[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22616]
[[Page Unknown]]
[Federal Register: September 13, 1994]
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 932 and 944
[Docket No. FV94-932-1IFR]
Olives Grown in California and Imported Olives; Establishment of
Limited Use Olive Requirements During the 1994-95 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 1994-95 crop year. This action 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 action also changes the import
regulation so that it conforms with the requirements established under
the California olive marketing order.
DATES: Effective September 16, 1994; comments received by October 13,
1994 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: 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, or 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.
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
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 that 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 [13 CFR Sec. 121.601] as those whose annual receipts are
less than $500,000, and small agricultural service firms, which include
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. The growing areas are scattered throughout California with
most of the commercial production coming from inland valleys. The
majority of olives are produced in central California. California
olives are primarily used for canned 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 1993-94
production totalled about 120,049 tons. Total production for the 1994-
95 crop year is estimated to be 95,000 tons. Because olive trees need
to restore their nutrients from one season to the next, various
varieties of olives produced in California have alternate bearing
tendencies. This results in high production one year and low the next,
which usually causes the total crop to vary greatly from year to year.
This crop year's estimated production is expected to be smaller than
last year due to weather conditions early in the season which resulted
in poor fruit pollination. However, based on past production and
marketing experience, the committee believes that handlers will need
smaller sized olives during the 1994-95 crop year to meet market demand
for limited use styles of canned olives. Limited use 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.
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 uses if recommended by the
committee and approved by the Secretary. Until October 1, 1991,
paragraph (a)(3) also prescribed minimum sizes, by variety group, which
could be authorized for use in the production of limited use styles by
the Secretary.
Effective October 1, 1991, certain non-canning size disposition
requirements specified in Sec. 932.51(a)(3) and minimum sizes
authorized for limited use specified in Sec. 932.52(a)(3) of the
marketing order were suspended. The committee may now recommend the use
of olives for limited uses that are smaller than those previously
permitted under the order. Minimum size and grade requirements may be
recommended annually by the committee and approved by the Secretary.
During the past three crop years, 1991-92, 1992-93, and 1993-94, the
committee recommended sizes smaller than those previously authorized.
The minimum sizes which could previously be authorized for limited
uses were established in a 1971 amendment to the marketing order.
Olives smaller than the prescribed minimum sizes which could be
authorized for limited uses had to 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 action will help growers and handlers to meet the growing
market demand for limited use style olives based upon current
conditions. 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 13, 1994, the committee recommended by a vote of 15-1, to
establish grade and size regulations for limited use size olives during
the 1994-95 crop year pursuant to paragraph (a)(3) of Sec. 932.52 of
the order. The one handler member who dissented was concerned that
approval of limited use size olives would be detrimental to handlers,
due to already large inventories of such olives from the two previous
seasons. The recommended grade and size requirements are the same as
those established during the 1990-91 crop year, which means slightly
larger minimum sizes than were in effect during the 1991-92, 1992-93,
and 1993-94 crop years.
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 allowed
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.
The committee also based its decision on certain production and
market factors. The last three crop years were the first crop years
that limited use olives were authorized at sizes below the 1990-91 crop
year minimum size requirements. Prior to the 1990-91 crop year, the
committee investigated limited use olives that were below permitted
minimum sizes. From investigations and surveys within the industry, the
committee determined that limited use olives below 1990-91 minimum
sizes could be efficiently sliced using current technology. However,
consumer interest in and need for such olives also had to be
determined, specifically for smaller sliced olive rings. Thus, minimum
size requirements below the 1990-91 crop year were recommended and
became effective for limited use olives.
During the following three seasons, the industry experienced a
higher percentage of broken pieces in the smaller olives than with the
slightly larger sizes. The U.S. Standards for Grades of Canned Ripe
Olives (Standards) define a broken piece as any piece of olive that is
less than three quarters of a full unit. This situation had a negative
impact on the California olive market as the extra broken pieces caused
customers to complain about the lack of uniformity and poorer quality
of product from these smaller sizes. Such olives also had to compete
with imported sliced olives that had fewer broken pieces. Therefore,
the committee recommended slightly larger minimum size requirements for
limited use olives in order to improve the quality of and enhance the
market for California limited use olives.
Also, the committee estimates that production for this crop year is
expected to be at 95,000 tons, which is smaller than the previous two
seasons. Weather conditions early in the crop year caused poor
pollination resulting in a smaller crop with an uneven distribution of
sizes. The 1992-93 and 1993-94 crop years produced large crops of
163,023 tons and 120,049 tons, respectively. During years with large
olive crops, the ratio of limited use olives to other sizes tends to be
higher; there are 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 is smaller; there tends to be fewer limited use
size olives in proportion to the other sizes. The increased
availability of limited use sized fruit could be reflected in handler
processing for the last three seasons. For example, during the 1992-93
crop year, 19 percent of the olives (163,024 tons) processed by
handlers were limited use, and during the 1991-92 crop year, 11 percent
of total olives (63,259 tons) processed by handlers were limited use.
Although limited use minimum sizes were larger during the 1990-91
season, limited use olive processed by handlers were 16 percent of
total olives (126,879 tons) purchased by handlers. Thus, unlike the two
previous seasons, fewer small limited use olives are expected to be
harvested this season. The percentage of limited use olives is expected
to be smaller. The slight increase in minimum limited use size
requirements being established for the 1994-95 season is therefore not
expected to greatly impact available supplies.
Thus, it is found that permitting limited use olives as recommended
by the committee is expected to improve market conditions, and grower
returns, and meet market needs for limited use style olives.
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 action 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 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 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 Standards. 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 1994-1995 crop year. This rule also establishes size
regulations for such olives in paragraph (b)(12).
The committee recommended to authorize establishment of minimum
sizes for use in the production of limited use styles during the 1994-
95 crop year. The sizes are specified in terms of minimum weights for
individual olives in various variety groups and are the same for both
domestic and imported olives. An extra category is continued in the
import regulation to apply comparable requirements for varieties not
grown domestically. The minimum sizes for import requirements are as
follows:
Variety Group 1, except the Ascolano, Barouni, or St. \1/90\ pound.
Agostino varieties.
Variety Group 1 of the Ascolano, Barouni, or St. \1/140\ pound.
Agostino varieties.
Variety Group 2, except the Obliza variety............ \1/180\ pound.
Variety Group 2 of the Obliza variety................. \1/140\ pound.
Olives not identifiable as to variety or variety group \1/180\ pound.
Each of the categories includes a 35 percent tolerance for olives
weighing less than the specified minimum size.
Permitting the use of smaller olives in the production of limited
use styles will allow importers to take better 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
action, 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 1994-95 crop year began August 1, 1994; (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 continue to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 932--OLIVES GROWN IN CALIFORNIA
2. Table II of Sec. 932.152 is revised to read as follows:
Sec. 932.152 Outgoing Regulations.
* * * * *
(g) * * *
(1) * * *
Table II.--Limited Use Size Olives
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Average count range (per
Variety pound)
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Group 1, except Ascolano, Barouni, and St. 76-90, inclusive.
Agostino.
Group 1, Ascolano, Barouni, and St. 106-140, inclusive.
Agostino.
Group 2, except Obliza..................... 141-180, inclusive.
Group 2, Obliza............................ 128-140, inclusive.
------------------------------------------------------------------------
* * * * *
3. Section 932.153 is revised to read as follows:
Sec. 932.153 Establishment of grade and size requirements for
processed 1994-95 crop year olives for limited uses.
(a) Grade. On and after August 1, 1994, 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, 1994, 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, 1994, 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, 1994,
through July 31, 1995, and meet the following requirements:
(1) The processed olives shall be identified and kept separate and
apart from any olives harvested before August 1, 1994, or after July
31, 1995.
(2) Variety Group 1 olives, except the Ascolano, Barouni, or St.
Agostino varieties, shall be of a size which individually weigh at
least \1/90\ pound: Provided, That no more than 35 percent of the
olives in any lot or sublot may be smaller than \1/90\ pound.
(3) Variety Group 1 olives of the Ascolano, Barouni, or St.
Agostino varieties shall be of a size which individually weigh at least
\1/140\ pound: Provided, That no more than 35 percent of the olives in
any lot or sublot may be smaller than \1/140\ pound.
(4) Variety Group 2 olives, except 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.
(5) Variety Group 2 olives of the Obliza variety shall be of a size
which individually weigh at least \1/140\ pound: Provided, That not to
exceed 35 percent of the olives in any lot or sublot may be smaller
than \1/140\ pound.
PART 944--FRUITS; IMPORT REGULATIONS
4. 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 during the period August 1, 1994, through
July 31, 1995, 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 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 \1/90\ pound (5
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 \1/140\ pound (3.2 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 \1/180\ pound (2.5 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 that \1/140\ pound (3.2 grams) each.
(v) Whole ripe olives not identifiable as to variety or variety
group of size that not more than 35 percent of olives, by count, may be
smaller than \1/180\ pound (2.5 grams) each.
* * * * *
Dated: September 8, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-22616 Filed 9-12-94; 8:45 am]
BILLING CODE 3410-02-P