[Federal Register Volume 59, Number 217 (Thursday, November 10, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27920]
Federal Register / Vol. 59, No. 217 / Thursday, November 10, 1994 /
[[Page Unknown]]
[Federal Register: November 10, 1994]
VOL. 59, NO. 217
Thursday, November 10, 1994
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 932 and 944
[Docket No. FV94-932-1FIR]
Olives Grown in California and Imported Olives; Final Rule
Establishing Limited Use Olive Requirements During the 1994-95 Crop
Year
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule without change, the provisions of an interim final rule
which authorized the use of smaller sized olives in the production of
limited use styles for California olives during the 1994-95 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 olive import regulation.
EFFECTIVE DATE: December 12, 1994.
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 requirements imposed upon the domestic commodities regulated
under the Federal marketing orders.
The 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 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 final rule finalizes an interim final rule that 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 with this relaxation in size requirements than under
regulations effective prior to the interim final rule.
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 olives 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 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 final rule finalizes an interim final rule that modified
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 finalizes establishment of size regulations
for such olives in paragraph (b)(12).
The committee recommended authorizing 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. Agostino
varieties--\1/90\ pound
Variety Group 1 of the Ascolano, Barouni, or St. Agostino varieties--
\1/140\ pound
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.
Continuing to permit 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 under regulations prior to the interim final rule
that relaxed size requirements. This additional opportunity is provided
to maximize the use of the available olive supply and facilitate market
expansion. Prior to the interim final 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 final rule.
After consideration of all relevant material presented, including
the committee's recommendation, and other available information, it is
found that this final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
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
Accordingly, the interim final rule amending 7 CFR Part 932 which
was published at 59 FR 46907 on September 13, 1994, is adopted as a
final rule without change.
PART 944--FRUITS; IMPORT REGULATIONS
Accordingly, the interim final rule amending 7 CFR Part 944 which
was published at 59 FR 46907 on September 13, 1994, is adopted as a
final rule without change.
Dated: November 4, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-27920 Filed 11-9-94; 8:45 am]
BILLING CODE 3410-02-P