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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

11937 

Vol. 76, No. 43 

Friday, March 4, 2011 

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: 

Jeffrey.Smutny@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

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: 

Antoinette.Carter@ams.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.’’ 

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 


jdjones on DSK8KYBLC1PROD with RULES2
11938 Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Rules and Regulations 

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 (§ 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 


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

■ 1. The authority citation for 7 CFR 

part 932 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 932.230 is revised to read 

as follows: 

§ 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1218 

[Document Number AMS–FV–10–0006] 

Blueberry Promotion, Research, and 

Information Order; Section 610 Review 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Confirmation of regulations. 

SUMMARY: This document summarizes 

the results of an Agricultural Marketing 

Service (AMS) review of the Blueberry 

Promotion, Research, and Information 

Order (Order) under the criteria 

contained in Section 610 of the 

Regulatory Flexibility Act (RFA). Based 

upon its review, AMS concluded that 

there is a continued need for the order. 

ADDRESSES: Interested persons may 

obtain a copy of the review on the 

Internet at: http://www.regulations.gov 

or requests for copies can be sent to the 

Docket Clerk, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

Agricultural Marketing Service, U.S. 

Department of Agriculture, 

(Department) Room 0632–S, Stop 0244, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0244; facsimile: 

(202) 205–2800 or electronic mail: 

Jeanette.Palmer@ams.usda.gov. 

FOR FURTHER INFORMATION CONTACT: 

Jeanette Palmer, Marketing Specialist, 

Research and Promotion Branch, Fruit 

and Vegetable Programs, AMS, USDA, 

Stop 0244, 1400 Independence Avenue, 

SW., Room 0632–S, Washington, DC 

20250–0244; telephone: (888) 720–9917; 

facsimile: (202) 205–2800; or electronic 

mail: Jeanette.Palmer@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: The 

Blueberry Promotion, Research and 

Information Order (7 CFR part 1218) is 

authorized under the Commodity 

Promotion, Research, and Information 

Act of 1996 (Act) [7 U.S.C. 7411–7425]. 

The Order became effective on August 

16, 2000 [65 FR 43961]. The Order is 

administered by the U.S. Highbush 

Blueberry Council (Council) with 

oversight by the Department of 

Agriculture (Department). The program 

is funded by assessments on highbush 

(cultivated) blueberries grown in and 

imported into the United States. 

Producers and importers pay the 

assessment. The producer assessment is 

remitted by first handlers, and the 

importer assessment is remitted by the 

U.S. Customs and Border Protection. 

Producers and importers who produce 

or import less than 2,000 pounds of 

highbush blueberries annually are 

exempt from the program. The purpose 

of the Order is to finance a coordinated 

program of promotion, research, and 

information to maintain and expand the 

market for fresh and processed 

cultivated blueberries in the United 

States and abroad. 

The Council is composed of 16 

members as follows: 10 producers (one 

from each of four regions and one from 

each of the top six producing states); 3 

importers; 1 exporter from a foreign 

production area; 1 handler; and 1 public 

member. Each member has an alternate. 

The members and alternates are 

appointed to the Council by the 

Secretary of Agriculture and serve a 

term of 3 years. 

There are approximately 2,000 

producers, 200 first handlers, 50 

importers, and 4 exporters who are 

subject to the provisions of the Order. 

The majority of the blueberry producers 

covered by the Order may be classified 

as small entities. Most importers, first 

handlers, and exporters would not be 

classified as small businesses. 

AMS published in the Federal 

Register on March 24, 2006 [71 FR 

14827], its plan to review certain 

regulations, including the Blueberry 

Order under criteria contained in 

section 610 of the RFA [5 U.S.C. 601– 

612]. Because many AMS regulations 

impact small entities, AMS decided, as 

a matter of policy, to review certain 

regulations which, although they may 

not meet the threshold requirement 

under section 610 of the RFA, warrant 

review. 

AMS published a notice of review and 

request for written comments in the 

Federal Register on February 23, 2010 

[75 FR 7986]. Twenty comments were 

received by the April 26, 2010, 

deadline. 

The review was undertaken to 

determine whether the Order should be 

continued without change, amended, or 

rescinded (consistent with the 

objectives of the Act) to minimize the 

impacts on small entities. AMS 

considered the following factors: (1) The 

continued need for the Order; (2) 

comments received from the public 

concerning the Order; (3) the 

complexity of the Order; (4) the extent 


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