[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Rules and Regulations]
[Pages 40507-40510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19855]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944
[Docket No. FV96-932-3IFR]
Olives Grown in California and Imported Olives; Establishment of
Limited-Use Style Olive Grade and Size Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule authorizes the use of smaller olives
in the production of limited-use styles for California olives. This
rule is intended to help the California olive industry meet the
increasing market needs for limited-use style olives by allowing more
olives into market channels. It is expected that such increased use of
olives will increase returns to growers.
[[Page 40508]]
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 8, 1996; comments received by September 4, 1996
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,
D.C. 20090-6456; telephone (202) 720-5127. Small businesses may request
information on compliance with this regulation by contacting: Jay
Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, D.C.
20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698.
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 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 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 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.
There are no administrative procedures which must be exhausted
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 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 are 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 Sec. 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.
This rule provides that smaller olives may be used in the
production of limited-use styles (sliced, wedged, halved, or chopped)
and will assist the California olive industry as well as importers meet
increasing market needs for such olives. Annual domestic shipment data
for olives indicates that for the last 5 seasons (1991 to 1995),
limited use style shipments ranged from 35 percent to 41 percent of
total annual domestic shipments. Absent this rule, many smaller
California olives would have to be disposed of in less profitable, non-
canning uses, and the smaller olives from other countries could not be
imported into the United States. Both the California olive industry and
olive importers should, thus, benefit from the issuance of this rule.
Based on these considerations, the AMS has determined that this
action will not have a significant economic impact on a substantial
number of small entities. Interested persons are invited to submit
information on the regulatory and informational impacts of this action
on small businesses.
Nearly all of the olives grown in the United States are produced in
California. California olives are used for canned black ripe whole and
whole pitted olives which are eaten out of hand as hors d'oeuvres or
sliced, wedged, halved, or chopped styles 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), responsible for local
administration of the order, indicated that total production for the
1995-96 crop year was 73,648 tons. While there is no estimate yet
available for the 1996-97 crop, it is expected to be larger than the
1995-96 crop. Olive trees are subject to 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
[[Page 40509]]
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. The use of smaller olives for
limited-use styles has been authorized in all but two crop years since
the order was amended in 1971.
Under the marketing order, olives smaller than the prescribed
minimum sizes which are authorized for limited uses must be disposed of
in less-profitable, non-canning uses such as in frozen or acidified
forms, or crushed for oil. Returns to producers are lower on fruit used
for such purposes.
On June 13, 1996, the committee recommended, by a unanimous vote,
establishment of quality and size regulations for limited-use size
olives on a continuing basis pursuant to paragraph (a)(3) of
Sec. 932.52 of the order. This rule authorizes the use of additional
olives for limited-use styles by relaxing the minimum sizes and making
more olives available to handlers for limited-use styles.
The minimum sizes authorized for limited-use styles by this rule
are smaller than those in effect last year, but are the same as those
in effect for the 1991-92, 1992-93, and 1993-94 crop years.
The minimum sizes were reduced for the 1991-92 season after handler
tests during the 1990-91 crop year confirmed the feasibility of using
such fruit in limited-use styles. However, the minimum sizes for
limited-use styles were increased slightly for the 1994-95 season to
their previous levels. At that time, the handlers reported that the use
of certain smaller olives in limited-use styles resulted in greater
percentages of broken slices, wedges, and halves. The inconsistencies
of the product, especially sliced olives, were not favored by the
handlers' customers, and the committee recommended that use of these
smaller olives for limited-use styles be discontinued. At its recent
meeting, the committee recommended that limited-use sizes include the
sizes authorized prior to the 1994-95 season.
There have been substantial changes to olive pitting and slicing
equipment since the 1993-94 season. New machinery yields a greater
percentage of unbroken slices, wedges, and halves by making such
slices, wedges, and halves thicker and less likely to break. The new
equipment also eliminates the problem of double-feeding, in which the
pitter's feed wheel sends not one, but two, olives into the same
pitting chamber, leaving one of the two olives unpitted. Because of
these advances in the pitting and slicing equipment, the committee
believes that undersized olives may again be utilized in limited-use
styles effectively and to the satisfaction of the handlers' customers.
This rule will help growers and handlers meet the increasing market
demand for limited-use style olives based upon current conditions. This
demand can be illustrated in the increasing shipments of sliced olives
in the previous three years. Shipments of sliced olives increased by
17.11 percent from the 1991-92 season to the 1992-93 season and by an
additional 14.5 percent from the 1992-93 season to the 1993-94 season.
According to handlers, such shipments continue to increase. 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 and help handlers meet the increasing
demand for limited-use style olives.
The authority for limited-use size olives has been subject to an
annual reconsideration by the committee since first authorized in 1971.
The committee now believes that making the authority for limited-use
sizes continuous rather than annual will provide handlers an
opportunity to plan for and develop new markets, thereby increasing the
market share of domestically-produced olives. Such increased production
of limited-use styles is expected to increase returns to growers.
Based on past production and marketing experience, the committee
believes that handlers will need smaller olives to meet market demand
for limited-use styles of canned olives. The committee also believes
that handlers will need the smaller olives on a continuing basis to
meet market demand for limited-use styles of canned olives.
To effectuate this change, Sec. 932.153 of the order's rules and
regulations is being revised. The committee recommended that these new
minimum sizes become effective August 1, 1996, the beginning of the new
crop year.
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. 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 in frozen or
acidified forms, and crushed for 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 smaller olives in the production of limited-use styles will allow
handlers to take advantage of the strong market for sliced, wedged,
halved, and chopped olives. By permitting the use of such olives,
handlers will be able to market more olives than would be permitted in
the absence of this relaxation in size requirements, thus increasing
returns to growers.
Although these limited-use sizes are effective for an indefinite
period, the committee will continue to meet prior to or during each
crop year to consider recommendations for modification of these
limited-use sizes. The dates and times of committee meetings are
available from the committee or the Department. Committee meetings are
open to the public and interested persons may express their views at
these meetings. The Department will evaluate the Committee's
recommendations and other available information to determine whether
modification of the limited-use sizes is needed. Further rulemaking
will be undertaken as necessary.
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 to be used in
the production of 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
quality and size requirements specified in Olive Regulation 1 (7 CFR
Sec. 944.401). All canned ripe olives are required to be inspected and
certified prior to importation (release from custody of the United
States Customs 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
[[Page 40510]]
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 quality 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. Such authority would be on a continuing basis, rather than on
an annual basis, as has been done in previous years.
This interim final rule also modifies paragraphs (b)(12)(i) through
(b)(12)(v) by relaxing the minimum sizes of olive permitted to be
imported for limited use.
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 sliced, wedged, halved, and chopped style olives. Importers
will be able to import and market more olives than would be permitted
in the absence of this relaxation in size requirements.
The two largest exporters of ripe and bulk olives to the United
States are Spain and Mexico, respectively. Imports comprise
approximately 50 percent of total annual U.S. consumption.
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 1996-97 crop year begins on August 1, 1996, and this
rule needs to become effective as soon as possible to cover as much of
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 recommended 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. Section 932.153 is revised to read as follows:
Sec. 932.153 Establishment of grade and size requirements for
processed olives for limited uses.
(a) Grade. On and after August 1, 1996, 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, 1996, and meet the grade requirements specified in
paragraph (a)(1) of Sec. 932.52 as modified by Sec. 932.149.
(b) Sizes. On and after August 1, 1996, any handler may use
processed olives in the production of limited-use styles of canned ripe
olives if such olives were harvested after August 1, 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, 1996.
(2) Variety Group 1 olives, except the Ascolano, Barouni, or St.
Agostino varieties, shall be of a size which individually weigh at
least \1/105\ pound: Provided, That no more than 35 percent of the
olives in any lot or sublot may be smaller than \1/105\ pound.
(3) Variety Group 1 olives of the Ascolano, Barouni, or St.
Agostino varieties shall be of a size which individually weigh at least
\1/180\ pound: Provided, That no more than 35 percent of the olives in
any lot or sublot may be smaller than \1/180\ pound.
(4) Variety Group 2 olives, except the Obliza variety, shall be of
a size which individually weigh at least \1/205\ pound: Provided, That
not to exceed 35 percent of the olives in any lot or sublot may be
smaller than \1/205\ pound.
(5) Variety Group 2 olives of the Obliza variety shall be of a size
which individually weigh at least \1/180\ pound: Provided, That not to
exceed 35 percent of the olives in any lot or sublot may be smaller
than \1/180\ pound.
PART 944--FRUITS; IMPORT REGULATIONS
3. Section 944.401 is amended by revising paragraph (b)(12) 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 after August 1, 1996, for limited-use, but
any such olives so used shall not be smaller than the following
applicable minimum size:
(i) Whole ripe olives of Variety Group 1, except Ascolano, Barouni,
or St. Agostino varieties, of a size that not more than 35 percent of
the olives, by count, may be smaller than \1/105\ pound (4.3 grams)
each.
(ii) Whole ripe olives of Variety Group 1 of the Ascolano, Barouni,
or St. Agostino varieties, of a size that not more than 35 percent of
the olives, by count, may be smaller than \1/180\ pound (2.5 grams)
each.
(iii) Whole ripe olives of Variety Group 2, except the Obliza
variety, of a size that not more than 35 percent of the olives, by
count, may be smaller than \1/205\ pound (2.2 grams) each.
(iv) Whole ripe olives of Variety Group 2 of the Obliza variety of
a size that not more than 35 percent of the olives, by count, may be
smaller than \1/180\ pound (2.5 grams) each.
(v) Whole ripe olives not identifiable as to variety or variety
group of a size that not more than 35 percent of olives, by count, may
be smaller than \1/205\ pound (2.2 grams) each.
* * * * *
Dated: July 31, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-19855 Filed 8-2-96; 8:45 am]
BILLING CODE 3410-02-P
