51684 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 932 

[Doc. No. AMS–FV–11–0093; FV12–932–1 

FR] 

Olives Grown in California; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

California Olive Committee (Committee) 

for 2012 and subsequent fiscal years 

from $16.61 to $31.32 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: August 28, 2012. 

FOR FURTHER INFORMATION CONTACT: Jerry 

L. Simmons, Marketing Specialist or 

Kurt J. Kimmel, Regional Director, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or Email: 

Jerry.Simmons@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, 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 Email: 

Laurel.May@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, 2012, 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 increases the assessment 

rate established for the Committee for 

the 2012 and subsequent fiscal years 

from $16.61 to $31.32 per ton of 

assessable 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 2011 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 15, 

2011, and unanimously recommended 

2012 expenditures of $1,197,291 and an 

assessment rate of $31.32 per ton of 

assessable olives. Olives are an alternate 

year bearing crop. Olive growers and 

handlers are accustomed to wide swings 

in crop yields and assessments from 

year to year. In comparison, last year’s 

budgeted expenditures were $2,203,909. 

The assessment rate of $31.32 is $14.71 

higher than the rate currently in effect. 

The Committee recommended the 

higher assessment rate because of a 

substantial decrease in the assessable 

olive volume for the 2012 fiscal year. 

The olive volume available for fiscal 

year 2011 as reported by the California 

Agricultural Statistics Service (CASS) is 

26,944 tons, which compares to 167,000 

tons reported for the 2010 fiscal year. 

The reduced crop is due to olives being 

an alternate year bearing fruit. The 

Committee also plans to use available 

reserve funds to help meet its 2012 

expenses. 

The major expenditures 

recommended by the Committee for the 

2012 fiscal year include $333,791 for 

research, $480,000 for marketing 

activities, $50,000 for inspection 

equipment development, and $333,500 

for administration. Budgeted expenses 

for these items in 2011 were $1,093,009, 

$700,000, $75,000 and $335,900, 

respectively. 

The assessment rate recommended by 

the Committee was derived by 

considering anticipated fiscal year 

expenses, actual olive tonnage received 

by handlers during the 2011 crop year, 

and additional pertinent factors. Actual 

assessable tonnage for the 2012 fiscal 

year is expected to be lower than the 

2011 crop receipts of 167,000 tons 

reported by the 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 would 

be adequate to cover budgeted expenses. 

Funds in the reserve will be kept within 

the maximum permitted by the order of 

approximately 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 will be 

in effect for an indefinite period, the 

Committee will continue to meet prior 

to or during each fiscal year to 

recommend a budget of expenses and 


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Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 51685 

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 2012 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) (5 

U.S.C. 601–612), 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 1,000 

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 $7,000,000. 

Based upon information from the 

industry and CASS, the average grower 

price for 2011 was approximately $798 

per ton and total grower production was 

around 26,944 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 increases the assessment 

rate established for the Committee and 

collected from handlers for the 2012 and 

subsequent fiscal years from $16.61 to 

$31.32 per ton of assessable olives. The 

Committee unanimously recommended 

2012 expenditures of $1,197,291 and an 

assessment rate of $31.32 per ton. The 

higher assessment rate is necessary 

because assessable olive receipts for the 

2012 fiscal year were reported by the 

CASS to be 26,944 tons, compared to 

167,000 tons for the 2011 fiscal year. 

Actual assessable tonnage for the 2012 

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 derived from the $31.32 per ton 

assessment rate along with funds from 

the authorized reserve and interest 

income should be adequate to meet this 

year’s expenses. 

The major expenditures 

recommended by the Committee for the 

2012 fiscal year include $333,791 for 

research, $480,000 for marketing 

activities, $50,000 for inspection 

equipment development, and $333,500 

for administration. Budgeted expenses 

for these items in 2011 were $1,093,009, 

$700,000, $75,000 and $335,900, 

respectively. The Committee 

recommended decreases in all major 

expense categories due to the huge 

decrease in assessable crop volume as 

reported by the CASS. 

Prior to arriving at this budget, the 

Committee considered information from 

various sources, such as the 

Committee’s Executive, Marketing, 

Inspection, and Research 

Subcommittees. Alternate expenditure 

levels were discussed by these groups, 

based upon the relative value of various 

projects to the olive industry and the 

reduced olive production. The 

assessment rate of $31.32 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 pertaining to 

the upcoming fiscal year indicates that 

grower price could range between 

approximately $1,000 per ton and 

$1,200 per ton of olives. Therefore, the 

estimated assessment revenue for the 

2012 fiscal year as a percentage of total 

grower revenue could range between 2.6 

and 3.1 percent. 

This action increases the assessment 

obligation imposed on handlers. While 

assessments impose some additional 

costs on handlers, the costs are minimal 

and uniform on all handlers. Some of 

the additional costs may be passed on 

to producers. However, these costs are 

offset by the benefits derived by the 

operation of the marketing order. In 

addition, the Committee’s meeting was 

widely publicized throughout the 

California’s 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, 2011, meeting was a 

public meeting and all entities, both 

large and small, were able to express 

views on this issue. 

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 the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0178. No 

changes in those requirements as a 

result of this action are necessary. 

Should any changes become necessary, 

they will be submitted to OMB for 

approval. 

This rule 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. As noted in the initial 

regulatory flexibility analysis, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this final 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. 

A proposed rule concerning this 

action was published in the Federal 

Register on June 5, 2012 (77 FR 33104). 

Copies of the proposed rule were also 

mailed or sent via facsimile to all olive 

handlers. Finally, the proposal was 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 30-day comment period 

ending July 5, 2012, was provided for 

interested persons to respond to the 

proposal. No comments were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May 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 also found 

and determined that good cause exists 


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51686 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 

for not postponing the effective date of 

this rule until 30 days after publication 

in the Federal Register because 

handlers have already received the 2012 

fiscal year olive crop from growers, the 

fiscal year began January 1, 2012, and 

the assessment rate applies to all 

California olives handled during the 

2012 fiscal year and subsequent fiscal 

years. Further, handlers are aware of 

this rule which was recommended at a 

public meeting. Also, a 30-day comment 

period was provided for in the proposed 

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, 2012, an 

assessment rate of $31.32 per ton is 

established for California olives. 

Dated: August 21, 2012. 

Ruihong Guo, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–21036 Filed 8–24–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 999 

[Doc. No. AMS–FV–09–0064; FV09–999–1 

FR] 

Specialty Crops; Import Regulations; 

New Pistachio Import Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes a 

minimum quality regulation for lots of 

pistachios imported into the United 

States. The regulation specifies 

maximum aflatoxin tolerance levels as 

well as mandatory aflatoxin testing and 

certification requirements. These import 

quality requirements are the same as or 

comparable to those in effect for the 

domestically produced commodity. 

Under this regulation, aflatoxin levels in 

imported pistachios may not exceed 15 

parts per billion (ppb), as certified by 

aflatoxin inspection certificates issued 

by an accredited laboratory. This action 

is intended to assure consumers that all 

pistachios offered for sale in the United 

States meet the same aflatoxin 

standards, thus promoting high quality 

product in the market place and 

fostering consumer satisfaction. 

DATES: Effective Date: September 26, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Laurel May or Kathleen Finn, Marketing 

Order and Agreement Division, 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 Email: Laurel.May@ams.

usda.gov or Kathy.Finn@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May at 

the above mentioned address. 

SUPPLEMENTARY INFORMATION: This final 

rule is issued under section 8e of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act,’’ 

which provides that whenever the 

grade, size, quality, or maturity of 

certain specified commodities, 

including pistachios, are regulated 

under a Federal marketing order, 

imports of these commodities into the 

United States are prohibited unless they 

meet the same or comparable grade, 

size, quality, and maturity requirements 

as those in effect for the domestically 

produced commodities. To ensure that 

these requirements are met, the Act also 

authorizes the Department of 

Agriculture (USDA) to perform 

inspections and related functions such 

as commodity sampling, and to issue 

inspection certificates for such imported 

commodities. 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

There are no administrative 

procedures that must be exhausted prior 

to any judicial challenge to the 

provisions of import regulations issued 

under section 8e of the Act. 

This final rule adds a new § 999.600 

under 7 CFR part 999—Specialty Crops; 

Import Regulations, and establishes 

quality requirements for maximum 

aflatoxin tolerance levels and 

mandatory testing and certification 

requirements for pistachios offered for 

importation into the United States. 

These quality requirements for imported 

pistachios are the same as or 

comparable to those established for 

pistachios grown in California, Arizona, 

and New Mexico under Marketing 

Agreement and Order No. 983 (7 CFR 

part 983) (order), both as amended. 

This final rule also revises § 999.500, 

which specifies safeguard procedures 

for the importation of walnuts and dates 

that are exempt from § 8e regulations. 

This section is revised to include 

safeguard procedures for the 

importation of pistachios intended for 

exempted purposes. 

The order prohibits the shipping of 

pistachios for domestic human 

consumption that do not meet the 

quality requirements for aflatoxin levels 

in the nuts. Such quality requirements 

specify that aflatoxin levels may not 

exceed the maximum tolerance of 15 

ppb. Pistachios that fail to meet these 

requirements must be reworked and 

retested, or disposed of as specified in 

the order. This regulation was designed 

to ensure that only high quality 

pistachios containing low levels of 

aflatoxin are shipped, thus promoting 

high quality product in the market place 

and fostering consumer satisfaction. 

The order, which was established for 

California pistachios in 2004, was 

recently amended to include the states 

of Arizona and New Mexico. Pistachios 

grown in California, Arizona, and New 

Mexico represent over 99 percent of the 

U.S. domestic production, and 98 

percent of the domestic consumption. 

Thus, almost all domestically produced 

pistachios are regulated under 

Marketing Order No. 983. There is no 

other Federal marketing order in effect 

for pistachios produced in the United 

States. 

According to USDA’s Foreign 

Agricultural Service (FAS), Iran is 

typically the world’s largest pistachio 

producer, followed by the U.S. and 

Turkey, although Syria’s production has 

increased in recent years. During the 

three most recent crop years (September 

through August) for which complete 

data is available, 2007–08 through 

2009–10, the production averages in 

millions of pounds (inshell basis) for 

Iran, the U.S., Turkey, and Syria were 

approximately 386, 350, 120, and 141, 

respectively. 

Historically, the bulk of U.S. pistachio 

imports have come from Turkey and 

Iran, although Iranian imports have 

been prohibited since July 2010. The 

remainder comes from other countries, 

including Italy, China, Switzerland, 

France, Australia, Hong Kong, and 

Israel. Imported pistachios may be 

inshell or shelled. According to FAS, 

the U.S. imported an average of 

approximately 1.7 million pounds of 

pistachios (inshell basis) annually 


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