[Federal Register Volume 85, Number 39 (Thursday, February 27, 2020)]
[Proposed Rules]
[Pages 11312-11315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03893]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 39 / Thursday, February 27, 2020 /
Proposed Rules
[[Page 11312]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 932
[AMS-SC-19-0081; SC-19-932-2]
Olives Grown in California; Proposed Amendments to the Marketing
Order No. 932 and Referendum Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
-----------------------------------------------------------------------
SUMMARY: This rulemaking proposes amendments to Marketing Order No.
932, which regulates the handling of olives grown in California. The
proposed amendments would change the California Olive Committee's
(Committee) quorum requirements. In addition, USDA is proposing a
clarifying change stating that alternate members acting as members to
form a quorum would also be eligible to cast votes.
DATES: The referendum will be conducted from March 9 through March 20,
2020. The representative period for the referendum is August 1 through
July 31, 2019.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Senior Marketing
Specialist, or Andrew Hatch, Chief, Rulemaking Services Branch,
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-
0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
[email protected] or [email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or email: [email protected].
SUPPLEMENTARY INFORMATION: This proposal, pursuant to 5 U.S.C. 553,
proposes amendments to regulations issued to carry out a marketing
order as defined in 7 CFR 900.2(j). This proposal is issued under
Marketing Order No. 932, as amended (7 CFR part 932), regulating the
handling of olives grown in California. Part 932 (referred to as 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.'' Section 608c(17) of the Act and the applicable procedural
requirements governing the formulation of marketing agreements and
orders (7 CFR part 900) authorize amendment of the Order through this
informal rulemaking action.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Orders 13563 and 13175. This action falls
within a category of regulatory actions that the Office of Management
and Budget (OMB) exempted from Executive Order 12866 review.
Additionally, because this proposed rule does not meet the definition
of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs' '' (February 2, 2017).
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This proposed rule is not intended to have retroactive
effect. This proposed rule would not preclude, preempt, or supersede
any State program covering olives grown in California.
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. A
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 no later than 20 days after the date of
entry of the ruling.
Section 1504 of the Food, Conservation, and Energy Act of 2008
(2008 Farm Bill) (Pub. L. 110-246) amended section 608c(17) of the Act,
which in turn required the addition of supplemental procedural
requirements to 7 CFR part 900 (73 FR 49307; August 21, 2008). The
amendment of section 608c(17) of the Act and additional supplemental
procedural requirements authorize the use of informal rulemaking (5
U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing
agreements and orders. USDA may use informal rulemaking to amend
marketing orders based on the nature and complexity of the proposed
amendments, the potential regulatory and economic impacts on affected
entities, and any other relevant matters.
AMS has considered these factors and has determined that the
amendments proposed are not unduly complex and the nature of the
proposed amendments is appropriate for utilizing the informal
rulemaking process to amend the Order. A discussion of the potential
regulatory and economic impacts on affected entities is discussed later
in the ``Final Regulatory Flexibility Analysis'' section of this
proposed rule.
The Committee unanimously recommended the amendments following
deliberations at a public meeting held on July 29, 2019. The proposed
action would amend the Order by changing the Committee's quorum
requirements. USDA is proposing an additional clarifying change to the
Order's quorum requirements by stating that alternate members acting as
members to form a quorum would also be eligible to cast votes. In
addition to these proposals, USDA proposes to make any additional
changes to the Order as may be necessary to conform to any amendment
that may result from this rulemaking action.
A proposed rule soliciting comments on the proposed amendments was
issued on November 1, 2019 and published in the Federal Register on
November 6, 2019 (84 FR 59736). No comments were received. AMS will
[[Page 11313]]
conduct a grower referendum to determine support for the proposed
amendments. If appropriate, a final rule will then be issued to
effectuate the amendments favored by growers in the referendum.
The Committee's proposed amendments would amend the Order by
removing the requirement of having five producer members and five
handler members in attendance to form a quorum and clarify that
alternate members acting as members could satisfy the quorum
requirement. USDA is proposing a clarifying change to the Order's
quorum requirements by stating that alternate members acting as members
to form a quorum would also be eligible to cast votes.
Proposal--Quorum Requirement
Section 932.25 establishes the Committee, with 16 members (eight
producer members and eight handler members) and further allows the
Committee to be increased by a public member (who is not to be a
producer or handler of olives nor an officer, employee or director of
any producer or handler of olives) for a potential total of 17 members.
In addition, this section requires that each member has an alternate
who meets the same qualifications as the member. The Committee
currently operates with 17 members and 17 alternate members.
Section 932.30 further states that each alternate member shall act
in the place and stead of such member (a) during such member's absence,
and (b) in the event of such member's removal, resignation,
disqualification or death, until a successor for such member's
unexpired term has been selected and has qualified.
Section 932.36 establishes the Committee's quorum requirements.
Current requirements state that a quorum must consist of at least 10
members of whom at least five must be producer members and at least
five must be handler members and, if the Committee is increased by the
addition of a public member, a quorum must consist of at least 11
members of which at least five must be producer members and at least
five must be handler members. Given that the Committee currently has a
public member, a quorum of 11 members of which five must be producers
and five must be handlers is required.
This proposed action would amend Sec. 932.36 by removing the
requirement of having five producer members and five handler members in
attendance to form a quorum. The proposed modified language would
define a quorum as consisting of at least 10 members and, if the
committee is increased by the addition of a public member, a quorum
would consist of at least 11 members.
The proposed modification would also clarify that alternate members
acting as members could satisfy the quorum requirement. The Committee's
recommended amendment, that would modify the second sentence of the
current Sec. 932.36, adds a phrase recognizing that alternate members
who are serving in place of an absent member should be counted as full
Committee members in the context of constituting a quorum. This
proposed phrase reiterates the authority of alternate members as
specified in Sec. 932.30.
For clarity and consistency, USDA proposes adding the same phrase
to the first sentence of Sec. 932.36. The proposed revision to the
sentence would read as follows: ``Decisions of the committee shall be
by majority vote of the members, including alternates acting as
members, present and voting, and a quorum must be present: . . .'' This
proposed additional revision would clarify that alternate members
acting as members could not only fulfill quorum requirements, but they
would also be able to vote as members on matters of Committee business
in the absence of their member.
Since promulgation of the Order in 1965, the California olive
industry has seen reductions of 64 percent (from 2500 to 900) and 93
percent (from 28 to two) in the number of California olive producers
and handlers, respectively. Industry consolidation has resulted in
increased difficulties in filling Committee member seats as well as
fulfilling quorum requirements at meetings.
Given the current quorum requirement of a minimum of five producers
and five handlers in attendance, the absence of just one individual may
result in the lack of a quorum. Without a quorum, the Committee is
unable to vote on business decisions or make regulatory recommendations
to USDA. Meetings without a quorum are also costly as attendees must
travel to attend the meeting, thus incurring travel costs in addition
to time lost operating their businesses.
Adjusting the current quorum requirement as proposed would lower
the risk of not reaching a quorum during scheduled meetings due to the
absence of the required number of producer or handler members. This
change would streamline the Committee's operations and increase its
effectiveness by allowing the Committee to conduct business as long as
the minimum number of members are in attendance. It would also reduce
the risk of members incurring costs from traveling to meetings at which
business cannot be conducted due to lack of a quorum.
For the reasons stated above, it is proposed that Sec. 932.36,
Quorum requirement, be amended by removing the requirement of having
five producer members and five handler members in attendance to form a
quorum and clarify that alternate members acting as members could
satisfy the quorum requirement. It is also proposed that Sec. 932.36
be further amended by USDA's proposed clarifying change. This proposed
addition has been incorporated into the amendatory text of this
document.
Final Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the
economic impact of this action 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
businesses 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.
There are approximately 900 producers of olives in the production
area and two handlers subject to regulation under the Order. The Small
Business Administration (SBA) defines small agricultural producers as
those having annual receipts of less than $1,000,000, and small
agricultural service firms as those whose annual receipts are less than
$30,000,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS)
data, as of June 2019 the average price to producers for the 2018 crop
year was $766.00 per ton, and total assessable volume for the 2018 crop
year was 17,953 tons. Based on production, the total number of
California olive producers, and price paid to those producers, the
average annual producer revenue is less than $1,000,000 ($766.00 times
17,953 tons equals $13,751,998 divided by 900 producers equals an
average annual producer revenue of $15,280.00). Therefore, most olive
producers may be classified as small entities. Both handlers may be
classified as large entities under the SBA's
[[Page 11314]]
definitions because their annual receipts are greater than $30,000,000.
The proposed change would revise the quorum requirement for
Committee meetings by removing the requirement of having five producer
members and five handler members in attendance to form a quorum. The
proposed modified language would define a quorum as consisting of at
least 10 members and, if the Committee is increased by the addition of
a public member, a quorum would consist of at least 11 members.
The Committee unanimously recommended the proposed amendment at a
public meeting on July 29, 2019. If this proposed amendment is approved
in a referendum, there would be no direct financial effects on
producers or handlers as it is primarily administrative in nature. The
proposed amendment would increase the efficiency of the Committee's
operations and allow it to respond more quickly to the industry's
needs.
The number of producers and handlers operating in the industry has
decreased significantly since the marketing order was established in
1965, dropping from 2,500 to 900 (64 percent) and from 28 to two (93
percent), respectively. Industry consolidation has made it difficult to
find enough members to fill positions on the Committee. Moreover,
fulfilling quorum requirements at meetings has also become increasingly
challenging.
Changing the quorum requirement from the current 11-member
requirement, of which five must be producers and five must be handlers,
to simply the attendance of 11 members would increase meeting
efficiency by making the quorum requirement more easily fulfilled. This
proposed change would also reduce costs to members, Committee staff,
and USDA employees who travel to meetings where a quorum is not
established. If implemented, the proposed amendment is not expected to
result in any increases in economic costs or burden to industry
members, USDA staff or consumers.
Alternatives to this proposed amendment, including making no
changes at this time, were considered by the Committee. One alternative
included lowering the required number of producer or handler members in
attendance. However, given that there are only two handlers in
operation within the industry, this option was still considered too
restrictive by the Committee. Therefore, the alternatives were not
considered viable by the Committee.
AMS believes the proposed amendment is justified and necessary to
ensure the Committee's ability to locally administer the program.
Modifying the quorum requirement as proposed in this rule would ensure
a more efficient and orderly flow of business.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and
Specialty Crops. No changes in those requirements because of this
action would be necessary. Should any changes become necessary, USDA
would submit them to OMB for approval. This proposed rule would impose
no additional reporting or recordkeeping requirements on either
California olive handler.
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, USDA
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule.
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 access to Government information
and services, and for other purposes.
The Committee publicizes all of its meetings throughout the
California olive production area and encourages interested parties to
participate in its deliberations. Like all Committee meetings, the July
29, 2019, meeting was public, and all entities, both large and small,
were encouraged to express their views on the proposed amendment.
A proposed rule concerning this action was published in the Federal
Register on November 6, 2019 (84 FR 59736). Copies of the proposed rule
were sent via email to all Committee members and California olive
handlers. The rule was also made available through the internet by USDA
and the Office of the Federal Register. A 30-day comment period ending
December 6, 2019, allowed interested persons to respond to the
proposal. No comments were received; therefore, no changes were made to
the proposed amendments.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
Findings and Conclusions
The findings and conclusions and general findings and
determinations included in the proposed rule set forth in the November
6, 2019, issue of the Federal Register are hereby approved and adopted.
Marketing Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Olives Grown in
California.'' This document has been decided upon as the detailed and
appropriate means of effectuating the foregoing findings and
conclusions. It is hereby ordered that this entire rule be published in
the Federal Register.
Referendum Order
It is hereby directed that a grower referendum be conducted in
accordance with the procedure for the conduct of referenda (7 CFR part
900.400-407) to determine whether the annexed order amending the Order
regulating the handling of olives grown in California is approved by
growers who have engaged in the production of olives within the
production area during the representative period. The representative
period for the conduct of such referendum is hereby determined to be
August 1 through July 31, 2019.
The agents of the Secretary to conduct such referendum are
designated to be Kathie Notoro and Terry Vawter, California Marketing
Field Office, Marketing Order and Agreement Division, Specialty Crops
Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or
Email: [email protected] or [email protected], respectively.
List of Subjects in 7 CFR Part 932
Olives, Marketing agreements, Reporting and recordkeeping
requirements.
Dated: February 21, 2020.
Bruce Summers,
Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Olives Grown in
California 1
---------------------------------------------------------------------------
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
---------------------------------------------------------------------------
Findings and Determinations
The findings hereinafter set forth are supplementary to the
findings and
[[Page 11315]]
determinations which were previously made in connection with the
issuance of the marketing order; and all said previous findings and
determinations are hereby ratified and affirmed, except insofar as such
findings and determinations may be in conflict with the findings and
determinations set forth herein.
1. The Order, as amended, and as hereby proposed to be further
amended, and all of the terms and conditions thereof, would tend to
effectuate the declared policy of the Act;
2. The Order, as amended, and as hereby proposed to be further
amended, regulates the handling of olives grown in California in the
same manner as, and are applicable only to, persons in the respective
classes of commercial and industrial activity specified in the Order;
3. The Order, as amended, and as hereby proposed to be further
amended, is limited in application to the smallest regional production
area which is practicable, consistent with carrying out the declared
policy of the Act, and the issuance of several orders applicable to
subdivisions of the production area would not effectively carry out the
declared policy of the Act;
4. The Order, as amended, and as hereby proposed to be further
amended, prescribe, insofar as practicable, such different terms
applicable to different parts of the production area as are necessary
to give due recognition to the differences in the production and
marketing of olives produced in the production area; and
5. All handling of olives produced in the production area as
defined in the Order is in the current of interstate or foreign
commerce or directly burdens, obstructs, or affects such commerce.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, all handling of olives grown in California shall be in
conformity to, and in compliance with, the terms and conditions of the
said order as hereby proposed to be amended as follows:
The provisions of the proposed marketing order amending the Order
contained in the proposed rule issued by the Administrator on November
1, 2019, and published in the Federal Register (84 FR 59736) on
November 6, 2019, will be and are the terms and provisions of this
order amending the Order and are set forth in full herein.
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. Revise Sec. 932.36 to read as follows:
Sec. 932.36 Procedure.
Decisions of the committee shall be by majority vote of the
members, including alternates acting as members, present and voting,
and a quorum must be present: Provided, That decisions requiring a
recommendation to the Secretary on matters pertaining to grade and size
regulations shall require at least 10 affirmative votes, at least 5 of
which must be from producer members and at least 5 of which must be
from handler members and, if the committee is increased by the addition
of a public member, at least 11 affirmative votes shall be required, at
least 5 of which must be from producer members and at least 5 of which
must be from handler members. A quorum shall consist of at least 10
members, including alternates acting as members, and, if the committee
is increased by the addition of a public member, a quorum shall consist
of at least 11 members, including alternates acting as members. Except
in case of an emergency, a minimum of 5 days advance notice shall be
given with respect to any meeting of the committee. In case of an
emergency, to be determined within the discretion of the chairman of
the committee, as much advance notice of a meeting as is practicable in
the circumstances shall be given. The committee may vote by mail or
telegram upon due notice to all members, but any proposition to be so
voted upon first shall be explained accurately, fully, and identically
by mail or telegram to all members. When voted on by such method, at
least 14 affirmative votes, of which seven shall be producer member
votes and seven shall be handler member votes, shall be required for
adoption and, if the committee is increased by the addition of a public
member, votes by mail or telegram shall require at least 15 affirmative
votes, of which at least 7 shall be producer member votes and at least
7 shall be handler member votes. The committee may recommend for the
Secretary's approval changes in the number of affirmative votes
required for adoption of any proposition voted upon by means of a mail
or telegram ballot: Provided, That the number of affirmative votes
required for adoption shall not be less than 10, and in any case an
equal number of producer member and handler member votes shall be
required for adoption and, if the committee is increased by the
addition of a public member, the number of affirmative votes required
for adoption shall be increased by 1.
[FR Doc. 2020-03893 Filed 2-26-20; 8:45 am]
BILLING CODE 3410-02-P