[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Rules and Regulations]
[Pages 11937-11939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4807]



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  Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Rules 
and Regulations  

[[Page 11937]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 932

[Doc. No. AMS-FV-10-0115; FV11-932-1 IR]


Olives Grown in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule decreases the assessment rate established for the 
California Olive Committee (Committee) for 2011 and subsequent fiscal 
years from $44.72 to $16.61 per ton of olives handled. The Committee 
locally administers the marketing order which regulates the handling of 
olives grown in California. Assessments upon olive handlers are used by 
the Committee to fund reasonable and necessary expenses of the program. 
The fiscal year began January 1 and ends December 31. The assessment 
rate will remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective March 5, 2011. Comments received by May 3, 2011, 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 to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register and will 
be available for public inspection in the Office of the Docket Clerk 
during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Jeff Smutny, Marketing Specialist, or 
Kurt J. Kimmel, Regional Manager, California Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This 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 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.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, California 
olive handlers are subject to assessments. Funds to administer the 
order are derived from such assessments. It is intended that the 
assessment rate as issued herein will be applicable to all assessable 
olives beginning on January 1, 2011, and continue until amended, 
suspended, or terminated.
    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 USDA 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. Such 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA 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 USDA'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 rule decreases the assessment rate established for the 
Committee for the 2011 and subsequent fiscal years from $44.72 to 
$16.61 per ton of olives.
    The California olive marketing order provides authority for the 
Committee, with the approval of USDA, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers and handlers of 
California olives. They are familiar with the Committee's needs and 
with the costs for goods and services in their local area and are thus 
in a position to formulate an appropriate budget and assessment rate. 
The assessment rate is formulated and discussed in a public meeting. 
Thus, all directly affected persons have an opportunity to participate 
and provide input.
    For the 2010 and subsequent fiscal years, the Committee 
recommended, and USDA approved, an assessment rate of $44.72 per ton of 
olives that would continue in effect from year to year unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on December 15, 2010, and unanimously recommended 
2011 expenditures of $2,203,909 and an assessment rate of $16.61 per 
ton of olives. In comparison, last year's budgeted expenditures were 
$929,923. The assessment rate of $16.61 is $28.11 per ton lower than 
the rate currently in effect.
    The Committee recommended the lower assessment rate because of a 
substantial increase in olive volume for the 2011 fiscal year. The 
olive volume available for fiscal year 2011 as reported

[[Page 11938]]

by the California Agricultural Statistics Service (CASS) is 164,984 
tons, which compares to 23,033 tons reported for the 2010 fiscal year.
    The major expenditures recommended by the Committee for the 2011 
fiscal year include $1,093,009 for Research Programs, $700,000 for 
Marketing Programs, $335,900 for General Administration, and $75,000 
for Inspection Equipment Development. Budgeted expenses for these items 
in 2010 were $300,000, $255,000, $324,923, and $50,000, respectively.
    The assessment rate recommended by the Committee was derived by 
considering anticipated fiscal year expenses, actual olive tonnage 
received by handlers for the 2011 fiscal year, and additional pertinent 
factors. Actual assessable tonnage for the 2011 fiscal year is expected 
to be lower than the 164,984 tons reported by CASS because some olives 
may be diverted by handlers to uses that are exempt from marketing 
order requirements. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserve will 
be adequate to cover budgeted expenses. Funds in the reserve will be 
kept within the maximum permitted by the order of one fiscal year's 
expenses (Sec.  932.40).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate is effective for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal year to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of Committee meetings are available from the Committee or USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2011 budget and those for 
subsequent fiscal years will be reviewed and, as appropriate, approved 
by USDA.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this initial 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 1,000 producers of California olives in the 
production area and 2 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (SBA) (13 CFR 121.201) as those having annual 
receipts of less than $750,000, and small agricultural service firms 
are defined as those whose annual receipts are less than $7,000,000.
    Based upon information from the industry and CASS, the average 
grower price for 2010 was approximately $811 per ton and total grower 
production was around 165,000 tons. Based on production, producer 
prices, and the total number of California olive producers, the average 
annual producer revenue is less than $750,000. Thus, the majority of 
olive producers may be classified as small entities. Both of the 
handlers may be classified as large entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2011 and subsequent 
fiscal years from $44.72 to $16.61 per ton of olives. The Committee 
unanimously recommended 2011 expenditures of $2,203,909 and an 
assessment rate of $16.61 per ton. The recommended assessment rate of 
$16.61 is $28.11 lower than the 2010 rate. Income generated from the 
$16.61 per ton assessment rate should be adequate to meet this year's 
expenses when combined with funds from the authorized reserve and 
interest income.
    The major expenditures recommended by the Committee for the 2011 
fiscal year include $1,093,009 for Research Programs, $700,000 for 
Marketing Programs, $335,900 for General Administration, and $75,000 
for Inspection Equipment Development. Budgeted expenses for these items 
in 2010 were $300,000, $255,000, $324,923, and $50,000, respectively.
    The Committee recommended the lower assessment rate because of a 
substantial increase in olive volume for the 2011 fiscal year. The 
olive volume available for fiscal year 2011 as reported by CASS is 
164,984 tons, as compared to 23,033 tons reported for the 2010 fiscal 
year.
    The Committee reviewed and unanimously recommended 2011 
expenditures of $2,203,909, which included increases in administrative 
expenses, marketing programs, equipment development and research 
programs. Prior to arriving at this budget, the Committee considered 
information from various sources, such as the Executive Subcommittee, 
Marketing Subcommittee, Inspection Subcommittee and the Research 
Subcommittee. Alternative expenditure levels were discussed by these 
groups, based upon the relative value of various projects to the olive 
industry. The assessment rate of $16.61 per ton of assessable olives 
was derived by considering anticipated expenses, the volume of 
assessable olives, and additional pertinent factors.
    A review of historical information and preliminary information 
indicates that grower price could range between approximately $811 per 
ton and $1,105 per ton. Therefore, the estimated assessment revenue for 
the 2011 fiscal year as a percentage of total grower revenue could 
range between 1.5 and 2 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. In addition, the Committee's meeting was widely 
publicized throughout the California 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 December 
15, 2010, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue. Finally, interested 
persons are invited to submit information on this interim rule, 
including the regulatory and informational impacts of this action on 
small businesses.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large California 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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen

[[Page 11939]]

access to Government information and services, and for other purposes.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrderSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Antoinette Carter at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant material 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.
    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 2011 fiscal year began on January 1, 2011, 
and the marketing order requires that the rate of assessment for each 
fiscal year apply to all assessable olives handled during such fiscal 
year; (2) this action decreases the assessment rate for assessable 
olives beginning with the 2011 fiscal year; (3) handlers are aware of 
this action, which was unanimously recommended at a public meeting, and 
is similar to other assessment rate actions issued in past years; and 
(4) this interim rule provides a 60-day comment period, and all 
comments timely received will be considered prior to finalization of 
this rule.

List of Subjects in 7 CFR Part 932

    Olives, Marketing agreements, 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

0
1. The authority citation for 7 CFR part 932 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.


0
2. Section 932.230 is revised to read as follows:


Sec.  932.230  Assessment rate.

    On and after January 1, 2011, an assessment rate of $16.61 per ton 
is established for California olives.

    Dated: February 25, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-4807 Filed 3-3-11; 8:45 am]
BILLING CODE 3410-02-P