[Federal Register Volume 70, Number 203 (Friday, October 21, 2005)]
[Proposed Rules]
[Pages 61238-61239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21081]


 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / 
Proposed Rules  

[[Page 61238]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1219

[Doc. No. FV-05-703-ANPR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Advance notice of proposed rulemaking; request for public 
comments.

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SUMMARY: The Agricultural Marketing Service (AMS) invites comments from 
producers, importers, first handlers and other interested persons on a 
possible change to the definition of ``substantial activity'' under 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).

DATES: Written suggestions, views or pertinent information relative to 
this action will be considered if received by December 20, 2005.

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] or Internet: http://www.regulations.gov. 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: http://www.ams.usda.gov/fv/rpb.html.

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].

Executive Order 12866

    This rule has been determined not significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget (OMB).
    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 needs 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 advance notice of proposed rulemaking invites comments on a 
possible change to this definition of substantial activity under the 
Order to better measure substantial activity. AMS is seeking 
information pertaining to the definition of substantial activity and on 
the impact such rulemaking might have on the number of importers 
eligible to serve on the Board. All other views, suggestions or 
comments relative to the proposal in general also are sought.
    The Order provision being considered for amendment governs the 
eligibility of importers to serve on the Board and is authorized under 
the Hass Avocado Promotion, Research, and Information Order (Order). 
The Act provides that changes to the Order will become effective if 
approved in referenda by eligible producers and importers.

Background

    Section 1219.30 of the Hass Avocado Promotion, Research, and 
Information Order provides 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.
    After the Order was implemented, the Department of Agriculture 
(Department) conducted the initial nomination process for importer 
positions on the Board. At that time, only six nominees were received, 
although the Order provided for 16 nominees.
    Since the initial nomination process in 2002 there has 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 affect 
importer eligibility on the Board.
    Currently, the Department is in the process of appointing 2 
importer members to the Board, which 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 any other pertinent information prior to the 
Department considering any change to the definition of substantial 
activity.
    A proposed rule was published in the Federal Register March 18, 
2003 [68 FR 12881], which would have terminated the definition of 
substantial activity under the Order. Comments were requested by May 
19, 2003. Nine comments were received in a timely manner by the 
deadline. Seven commenters were importers of Hass avocados. Two 
commenters were Hass avocado industry organizations, one being the Hass 
Avocado Board created by the Act. Seven of the nine commenters opposed 
change to the Order, while two were in support of the proposed rule 
change.
    On that rulemaking, opposing commentors raised a number of issues

[[Page 61239]]

including whether other factors limited the number of nominees in the 
earlier selection process rather than the definition of substantial 
activity. The commenters 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
    In a separate publication in the Federal Register, the proposed 
rule was withdrawn without being finalized after taking into account 
the above.

Comments and Information Requested

    Information, suggestions, and comments pertaining to the proposal 
are sought. Examples of specific information that would assist AMS in 
determining if this recommendation should be proposed are:
    1. Specific recommendations for the definition--including volume of 
imports relative to the volume of domestic production--that would allow 
the Department to measure substantial activity as is required by the 
Act.
    2. Data relative to the number of importers that would become 
eligible to serve on the Hass Avocado Board if the definition changed.
    3. Data relative to the number of importers that would become 
eligible to serve on the Hass Avocado Board if the definition was not 
changed.

Summary

    In conclusion, the AMS is soliciting the views of interested 
persons as to amending the definition of substantial activity to enable 
the Department to better measure substantial activity as is required by 
the Act. Specifically, the AMS is interested in the points mentioned 
previously in this advance notice as well as statistical information, 
suggestions, and comments pertaining to the definition of substantial 
activity and the impact on the number of eligible importers to serve on 
the Board. All views are solicited, however, so that every aspect of 
this potential amendment may be studied prior to formulating a proposed 
rule, if such is deemed warranted by the AMS.
    This request for public comments does not constitute notification 
that the recommendation to change the regulations described in this 
document is or will be proposed or adopted.
    A 60-day comment period is provided to allow interested persons the 
opportunity to respond to this request for information and comments. 
All written comments timely received will be considered before any 
subsequent rulemaking action is undertaken.

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

    Dated: October 18, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-21081 Filed 10-20-05; 8:45 am]
BILLING CODE 3410-02-P