[Federal Register Volume 65, Number 204 (Friday, October 20, 2000)]
[Rules and Regulations]
[Pages 62992-62994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27082]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 932

[Docket No. FV00-932-3 FR]


Olives Grown in California; Modification to Handler Membership on 
the California Olive Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule modifies the handler membership on the California 
Olive Committee (Committee). The Committee locally administers the 
California olive marketing order (order) which regulates the handling 
of olives grown in California. The Committee is composed of 16 industry 
members of which 8 are producers and 8 are handlers. Current handler 
representation on the Committee provides that the two handlers who 
handled the largest and second largest total volume of olives during 
the crop year in which nominations were made and in the preceding crop 
year shall be represented by three members and alternate members each, 
and that the remaining handler shall be represented by two members and 
alternate members. Recently, one of the handlers indicated that it was 
exiting the business, and no longer desired to serve on the Committee. 
This rule reallocates handler membership and enables the Committee to 
operate at full strength.

EFFECTIVE DATE: October 23, 2000.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, Marketing Specialist, 
California Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, 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, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491; Fax: (202) 720-5698.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-5698, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Agreement No. 148 and 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 rule in 
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action is not intended to have retroactive 
effect. This final 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 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 final rule modifies the order's administrative rules and 
regulations regarding the structure of handler membership on the 
Committee. The change in structure was unanimously recommended by the 
Committee.
    Section 932.25 of the order provides for the establishment of the 
Committee to locally administer the terms and provisions of the order. 
The Committee is composed of 16 industry members, each with an 
alternate. Of the 16 industry members, 8 are producers and 8 are 
handlers. This section also specifies how the handler membership on the 
Committee is allocated. Authority is provided for the Committee, with 
the approval of the Secretary, to change the allocation of both 
producer and handler members as may be necessary to assure equitable 
representation.
    Based on this authority, Sec. 932.159 of the administrative rules 
and regulations currently provides that the two handlers who handled 
the largest and second largest total volume of olives during the crop 
year in which nominations were made and in the preceding crop year 
shall be represented by three members and alternate members each, and 
the remaining handler shall be represented by two members and alternate 
members. This reallocation was implemented in January of 1999 (64 FR 
4286) with an interim final rule. Comments were invited until March 29, 
1999. The interim final rule was adopted without change in a final rule 
in April of 1999 (64 FR 23009).
    The structure of the olive industry has changed over the years and 
the number of handlers, both cooperative and independent (or handlers 
not affiliated with a cooperative marketing organization), has 
decreased. At one time, there were a number of cooperative marketing 
organizations and independent handlers and the

[[Page 62993]]

Committee's structure was designed so that four of the eight handler 
seats were held by cooperatives and four were held by independents. 
This representation was also weighted by the volume of olives handled 
so that if one group, either cooperatives or independents, handled 65 
percent or more of the total industry's volume handled during the 
nominating crop year and the preceding crop year, that group would have 
five seats on the Committee and the other group would have three seats.
    In 1993, handler membership on the Committee was reallocated to 
reflect changes within the handler segment of the industry. The number 
of industry handlers declined to only five handlers--one cooperative 
and four independents. At that time, Sec. 932.159 of the order's rules 
and regulations was modified to reapportion handler membership to 
provide cooperative handlers with two seats on the Committee and 
independent handlers with six seats.
    When the number of handlers declined to one cooperative and two 
independent handlers, and restrictions on handler affiliation resulted 
in two vacant handler positions on the Committee, changes on handler 
allocation were implemented to allow those positions to be filled and 
to enable the Committee to operate at full strength. Section 932.159 
was revised (64 FR 4286, January 28, 1999; 64 FR 23009, April 29, 1999) 
to eliminate the distinction between cooperative marketing 
organizations and independent handlers and Sec. 932.160 on handler 
affiliation was removed. The eight handler seats on the Committee were 
reallocated based on the total volume of olives handled during the crop 
year in which nominations are made and the preceding crop year, with 
the handlers handling the first and second largest volume being 
represented by three members each, and the remaining handler being 
represented by two members.
    Recently, one handler in the industry indicated that it was exiting 
the business, will no longer be handling olives after it markets its 
old crop inventory, and, that it no longer desired to serve on the 
Committee. The Committee met and unanimously recommended modifying the 
rules and regulations to reallocate handler membership equally between 
the two other handlers. Each handler will be represented by four 
handlers and four alternates. This rule modifies the Committee's 
handler membership to enable the Committee to operate at full strength; 
i.e., with the eight handler and eight producer positions filled.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this final rule on small entities. Accordingly, AMS 
has prepared this final 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 of California olives who are subject to 
regulation under the marketing order and approximately 1,200 olive 
producers in the regulated area. One of these handlers informed the 
Committee that it plans to exit the industry, and will no longer be 
handling olives after it markets its old crop inventory. Small 
agricultural service firms have been defined by the Small Business 
Administration (13 CFR 121.201) 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.
    A review of historical and preliminary information pertaining to 
the 1999-00 crop year (August 1 through July 31) indicates that total 
grower revenue for the 1999 crop will be approximately $39,500,000, and 
the average grower revenue will be approximately $33,000. Thus, it can 
be concluded that the majority of producers of California olives may be 
classified as small entities.
    This rule modifies the rules and regulations of the olive order 
regarding the structure of handler membership on the Committee. Section 
932.25 of the order provides for the establishment of the Committee to 
locally administer the terms and provisions of the order. The Committee 
is composed of 16 industry members, each with an alternate. Of the 16 
industry members, 8 are producers and 8 are handlers. This section also 
specifies how the handler membership on the Committee is allocated. 
Authority is provided for the Committee, with the approval of the 
Secretary, to change the allocation of both producer and handler 
members as may be necessary to assure equitable representation.
    Section 932.159 of the administrative rules and regulations 
provides that the two handlers who handled the largest and second 
largest total volume of olives during the crop year in which 
nominations were made and in the preceding crop year shall be 
represented by three members and alternate members each, and the 
remaining handler shall be represented by two members and alternate 
members.
    The structure of the olive industry has changed over the years and 
the number of handlers, both cooperative and independent, has 
decreased. At one time, there were a number of cooperative marketing 
organizations and independent handlers and the Committee's structure 
was designed so that four of the eight handler seats were held by 
cooperatives and four were held by independents. This representation 
was also weighted by the volume of olives handled so that if one group, 
either cooperatives or independents, handled 65 percent or more of the 
total industry's volume handled during the nominating crop year and the 
preceding crop year, that group would have five seats on the Committee 
and the other group would have three seats.
    In 1993, handler membership on the Committee was reallocated to 
reflect changes within the industry. The number of industry handlers 
declined to only five handlers--one cooperative and four independents. 
At that time, Sec. 932.159 of the order's rules and regulations was 
modified to reapportion handler membership to provide cooperative 
handlers with two seats on the Committee and independent handlers with 
six seats.
    When the number of handlers declined to one cooperative and two 
independent handlers, and restrictions on handler affiliation resulted 
in two vacant handler positions on the Committee, changes on handler 
allocation were implemented to allow these positions to be filled and 
to enable the Committee to operate at full strength. Section 932.159 
was revised (64 FR 4286, January 28, 1999; 64 FR 23009, April 29, 1999) 
to eliminate the distinction between cooperative marketing 
organizations and independent handlers and Sec. 932.160 on handler 
affiliation was removed. The eight handler seats on the Committee were 
reallocated based on the total volume of olives handled during the crop 
year in which nominations are made and the preceding crop year, with 
the handlers handling the first and second largest volume being 
represented by three members each, and the remaining handler being 
represented by two members.
    Recently, one of the handlers indicated that it was exiting the

[[Page 62994]]

business, will no longer be handling olives after it markets its old 
crop inventory, and that it no longer desired to serve on the 
Committee. The Committee unanimously recommended modifying the rules 
and regulations to reallocate handler membership equally between two 
handlers with each handler represented by four members and four 
alternates. This rule enables the Committee to operate at full 
strength; i.e., with the eight handler and eight producer positions 
filled.
    One alternative to this rule discussed at the meeting was to leave 
the language in Sec. 932.159 unchanged; however, the current language 
is no longer appropriate. The current language specifies that the two 
handlers who handled the largest and second largest volume of olives 
during the crop year in which nominations are made and in the preceding 
crop year shall be represented by three members and alternate members 
each, and that the remaining handler shall be represented by two 
members and two alternate members. Since one of the remaining handlers 
no longer desires to serve on the Committee, the language concerning 
the two seats allocated to the third handler is no longer appropriate. 
Therefore, the Committee recommended that handler membership be 
reallocated equally between two handlers and that each handler be 
represented by four members and four alternate members.
    This final rule will not impose any additional reporting or 
recordkeeping requirements on either of the two olive 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. In addition, the 
Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    Further, the Committee's meeting was widely publicized throughout 
the olive industry and all interested persons were invited to attend 
the meeting and participate in Committee deliberations on all issues. 
Like all Committee meetings, the meeting at which the recommendation 
was made was a public meeting and all entities, both large and small, 
were able to express their views on this issue. All of the industry 
handlers currently represented on the Committee participated in the 
deliberations. Finally, interested persons were invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses.
    A proposed rule concerning this action was published in the Federal 
Register on September 11, 2000 (65 FR 54818). Copies of the rule were 
mailed or sent via facsimile to all Committee members and olive 
handlers. Finally, the rule was made available through the Internet by 
the Office of the Federal Register. A 30-day comment period ending 
October 11, 2000, was provided to allow interested persons to respond 
to this proposal. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following website: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant matter presented, including the 
information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C.) because the two vacant handler member seats 
on the Committee should be filled as soon as possible, so that the 
Committee can operate at full strength. Further, handlers are aware of 
this rule, which was recommended at a public meeting. Also, a 30-day 
comment period was provided for in the proposed rule and no comments 
were received.

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 
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. Section 932.159 is revised to read as follows:


Sec. 932.159  Reallocation of handler membership.

    Pursuant to Sec. 932.25, handler representation on the Committee is 
reallocated to provide that the two handlers who handled the largest 
and second largest total volume of olives during the crop year in which 
nominations are made and in the preceding crop year shall each be 
represented by four members and four alternate members.

    Dated: October 17, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-27082 Filed 10-17-00; 5:09 pm]
BILLING CODE 3410-02-P