[Federal Register: May 9, 2008 (Volume 73, Number 91)]
[Rules and Regulations]               
[Page 26313-26315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my08-1]                         






Rules and Regulations
                                                Federal Register
________________________________________________________________________

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[[Page 26313]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 932

[Docket No. AMS-FV-07-0155; FV08-932-1 FIR]

 
Olives Grown in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting as a final 
rule, without change, an interim final rule which decreased the 
assessment rate established for the California Olive Committee 
(committee) for the 2008 and subsequent fiscal years from $47.84 to 
$15.60 per assessable 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 Date: June 9, 2008.

FOR FURTHER INFORMATION CONTACT: Jennifer R. Garcia, 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: Jen.Garcia@usda.gov or Kurt.Kimmel@usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, 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: Jay.Guerber@usda.gov.

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.''
    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, 2008, and continue until amended, 
suspended, or terminated. 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 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 continues in effect the action that decreased the 
assessment rate established for the committee for the 2008 and 
subsequent fiscal years from $47.84 to $15.60 per ton of assessable 
olives from the applicable crop years.
    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 fiscal year, which is the 12-month period between January 
1 and December 31, begins after the corresponding crop year, which is 
the 12-month period beginning August 1 and ending July 31 of the 
subsequent year. Fiscal year budget and assessment recommendations are 
made after the corresponding crop year olive tonnage is reported. The 
members of the committee are producers and handlers of California 
olives. They are familiar with the committee's needs and with 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 2007 and subsequent fiscal years, the committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal year to fiscal 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 5, 2007, and unanimously recommended 
2008 fiscal year expenditures of $1,588,552 and an assessment rate of 
$15.60 per ton of assessable olives. In comparison, last year's 
budgeted expenditures were $965,396. The assessment rate of $15.60 is 
$32.24 lower than the 2007 rate. The committee recommended the lower 
assessment rate because the 2007-08 assessable olive receipts as 
reported by the California Agricultural Statistics Service (CASS) are 
108,059 tons, which compares to 16,270 tons in 2006-07. The 2006-07 
crop was unusually small in size due to unusual weather conditions.
    The major expenditures recommended by the committee for the 2008 
fiscal year include $500,000 for research, $750,000 for marketing 
activities, and $288,552 for administration. Budgeted expenditures for 
these items in 2007 were $365,775, $347,450, and $252,171, 
respectively. The committee recommended a larger 2008 research budget 
so it can expand

[[Page 26314]]

its ongoing research to develop a mechanical olive harvesting method. 
The committee also recommended an increase in the 2008 marketing budget 
to allow for a restructuring of its marketing program, which will focus 
on a new Web site and trade advertisements. Recommended increases in 
the administrative budget are due mainly to a necessary office move and 
increases in employee benefits. Another $50,000 is budgeted for 2008 
for a possible inspection-related research project.
    The assessment rate recommended by the committee was derived by 
considering anticipated fiscal year expenses, actual olive tonnage 
received by handlers during the 2007-08 crop year, and additional 
pertinent factors. Actual assessable tonnage for the 2008 fiscal year 
is expected to be higher than the 2007-08 crop receipts of 108,059 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 funds from the committee's 
authorized reserve and interest income, should be adequate to cover 
budgeted expenses. Funds in the reserve should be kept within the 
maximum permitted by the order of approximately one fiscal year's 
expenses (Sec.  932.40).
    The assessment rate 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 2008 budget and those for 
subsequent fiscal years will be reviewed and, as appropriate, approved 
by USDA.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this 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 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 745 producers of 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 (13 CFR 121.201) as those having annual receipts less 
than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $6,500,000.
    Based upon information from the committee, the majority of olive 
producers may be classified as small entities. Both of the handlers may 
be classified as large entities.
    This rule continues in effect the action that decreased the 
assessment rate established for the committee and collected from 
handlers for the 2008 and subsequent fiscal years from $47.84 to $15.60 
per ton of assessable olives. The committee unanimously recommended 
2008 expenditures of $1,558,552 and an assessment rate of $15.60 per 
ton. The assessment rate of $15.60 is $32.24 lower than the 2007 rate. 
The lower assessment rate is necessary because assessable olive 
receipts for the 2007-08 crop year were reported by CASS to be 108,059 
tons, compared to 16,270 tons for the 2006-07 crop year. Actual 
assessable tonnage for the 2008 fiscal year is expected to be lower 
because some of the receipts may be diverted by handlers to exempt 
outlets on which assessments are not paid.
    Income generated from the $15.60 per ton assessment rate should be 
adequate to meet this year's expenses when combined with funds from the 
authorized reserve and interest income. Funds in the reserve should be 
kept within the maximum permitted by the order of about one fiscal 
year's expenses (Sec.  932.40).
    Expenditures recommended by the committee for the 2008 fiscal year 
include $500,000 for research, $750,000 for marketing activities, and 
$288,552 for administration. Budgeted expenditures for these items in 
2007 were $365,775, $347,450, and $252,171, respectively. The committee 
recommended a larger 2008 research budget so it can expand its ongoing 
research to develop a mechanical olive harvesting method. The committee 
also recommended an increase in the 2008 marketing budget to allow for 
a restructuring of its marketing program, which will focus on a new 
website and trade advertisements. Recommended increases in the 
administrative budget are due mainly to a necessary office move and 
increases in employee benefits. Another $50,000 is budgeted for a 
possible inspection-related research project.
    Prior to arriving at this budget, the committee considered 
information from various sources, such as the committee's Executive, 
Market Development, and Research Subcommittees. Alternative spending 
levels were discussed by these groups, based upon the relative value of 
various research and marketing projects to the olive industry. The 
assessment rate of $15.60 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 indicates that the grower price 
for the 2007-08 crop year was approximately $1,007.78 per ton for 
canning fruit and $378.51 per ton for limited-use sizes, leaving the 
balance as unusable cull fruit. Approximately 81 percent of a ton of 
olives are canning fruit sizes and 18 percent are limited use sizes, 
leaving the balance as unusable cull fruit. Grower revenue on 108,059 
total tons of canning and limited-use sizes would be $95,322,099 given 
the current grower prices for those sizes. Therefore, the assessment 
revenue for the 2007-08 fiscal year is expected to be approximately 2 
percent of grower revenue.
    This action continues in effect the action that decreased 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 5, 2007, meeting was a public 
meeting and all entities, both large and small, were able to express 
views on this issue.
    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

[[Page 26315]]

periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, as 
noted in the initial regulatory flexibility analysis, 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.
    An interim final rule concerning this action was published in the 
Federal Register on February 7, 2008, (73 FR 7199). Copies of that rule 
were also e-mailed or sent via facsimile to all commodity handlers. 
Finally, the interim final rule was made available through the Internet 
by USDA and the Office of the Federal Register. A 60-day comment period 
was provided for interested persons to respond to the interim final 
rule. The comment period ended on April 7, 2008, and no comments were 
received.
    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/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 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.

List of Subjects in 7 CFR Part 932

    Olives, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 932--OLIVES GROWN IN CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 932 which was 
published at 73 FR 7199 on February 7, 2008, is adopted as a final rule 
without change.

    Dated: May 6, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E8-10426 Filed 5-8-08; 8:45 am]

BILLING CODE 3410-02-P