[Federal Register Volume 68, Number 52 (Tuesday, March 18, 2003)]
[Proposed Rules]
[Pages 12881-12882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6510]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 68, No. 52 / Tuesday, March 18, 2003 / 
Proposed Rules  

[[Page 12881]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1219

[Doc. No. FV-03-702-PR]


Hass Avocado Promotion, Research, and Information Order; 
Termination of the Definition of ``Substantial Activity''

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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SUMMARY: The purpose of this proposed rule is to seek comments on the 
proposed termination of the definition of ``substantial activity'' in 
the Hass Avocado Promotion, Research, and Information Order (Order). 
The definition relates to the eligibility of importers to serve on the 
Hass Avocado Board (Board). This action is expected to increase the 
number of importers eligible to serve on the Board.

DATES: Comments must be received by May 19, 2003.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule to: Docket Clerk, Research and Promotion 
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, 
SW., Washington, DC 20250-0244. Comments should be submitted in 
triplicate and will be made available for public inspection at the 
above address during regular business hours. Comments may also be 
submitted electronically to: [email protected]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register. A copy of this rule may be found at: 
www.ams.usda.gov/fv/rpdocketlist.htm.

FOR FURTHER INFORMATION CONTACT: Julie A. Morin, Research and Promotion 
Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 
2535-S, Washington, DC 20250-0244; telephone (202) 720-6930, fax (202) 
205-2800, or e-mail [email protected].

SUPPLEMENTARY INFORMATION: The Hass Avocado Promotion, Research, and 
Consumer Information Order (Order) [7 CFR part 1219] became effective 
on September 9, 2002 [67 FR 56895]. It was issued under the Hass 
Avocado Promotion, Research and Information Act of 2000 (Act) [7 U.S.C. 
7801-7813].

Executive Orders 12866 and 12988

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In addition, this proposed rule has been reviewed under Executive 
Order 12988, Civil Justice Reform. The proposed rule is not intended to 
have retroactive effect. Section 524 of the Act provides that the Act 
shall not affect or preempt any other Federal or state law authorizing 
promotion or research relating to an agricultural commodity.
    Under section 519 of the Act, a person subject to the Order may 
file a petition with the Secretary of Agriculture (Secretary) stating 
that the Order, any provision of the Order, or any obligation imposed 
in connection with the Order, is not established in accordance with the 
law, and requesting a modification of the Order or an exemption from 
the Order. Any petition filed challenging the Order, any provision of 
the Order, or any obligation imposed in connection with the Order, 
shall be filed within two years after the effective date of the Order, 
provision, or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter, the Secretary will issue a ruling on a petition. The Act 
provides that the district court of the United States for any district 
in which the petitioner resides or conducts business shall have the 
jurisdiction to review a final ruling on the petition, if the 
petitioner files a complaint for that purpose not later than 20 days 
after the date of the entry of the Secretary's final ruling.

Regulatory Flexibility and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601 et. seq.], the Agency is required to examine the impact of the 
proposed rule on small entities. 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 disproportionately burdened. AMS 
has examined the impact of this proposed rule on small entities.
    There are approximately 6,000 producers, 200 importers, and 100 
first handlers covered by the Hass avocado program. The Small Business 
Administration [13 CFR 121.201] defines small agricultural producers as 
those having annual receipts of $750,000 or less annually and small 
agricultural service firms as those having annual receipts of $5 
million or less. Importers and first handlers would be considered 
agricultural service firms. Using these criteria, most producers and 
importers covered by the program would be considered small businesses, 
and most handlers would not.
    In order to serve as an importer member on the Board, an importer 
is defined as a person who is involved in, as a substantial activity, 
the importation of Hass avocados for sale or marketing in the United 
States. Section 1219.30(d) of the Order states that a substantial 
activity means that the volume of a person's Hass avocado imports must 
exceed the volume of the person's production or handling of domestic 
Hass avocados. According to the California Avocado Commission (CAC), 
this restriction has had a limiting effect on the number of importers 
eligible to serve on the Board. Several importers are ineligible to 
serve on the Board because they produce or handle more Hass avocados 
than they import. Therefore, terminating the definition of 
``substantial activity'' is expected to increase the number of 
importers eligible to serve on the Board.
    The proposed action on the Order would not impose additional 
recordkeeping requirements on first handlers, producers, or importers 
of Hass avocados because the number of nominees would remain unchanged.
    There are no relevant federal rules that duplicate, overlap, or 
conflict with the proposed rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed rule on small entities, and we 
invite comments concerning potential effects of the proposed change.

[[Page 12882]]

Background

    The Order became effective on September 9, 2002. Assessments on 
domestic and imported fresh Hass avocados began on January 2, 2003. The 
funds will be used to maintain and expand markets for Hass avocados in 
the United States. The Hass Avocado Board (Board), which is appointed 
by the Secretary, will operate under the supervision of the USDA's (the 
Department) Agricultural Marketing Service (AMS).
    In determining who is eligible to serve as an importer member of 
the Board, the Act provides for a substantial activity test. In order 
to implement this provision, the Order needed to provide criteria to 
enable the Department to measure substantial activity. The Department 
determined that basing a person's eligibility on the person's business 
activity and which industry function (producing or importing) 
predominates was a reasonable measure that gave a clear and 
understandable benchmark. However, after having completed the importer 
member nomination process for the initial Board, we now believe that 
this criteria should be revised since it had such limiting effect on 
the number of importer nominees. The limiting effect was shown by the 
importers only having six nominees although the Order provided for 16 
nominees.
    The California Avocado Commission (CAC) has requested that the 
``substantial activity'' definition be terminated. The CAC noted that 
the substantial activity language has had a limiting effect on the pool 
of importer candidates for possible appointment to the Board and also, 
that several of the largest importers are not eligible to serve on the 
Board because they produce or handle more Hass avocados that they 
import.
    Regarding the subsequent step of adopting a new definition, the 
Department believes that it would be appropriate to wait until the 
Board is seated so that the Board can review the issue and make a 
recommendation to the Department on any new definition of substantial 
activity. Waiting for the Board to be seated will provide the 
opportunity for the Board to review and make a recommendation to the 
Department. Further, the Board can seek industry consensus on the new 
definition before submitting a recommendation to the Department.
    All written comments timely received will be considered before a 
final determination is made on this matter.

List of Subjects in 7 CFR Part 1219

    Administrative practice and procedure, Advertising, Consumer 
information, Hass avocados, Hass avocado promotion, Marketing 
agreements, Reporting and recordkeeping requirements.
    For the reasons set forth in the preamble, 7 CFR part 1219 is 
proposed to be amended as follows:

    1. The authority citation for part 1219 continues to read as 
follows:

    Authority: 7 U.S.C. 7401-7425


Sec.  1219.30  [Amended]

    2. The last sentence in Sec.  1219.30 paragraph (d) is removed.

    Dated: March 14, 2003.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-6510 Filed 3-14-03; 11:50 am]
BILLING CODE 3410-02-P