[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Proposed Rules]
[Page 59678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20530]


 ========================================================================
 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. 70, No. 197 / Thursday, October 13, 2005 / 
Proposed Rules  

[[Page 59678]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1219

[No. FV-03-702]


Hass Avocado Promotion, Research, and Information Order: 
Definition of ``Substantial Activity''

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule; withdrawal.

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SUMMARY: This document withdraws a proposed rule published in the 
Federal Register March 18, 2003, which would have terminated the 
definition of ``substantial activity'' under the Hass Avocado 
Promotion, Research, and Information Order (Order). The proposed action 
was expected to increase the number of importers eligible to serve on 
the Hass Avocado Board (Board). Based on comments received and other 
available information, termination of the definition would not be 
appropriate at this time.

DATES: This proposed rule is withdrawn as of October 14, 2005.

FOR FURTHER INFORMATION CONTACT: Marlene Betts, Research and Promotion 
Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 
2535-S, Washington, DC 20250-0244, telephone (202) 720-9915, fax (202) 
205-2800, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The Hass Avocado Promotion, Research, and 
Consumer Information Order (Order) is issued under the Hass Avocado 
Promotion, Research, and Information Act of 2000 (Act) [7 U.S.C. 7801-
7813].
    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 (67 FR 7290). 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.
    This document withdraws the proposed rule published in the Federal 
Register March 18, 2003 [68 FR 12881], which would have terminated the 
definition of substantial activity under the Order. The proposed action 
was expected to increase the number of importers eligible to serve on 
the Hass Avocado Board (Board). Nine comments were received in a timely 
manner by the comment deadline. Seven commenters were importers of Hass 
avocados. Two commenters were Hass avocado industry organizations, one 
being the Hass Avocado Board. Seven of the nine commenters opposed 
changing the definition in the Order, while two were in support of the 
proposed rule change.
    Opposing commentors raised a number of issues including whether 
other factors limited the number of nominees in the earlier selection 
process rather than the definition of substantial activity. The 
commentors stated that the size and pool of the eligible importers 
(200) was more than adequate to fill the vacancies on the Board. 
Concern was expressed as to the relationship of producers and importers 
on the Board.
    The supporting commentors were of the view that the substantial 
activity requirement unnecessarily limited the potential pool of 
nominees for service on the Board and denied some of the most 
significant and most qualified individuals in the avocado industry to 
serve on the Board.
    Since the initial nomination process in 2002, there have been 
significant changes in the industry. For example, the number of states 
and the months of the year that the Mexican Hass avocado industry can 
bring avocados in the United States has changed, which can effect 
importer eligibility on the Board.
    Currently, the Department is in the process of appointing 2 
importer members to the Board, this would fill all 4 importer positions 
on the Board. However, nominations were not forthcoming from the 
industry for the alternate importer positions.
    Further, the Department believes that it would be appropriate to 
publish an advance notice of rulemaking so that the industry can 
provide comments and other pertinent information prior to the 
Department publishing any further rulemaking on this issue. An advance 
notice of rulemaking will be published in the Federal Register 
separately from this document.
    Based on comments received and other available information, 
termination of the definition would not be appropriate at this time. 
Therefore, the proposed rule regarding the termination of the 
definition of substantial activity published in the Federal Register 
March 18, 2003 [68 FR 12881] is hereby withdrawn.

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.

    Authority: 7 U.S.C. 7801-7813.

    Dated: October 7, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-20530 Filed 10-12-05; 8:45 am]
BILLING CODE 3410-02-P