Olives Grown in California; Proposed Amendments to the Marketing Order No. 932, 59736-59739 [2019-24224]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 84, Number 215 (Wednesday, November 6, 2019)]
[Proposed Rules]
[Pages 59736-59739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24224]


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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.

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Federal Register / Vol. 84, No. 215 / Wednesday, November 6, 2019 / 
Proposed Rules

[[Page 59736]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 932

[Doc. No.: AMS-SC-19-0081; SC-19- 932-2]


Olives Grown in California; Proposed Amendments to the Marketing 
Order No. 932

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on proposed amendments to 
Marketing Order No. 932, which regulates the handling of olives grown 
in California. The proposed amendment would change the California Olive 
Committee's (Committee) quorum requirements.

DATES: Comments must be received by December 6, 2019.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or internet: https://www.regulations.gov. All comments should reference the document number 
and the date and page number of this issue of the Federal Register and 
will be made available for public inspection in the Office of the 
Docket Clerk during regular business hours, or can be viewed at: https://www.regulations.gov. All comments submitted in response to this 
proposed 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: 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 action, 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 proposed rule 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.'' The Committee locally administers the Order and is comprised 
of olive producers and handlers operating within the area of 
production.
    Section 8c(17) of the Act (7 U.S.C 608c(17)) and the applicable 
rules of practice and procedure governing the formulation of marketing 
agreements and orders (7 CFR part 900.43) authorize amendment of the 
Order through this informal rulemaking action. The Agricultural 
Marketing Service (AMS) will consider comments received in response to 
this proposed rule, and based on all the information available, will 
determine if the Order amendment is warranted. If AMS determines 
amendment of the Order would effectuate the declared policy of the Act, 
a subsequent proposed rule and notice of referendum would be issued and 
producers would be allowed to vote for or against the proposed Order 
amendments. AMS would then issue a final rule effectuating any 
amendments approved by producers in the referendum.
    The Department of Agriculture (USDA) is issuing this proposed 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'[thinsp]'' (February 2, 2017).
    This proposed rule 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 be deemed to 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 8c(15)(A) of the 
Act (7 U.S.C. 608c(15)(A)), 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 8c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 8c(17) of the Act and the supplemental rules of practice 
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 depending upon 
the nature and complexity of the proposed

[[Page 59737]]

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 
amendment proposed herein is not unduly complex and the nature of the 
proposed amendment 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 
``Initial 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.
    Section 932.25 establishes an administrative committee, the 
California Olive 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 be a producer or handler of olives nor 
an officer or employee or director of any producer or handler of 
olives) for a 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 
proposed amendment, which 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 qualifying a quorum. This proposed 
phrase reiterates the authority of alternate members as specified in 
Sec.  932.30. For clarity and consistency, USDA recommends 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. This proposed 
addition has been incorporated into the amendatory text of this 
document.
    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 
could 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.

Initial 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 initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so 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 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

[[Page 59738]]

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.
    Since 1965, when the marketing order was established, the number of 
producers and handlers operating in the industry has decreased 
significantly, 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 and Committee and 
USDA staff 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 are necessary because 
of this action. Should any changes become necessary, they would be 
submitted to OMB for approval.
    This proposed rule would impose 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 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 action.
    The Committee's meetings were widely publicized throughout the 
California olive production area. All interested persons were invited 
to attend the meetings and encouraged to participate in Committee 
deliberations on all issues. 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.
    Interested persons are invited to submit comments on the proposed 
amendments to the Order, including comments on the regulatory and 
information collection impacts of this action on small businesses.
    Following an analysis of any comments received on the amendments in 
this proposed rule, AMS will evaluate all available information and 
determine whether to proceed. If AMS determines that the amendments 
would effectuate the declared policy of the Act, a proposed rule and 
notice of referendum would be issued, and producers would be provided 
the opportunity to vote for or against the proposed amendments.
    Information about the referendum, including dates and voter 
eligibility requirements, would be published in a future issue of the 
Federal Register. A final rule would then be issued to effectuate the 
amendments if it is favored by producers participating in the 
referendum.
    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.

General Findings

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of Marketing Order 932; 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. Marketing Order 932 as hereby proposed to be amended and all the 
terms and conditions thereof, would tend to effectuate the declared 
policy of the Act;
    2. Marketing Order 932 as hereby proposed to be amended regulates 
the handling of olives grown in California and is applicable only to 
persons in the respective classes of commercial and industrial activity 
specified in the Order;
    3. Marketing Order 932 as hereby proposed to be 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 marketing orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. Marketing Order 932 as hereby proposed to be amended prescribes, 
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 
or packed in the production area; and
    5. All handling of olives produced or packed in the production area 
as defined in Marketing Order 932 is in the current of interstate or 
foreign commerce or directly burdens, obstructs, or affects such 
commerce.
    A 30-day comment period is provided to allow interested persons to 
respond to these proposed amendments.
    Comments received during the comment period on the amendments 
proposed will be analyzed, and if AMS determines to proceed based on 
all the information presented, a producer referendum would be conducted 
to determine producer support for the proposed amendment. If favored by 
producers participating in the referendum, a final rule would then be 
issued to effectuate it.

[[Page 59739]]

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 
proposed to be 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.


Sec.  932.36  [Amended]

0
2. Amend 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 ten, 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 one.

    Dated: November 1, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-24224 Filed 11-5-19; 8:45 am]
BILLING CODE 3410-02-P