[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: http://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: http://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: http://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