[Federal Register Volume 60, Number 159 (Thursday, August 17, 1995)]
[Rules and Regulations]
[Pages 42772-42774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20355]
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944
[Docket No. FV95-932-1IFR]
Olives Grown in California and Imported Olives; Establishment of
Limited Use Olive Grade and Size Requirements During the 1995-96 Crop
Year
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule authorizes the use of smaller sized
olives in the production of limited use styles for California olives
during the 1995-96 crop year. This rule is intended to allow more
olives into fresh market channels and is consistent with current market
demand for olives. As required under section 8e of the Agricultural
Marketing Agreement Act of 1937, this rule also changes the import
regulation so that it conforms with the requirements established under
the California olive marketing order.
DATES: Effective August 21, 1995; comments received by September 18,
1995 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 in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box
96456, Washington, DC 20090-6456, or by facsimile at 202-720-5698. 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, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey
Street, suite 102-B, Fresno, CA 93721, telephone (209) 487-5901; or
Caroline C. Thorpe, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington,
DC 20090-6456; telephone (202) 720-5127.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 148 and Order No. 932 (7 CFR Part 932), as amended,
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.
This rule is also issued under section 8e of the Act, which
requires the Secretary of Agriculture to issue grade, size, quality, or
maturity requirements for certain listed commodities, including olives,
imported into the United States that are the same as, or comparable to,
those imposed upon the domestic commodities regulated under the Federal
marketing orders.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, 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 608(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 requesting 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after date of the entry of the ruling.
There are no administrative procedures which must be exhausted
[[Page 42773]]
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this action on
small entities.
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. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are 5 handlers of California olives who will be subject to
regulation under the order during the current season, and there are
about 1,200 olive producers in California. There are approximately 25
importers of olives subject to the olive import regulation. Small
agricultural producers have been defined by the Small Business
Administration (913 CFR 121.601) as those whose annual receipts are
less than $500,000; and small agricultural service firms, which
includes handlers and importers, have been defined by the Small
Business Administration as those having annual receipts of less than
$5,000,000. None of the domestic olive handlers may be classified as
small entities. The majority of olive producers and importers may be
classified as small entities.
Nearly all of the olives grown in the United States are produced in
California. California olives are primarily used for canned black ripe
whole and whole pitted olives which are eaten out of hand as hors
d'oeuvres or used as an ingredient in cooking and in salads. The canned
ripe olive market is essentially a domestic market. A few shipments of
California olives are exported.
Olive production has fluctuated from a low of 24,200 tons during
the 1972-73 crop year to a high of 163,023 tons during the 1992-93 crop
year. The California Olive Committee (committee) indicated that 1994-95
production totalled about 80,925 tons. Total production for the 1995-96
crop year is estimated to be 75,500 tons. This is the first time that
there have been two consecutive years of declining production. The
unprecedented and unusual rains, poor pollination, and cool weather
during the Spring of this year have resulted in a lower than normal
fruit crop set on the trees.
Olive trees generally need to restore their nutrients from one
season to the next, resulting in various varieties of olives produced
in California having alternate bearing characteristics. This may result
in high production one year and low the next, which can cause the total
crop to vary greatly from year to year.
Paragraph (a)(3) of Sec. 932.52 of the order provides that
processed olives smaller than the sizes prescribed for whole and whole
pitted styles may be used for limited use styles if recommended by the
committee and approved by the Secretary. The minimum sizes which can be
authorized for limited uses were established in a 1971 amendment to the
marketing order. Olives smaller than the prescribed minimum sizes which
are authorized for limited uses must be disposed of through less
profitable non-canning uses such as crushing for oil. Returns to
producers are lower on fruit used for such purposes. The use of smaller
sized olives for limited use styles has been authorized in all but two
crop years since the order was promulgated in 1965.
This rule will help growers and handlers meet the growing market
demand for limited use style olives based upon current conditions. This
demand can be illustrated in the record of shipments of sliced olives
in the previous three years. Shipments of one type of limited use style
fruit (sliced) totalled over 29,000 tons in the 1992-93 season, 34,000
tons in the 1993-94 season, and an estimated 30,000 tons in the 1994-95
season. The limited use size requirements allow the use of sizes which
would otherwise have to be disposed of for less profitable, non-canning
uses. Permitting the use of such smaller olives for limited use styles
would, therefore, improve grower returns.
On July 12, 1995, the committee recommended, by a unanimous vote,
establishment of grade and size regulations for limited use size olives
during the 1995-96 crop year pursuant to paragraph (a)(3) of
Sec. 932.52 of the order.
Based on past production and marketing experience, the committee
believes that handlers will need smaller sized olives during the 1995-
96 crop year to meet market demand for limited use styles of canned
olives. Limited use size olives are too small to meet the minimum size
requirements established for whole and whole pitted canned ripe olives.
However, they are large enough to be suitable for processing into
limited use styles such as wedges, halves, slices, or segments. Absent
this action, olives which are smaller than those authorized for whole
and whole pitted canning uses would have to be disposed of by handlers
into non-canning uses such as crushing into oil.
The specified sizes for the different olive variety groups are the
minimum sizes which are deemed desirable for use in the production of
limited use styles at this time. As in past years, permitting the use
of the smaller olives in the production of limited use styles allows
handlers to take advantage of the strong market for halved, segmented,
sliced, and chopped canned ripe olives. Handlers will be able to market
more olives than would be permitted in the absence of this relaxation
in size requirements.
Also, the committee estimates that production for this crop year is
expected to be at 75,500 tons, which is smaller than the previous two
seasons. The 1993-94 and 1994-95 crop years produced larger crops of
120,049 tons, and 80,925 tons, respectively.
During years with large olive crops, the ratio of limited use size
olives to other sizes tends to be higher; there may be more limited use
size olives in proportion to the other sizes. During years with small
olive crops, the ratio of smaller olives to other sizes tends to be
smaller; there may be fewer limited use size olives in proportion to
the other sizes. The increased availability of limited use size fruit
can be reflected in handler processing for the last three seasons. For
example, during the 1992-93 crop year, 19 percent of the olives (31,175
tons) received by handlers were classified as limited use sizes as
compared with 16 percent of the olives (19,465 tons) in 1993-94, and an
estimated 9 percent of the olives (7,047 tons) in 1994-95. Thus, due to
the poor pollination and sporadic fruit set of the 1995-96 crop, fewer
limited use size olives are expected to be available for harvest. The
percentage of limited use size olives available to handlers is,
therefore, expected to be smaller.
Section 8(e) of the Act requires that whenever grade, size,
quality, or maturity requirements are in effect for olives under a
domestic marketing order, imported olives must meet the same or
comparable requirements. This rule allows smaller olives for limited
use styles under the marketing order. Therefore, a corresponding change
is needed in the olive import regulation.
Canned ripe olives, and bulk olives for processing into canned ripe
olives, imported into the United States must meet certain minimum grade
and size
[[Page 42774]]
requirements specified in Olive Regulation 1 (7 CFR 944.401). All
canned ripe olives are required to be inspected and certified prior to
importation (release from custody of the United States Custom Service),
and all bulk olives for processing into canned ripe olives must be
inspected and certified prior to canning. ``Canned ripe olives'' means
olives in hermetically sealed containers and heat sterilized under
pressure, of two distinct types, ``ripe'' and ``green-ripe'', as
defined in the U.S. Standards for Grades of Canned Ripe Olives. The
term does not include Spanish-style green olives.
Any lot of olives failing to meet the import requirements may be
exported, disposed of, or shipped for exempt uses. Exportation or
disposal of such olives would be accomplished under the supervision of
the Processed Products Branch of the Fruit and Vegetable Division, with
the costs of certifying the disposal of the olives borne by the
importer. Exempt olives are those imported for processing into oil or
donation to charity. Any person may also import up to 100 pounds
(drained weight) of canned ripe olives or bulk olives exempt from these
grade and size requirements.
This interim final rule modifies paragraph (b)(12) of the olive
import regulation to authorize the importation of bulk olives which do
not meet the minimum size requirements established for olives for whole
and whole pitted uses to be used in the production of limited use
styles during the 1995-96 crop year.
Permitting the use of smaller olives in the production of limited
use styles will allow importers to better take advantage of the strong
market for halved, segmented, sliced, and chopped canned ripe olives.
Importers will be able to import and market more olives than would be
permitted in the absence of this relaxation in size requirements. This
additional opportunity is provided to maximize the use of the available
olive supply and facilitate market expansion. In the absence of this
rule, the smaller fruit could not be imported for limited uses, and
would have to be disposed of through less profitable, non-canning uses
under the supervision of the inspection service, exported, or utilized
in exempt outlets.
Based on these considerations, the Administrator of the AMS has
determined that this action will not have a significant economic impact
on a substantial number of small entities.
In accordance with section 8e of the Act, the U.S. Trade
Representative has concurred with the issuance of this interim final
rule.
After consideration of all relevant material presented, including
the committee's recommendation, and other available information, it is
found that this interim final 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 1995-96 crop year began August 1, 1995, and this rule
needs to become effective as soon as possible to cover as much as the
crop as possible; (2) this rule relaxes minimum size requirements; (3)
California olive handlers are aware of this rule as it was discussed
and unanimously recommended by the committee at a public meeting; and
(4) this rule provides a 30-day comment period and any comments
received will be considered prior to finalization of this rule.
List of Subjects
7 CFR Part 932
Marketing agreements, Olives, Reporting and recordkeeping
requirements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble 7 CFR parts 932 and 944
are amended as follows:
1. The authority citation for 7 CFR parts 932 and 944 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 932--OLIVES GROWN IN CALIFORNIA
2. In Sec. 932.153, the section heading and paragraphs (a), (b)
introductory text, and (b)(1) are revised to read as follows:
Sec. 932.153 Establishment of grade and size requirements for
processed 1995-96 crop year olives for limited uses.
(a) Grade. On and after August 1, 1995, any handler may use
processed olives of the respective variety group in the production of
limited use styles of canned ripe olives if such olives were processed
after July 31, 1995, and meet the grade requirements specified in
Sec. 932.52(a)(1) as modified by Sec. 932.149.
(b) Sizes. On and after August 1, 1995, any handler may use
processed olives in the production of limited use styles of canned ripe
olives if such olives were harvested during the period August 1, 1995,
through July 31, 1996, and meet the following requirements:
(1) The processed olives shall be identified and kept separate and
apart from any olives harvested before August 1, 1995, or after July
31, 1996.
* * * * *
PART 944--FRUITS; IMPORT REGULATIONS
3. In Sec. 944.401, paragraph (b)(12) introductory text is revised
to read as follows:
Sec. 944.401 Olive Regulation 1.
* * * * *
(b) * * *
(12) Imported bulk olives when used in the production of canned
ripe olives must be inspected and certified as prescribed in this
section. Imported bulk olives which do not meet the applicable minimum
size requirements specified in paragraphs (b)(2) through (b)(11) of
this section may be imported during the period August 1, 1995, through
July 31, 1996, for limited use, but any such olives so used shall not
be smaller than the following applicable minimum size:
* * * * *
Dated: August 11, 1995.
Terry C. Long,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-20355 Filed 8-16-95; 8:45 am]
BILLING CODE 3410-02-P
