal Register Volume 64, Number 206 (Tuesday, October 26, 1999)]
[Proposed Rules]
[Pages 57597-57600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27744]
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Proposed Rules
Federal Register
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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. 64, No. 206 / Tuesday, October 26, 1999 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[Docket No. FV99-932-3 PR]
Olives Grown in California; Revisions to Handling Requirements
and Notice of Request for Revision of a Currently Approved Information
Collection
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposal invites comments on revisions to the handling
requirements under the California olive marketing order and announces
the Agricultural Marketing Service's (AMS) intention to request a
revision to the currently approved information collection requirements
issued under the marketing order. The olive marketing order regulates
the handling of olives grown in California, and is administered locally
by the California Olive Committee (committee). This rule would
establish exemption and safeguard requirements for handlers desiring to
ship a small portion of their olives as new packaged olive products for
test marketing and market development projects. If implemented, this
rule would help provide uniform procedures under the order and improve
overall program administration.
DATES: Comments must be received by December 27, 1999.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Fruit and Vegetable Programs, AMS, USDA, room 2525-S, PO Box 96456,
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail:
moab.docketclerk@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: Terry Vawter, 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, Fruit and Vegetable
Programs, AMS, USDA, room 2525-S, PO Box 96456, Washington, DC 20090-
6456; telephone: (202) 720-2491, 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, PO Box
96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-
2491, Fax: (202) 720-5698, or E-mail: Jay.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 proposal is issued under Marketing
Agreement No. 148 and Marketing 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 proposed
rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal 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 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 the date of the entry of the ruling.
This proposal invites comments on revisions to handling
requirements under the order for olives grown in California. The
revision would implement procedures and reporting requirements for
handlers desiring to use a small portion of their olives to test market
and initiate market development projects for new packaged olive
products. The procedures include completion and submission of a new
form, the COC Form 155, and approval by committee staff. This rule also
announces AMS's intention to request a revision to the currently-
approved information collection requirements issued under the marketing
order.
Sections 932.51 and 932.52 of the olive marketing order authorize
regulatory requirements regarding the handling of California packaged
olives. Such requirements include incoming and outgoing handling
requirements with regard to quality, size, and style of olives. Certain
of these requirements are implemented under Sec. 932.149. Styles of
olives include whole, pitted, sliced, segmented (wedged), halved,
chopped, and broken pitted. Under this proposal, handlers would be
permitted to use other styles of olives and to add other ingredients to
the finished product, such as flavorings, pieces of garlic, or jalapeno
peppers.
Section 932.55 of the order provides authority for exempting from
any or all requirements handlers handling olives which are used for
specified purposes, including shipments of olives used to facilitate
the conduct of marketing research and development projects. Section
932.55 of the order also provides authority for the committee to
recommend rules, regulations, and safeguards necessary to ensure that
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olives exempted under the provisions of this section are handled only
as authorized.
Section 932.155 of the order's rules and regulations provides
specific safeguards for certain special purpose shipments of packaged
olives. However, these regulations do not include requirements and
procedures related to shipping packaged olives for test marketing and
market development. In the past, the committee has on occasion approved
such marketing projects. This rule proposes revising Sec. 932.155 for
the purpose of clarifying the language and to include an exemption and
safeguards in the rules and regulations for shipments of new packaged
products for test marketing and market development. This would clarify
existing practices in the regulations, and would establish uniform
procedures for all handlers to ensure that the handling of new product
packaged olives exempted under the provisions of Sec. 932.55 will be
handled only as authorized. Such new products could include packaged
olives of different styles than those earlier mentioned containing
various ingredients or flavorings, such as pieces of garlic, or
jalapeno peppers.
The proposed rule includes a new form, the COC 155. Prior to
engaging in test marketing and initiating market development projects
for a new product, a handler would be required to file the COC 155 with
the committee. The form includes: (1) The name and address of the
requesting handler; (2) the quantity of olives to be utilized (limited
to not more than five percent of the applicant handler's crop year
acquisitions); (3) specific market outlet; (4) flavorings or other
ingredients added to the olives; (5) style of olives used; (6) type of
olives used, either black or green ripe; (7) container sizes; (8)
varieties used, whether Ascolano, Barouni, Manzanillo, Mission,
Sevillano, etc.; (9) sizes of olives utilized; (10) approximate dates
on which the new product will be packaged; (11) place of inspection;
(12) certification that all assessments and reporting in effect under
the marketing order will be met prior to shipment; (13) certification
that all such fruit will be kept separate from other packaged olives
and will be so identified by control cards or other means acceptable to
the Inspection Service; (14) purpose and nature of the request, whether
for test marketing, evaluation, market research, etc.; and (15) an
estimate of the amount of time required to complete the market-test.
The committee shall promptly approve or deny the application, and may
add limitations to any such approval.
Any product remaining at the end of the test-market period shall be
disposed of according to paragraph (a) of Sec. 932.155, which specifies
procedures for disposing of packaged olives in the production of olive
oil, donating to a charitable organization, and by dumping.
On December 10, 1998, the committee met to discuss the
recommendation. Additional discussion occurred at various subcommittee
meetings prior to the December 10, 1998, committee meeting.
According to the committee, demand for packaged olives has remained
relatively stagnant in recent years. The committee believes that to
improve returns to producers and handlers, handlers must have the
flexibility to respond to shifting trends in the marketplace by test
marketing new products. Handlers must be allowed the opportunity to try
marketing innovative new products free from certain marketing order
obligations, such as style and flavor requirements, which appear to be
too restrictive for these new products. Such shipments, will,
therefore, be exempt from the requirements of Sec. 932.149. Because it
appears that such shipments can comply with all other order
requirements, they will remain applicable. This would allow the
handlers to respond to marketing opportunities and requests from
buyers, which could result in increased olive sales. In addition, since
handlers have large amounts of capital invested in their processing
plants, any increase in the amount of olives processed yields a
reduction of per unit processing costs, which is a benefit to handlers
and producers.
It has been the industry's experience that the ability to ship new
products for test marketing and market development helps to encourage
handlers to develop new product lines. The committee believes that this
option should continue to be available, allowing handlers to take
advantage of additional marketing opportunities to expand the market
for processed olives. Adding procedures to the rules and regulations
will help clarify the existing practice, and will provide uniform
requirements for handlers.
Therefore, when the committee met in December, it unanimously
recommended modifying the rules and regulations to specify procedures
and reporting requirements to permit handlers to ship a small portion
of their olives for new packed olive products for test marketing and
market development projects. In addition, the committee recommended
development of a new form, the COC Form 155, that handlers interested
in test marketing and market development projects for new olive
products must complete and file with the committee.
The information supplied by the applicant handler would provide the
committee with information necessary to ensure that the product is used
for test marketing or for marketing development projects and that the
Inspection Service is aware of the product.
The new COC Form 155 will require a revision in the information
collection requirements under the order. It is estimated that COC Form
155 would require 20 minutes for the applicant handlers to complete. It
is expected that this could result in an increased reporting burden to
handlers. The increased burden is estimated to be 20 minutes per
handler annually. If all three handlers applied, the COC Form 155 would
add 1 hour in total annual hours to the current response burden.
The information collection requirements contained in the referenced
Sec. 932.155 will require approval by the Office of Management and
Budget (OMB) under the provisions of 44 U.S.C. Chapter 35.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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 subject to regulation under the order and
approximately 1,200 producers of olives 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. The majority of producers
may be classified as small entities.
A review of historical and preliminary information pertaining to
the current fiscal year (January 1 through December 31) indicates that
the total grower revenue for the 1999 crop year (August
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1 through July 31) is estimated to be approximately $39,500,000, and
the average grower revenue approximately $33,000. Thus, it can be
concluded that the majority of producers of California olives may be
classified as small entities.
This rule would revise Sec. 932.155 to include requirements for
handlers desiring to ship olives to test markets and initiate market
development projects for small quantities of new olive products. This
rule would also reformat Sec. 932.155 for purposes of clarity.
An alternative to this action would be to maintain the status quo,
whereby the regulations would not address the needs of handlers
desiring to ship new products for test marketing and market
development. However, the committee and the Department believe that
regulations should be modified to address these needs. This would help
ensure uniform requirements and procedures are followed by handlers who
desire to test market and initiate market development projects. Such
activity could ultimately result in increasing sales of processed
olives.
Under this proposed rule, the committee would review written
requests from handlers interested in test marketing and market
development of new product lines. Such requests would be made on a new
form, the COC 155, which would require uniform information from all
applicant 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.
This new form is anticipated to be utilized when handlers have
developed new product lines which they desire to test market.
Accordingly, this action would impose an additional reporting or
recordkeeping requirement on three olive handlers by requiring COC Form
155 to be filed prior to the test marketing of a new canned olive
product. The form is estimated to take approximately 20 minutes to
complete. There are only three handlers regulated under the order, and
the additional burden created by the use of this form by all handlers
is estimated to be 1 annual hour.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this proposed rule.
In addition, the committee's meeting was widely publicized
throughout the olive industry and all interested persons were
encouraged 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 encouraged to express views on this issue. The committee is
comprised of 16 members, of which 8 are producers and 8 are handlers.
Each of the three handler entities is presently represented on the
committee. Finally, interested persons are invited to submit
information on the regulatory and informational impacts of this action
on small businesses.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS announces its intention to request a revision to a
currently approved information collection for olives grown in
California, Marketing Order No. 932.
Title: Olives Grown in California, Marketing Order 932.
OMB Number: 0581-0142.
Expiration Date of Approval: October 31, 2000.
Type of Request: Revision of a currently approved information
collection.
Abstract: Marketing order programs provide an opportunity for
producers of fresh fruits, vegetables, and specialty crops, in a
specified production area, to work together to solve marketing problems
that cannot be solved individually. Order regulations help ensure
adequate supplies of good quality product and adequate returns to
producers. Under the Agricultural Marketing Agreement Act of 1937
(Act), as amended (7 U.S.C. 601-674), marketing order programs are
established if favored by producers in referenda. The handling of the
commodity is regulated. The Secretary of Agriculture is authorized to
oversee order operations and issue regulations recommended by a
committee of representatives from each commodity industry.
The information collection requirements in this request are
essential to carry out the intent of the Act, to provide the
respondents the type of service they request, and to administer the
California olive marketing order program, which has been operating
since 1965.
The California olive marketing order authorizes the issuance of
quality, size, and inspection requirements. The order also has
authority for research and development projects, including paid
advertising. Pursuant to section 8e of the Act, import grade and size
requirements are implemented on olives imported into the United States.
The order and its rules and regulations authorize the California
Olive Committee (committee), the agency responsible for local
administration of the order, to require handlers and producers to
submit certain information. Much of this information is compiled in
aggregate and provided to the industry to assist in marketing
decisions.
The committee has developed forms as a means for persons to file
required information with the committee relating to olive supplies,
shipments, dispositions, and other information necessary to effectively
carry out the purpose of the Act and the order. California olives are
shipped year-round and these forms are used accordingly.
These forms require the minimum information necessary to
effectively carry out the requirements of the order, and their use is
necessary to fulfill the intent of the Act as expressed in the order.
The information collected would be used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable
Programs regional and headquarter's staff, and authorized employees of
the committee. Authorized committee employees and the industry are the
primary users of the information and AMS is the secondary user.
This proposed collection consists of a requirement for handlers to
file a form with the committee for approval to ship new olive products
to be test marketed.
The committee believes that to improve returns to producers and
handlers, handlers should be encouraged to look for outlets for new
product lines. One method to encourage development of new products is
to continue to allow test marketing of such products by including
authority in the rules and regulations that is uniformly applied to all
handlers. The information supplied by the applicant handler would
provide the committee with information necessary to ensure that the
product is used for test marketing or for marketing development
projects and that the inspection service is aware of the product.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average \1/3\ hour per response.
Respondents: California olive handlers.
Estimated Number of Respondents: 3
Estimated Number of Responses per Respondent: one annually.
Estimated Total Annual Burden on Respondents: 1 hour.
Comments are invited on: (1) Whether the proposed collection of the
information is necessary for the proper performance of the functions of
the agency, including whether the
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information will have practical utility; (2) the accuracy of the
agency's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (3) ways to enhance the quality, utility and clarity of the
information to be collected; and (4) ways to minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology.
Comments should reference OMB No. 0581-0142 and California Olive
Marketing Order No. 932, and be sent to the USDA in care of the docket
clerk at the address referenced above. All comments received will be
available for public inspection during regular business hours at the
same address and will become a matter of public record.
A 60-day comment period is provided to allow interested persons to
respond to this proposal. All responses to this notice will be
summarized and included in the request for OMB approval.
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
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. In Sec. 932.155, paragraphs (a) and (b) are revised to read as
follows:
Sec. 932.155 Special purpose shipments.
(a) The disposition of packaged olives covered by Sec. 932.152(d)
which are not reprocessed, and new packaged olive products covered
under paragraph (b) of this section which have not been disposed of by
the end of the test market period, shall be handled in conformity with
the applicable provisions of this paragraph.
(1) Under supervision of the Inspection Service, such packaged
olives may be disposed of for use in the production of olive oil or
dumped.
(2) Such packaged olives may be disposed of to a charitable
organization for use by such organization, provided the following
conditions are met:
(i) Any handler who wishes to so dispose of olives shall first file
a written application with, and obtain written approval thereof from,
the committee. Each such application shall contain at least:
(A) The name and address of the handler and the charitable
organization;
(B) The physical location of the charitable organization's
facilities;
(C) The quantity in cases, the variety, size, can size, and can
code of the packaged olives; and
(D) A certification from the charitable organization that such
olives will be used by the organization and will not be sold.
(ii) Prior to approval, the committee shall perform such
verification of the accuracy of the information on the application as
it deems necessary. The committee may deny any application if it finds
that the required information is incomplete or incorrect, or has reason
to believe that the intended receiver is not a charitable organization,
or that the handler or the organization has disposed of packaged olives
contrary to a previously approved application. The committee shall
notify the applicant and the organization in writing of its approval,
or denial, of the application. Any such approval shall continue in
effect so long as the packaged olives covered thereby are disposed of
consistent with this section. The committee shall notify the handler
and the organization of each such termination of approval. The handler
shall furnish the committee upon demand such evidence of disposition of
the packaged olives covered by an approved application as may be
satisfactory to the committee.
(b) In accordance with the provisions of Sec. 932.55(b), packaged
olives to be used in marketing development projects may be handled
without regard to Sec. 932.149 provided the following conditions are
met. Such olives must be identified to the satisfaction of the
Inspection Service and kept separate from other packaged olives. The
handler shall submit to the committee for its approval ``COC Form 155''
at least 10 working days prior to the shipment of such packaged olives
to test markets, and report progress or changes to the committee, as
requested. The applicant handler shall provide the following
information on COC Form 155:
(1) The quantity of olives to be utilized (limited to not more than
five percent of the handler's crop year acquisitions);
(2) Specific market outlet;
(3) Flavorings or other ingredients added to the olives;
(4) Style of olives used;
(5) Type of olives used, either black or green ripe;
(6) Container sizes;
(7) Varieties used, whether Ascolano, Barouni, Manzanillo, Mission,
Sevillano, etc.;
(8) Sizes of olives utilized;
(9) Approximate dates when the new product will be packaged;
(10) Name and address of requesting handler;
(11) Place of inspection;
(12) Certification that all assessment and reporting requirements
in effect under the marketing order will be met prior to shipment;
(13) Certification that all such fruit will be kept separate from
other packaged olives and will be so identified by control cards or
other means acceptable to the Inspection Service;
(14) Purpose and nature of the request, whether for test marketing,
evaluation, market research, etc.; and
(15) An estimate of the amount of time required to complete the
test. The committee shall promptly approve or deny the application, and
may add limitations to any such approval. Upon approval, the applicant
handler shall notify the Inspection Service. Packaged olives so
identified and remaining unused at the end of the approved test-market
period shall be disposed of according to paragraph (a) of this section.
* * * * *
Dated: October 18, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-27744 Filed 10-25-99; 8:45 am]
BILLING CODE 3410-02-P
