[Federal Register Volume 71, Number 171 (Tuesday, September 5, 2006)]
[Rules and Regulations]
[Pages 52285-52287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7372]



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  Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / 
Rules and Regulations  

[[Page 52285]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1219

[Doc. No. FV-06-701-FR]


Amendment to the Hass Avocado Promotion, Research, and 
Information Order: Adjust Representation on the Hass Avocado Board

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule adjusts the number of members on the Hass Avocado 
Board (Board) to reflect changes in the production of domestic Hass 
avocados in the United States and the volume of imported Hass avocados 
into the U.S. over the 2003, 2004, and 2005 calendar years, which are 
three years after assessments commenced. These adjustments are required 
by the Hass Avocado Promotion, Research, and Information Order (Order). 
The results of the adjustment is one additional importer member and 
alternate and one less domestic producer member and alternate of Hass 
avocados that are subject to assessments. As a result of these changes, 
the Board membership will be composed of seven domestic producer 
members and alternates and five importer members and alternates. 
Currently, the Board is composed of eight domestic producer members and 
alternates, and four importer members and alternates. These changes to 
the Board are effective for the Secretary of Agriculture's 2006 
appointments.

EFFECTIVE DATE: October 5, 2006.

FOR FURTHER INFORMATION CONTACT: Marlene M. Betts, Research and 
Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing 
Service, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 2535-S, 
Washington, DC 20250-0244, telephone (202) 720-9915, fax (202) 205-
2800, or 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

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
Section 1212(c) of the Hass Avocado Promotion, Research, and 
Information Act of 2000 states that the Act may not be construed to 
preempt or supersede any other program relating to Hass avocado 
promotion, research, industry information, and consumer information 
organized and operated under the laws of the United States or of a 
State.
    Under Section 1207(a)(1) of the Hass Avocado Promotion, Research, 
and Information Act of 2000, a person subject to the Order may file a 
petition with the Department of Agriculture (USDA) stating that the 
Order, any provision for the Order, or any obligation imposed in 
connection with the Order, is not established in accordance with 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, USDA will issue a ruling on the petition. The Act provides 
that the district court of the United States in 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 that 20 days after the date of the 
entry of USDA's final ruling.

Regulatory Flexibility Act and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601 et seq.], the Agricultural Marketing Service has considered the 
economic impact of this action on small entities and has certified that 
this rule will not have a significant economic impact on a substantial 
number of 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. In accordance 
with the provision of the Act and section 1219.30 of the Order, this 
rule merely adjusts representation on the Board to reflect changes in 
production levels of domestic Hass avocados in the U.S. and the volume 
of imported Hass avocados into the U.S. over the 2003, 2004, and 2005 
calendar year. There are approximately 20,000 producers and 200 
importers, 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 $6.5 
million or less. Importers would be considered agricultural service 
firms. Using these criteria, most producers and importers covered by 
the program would be considered small businesses under the criteria 
established by the Small Business Administration (13 CFR 121.201).
    At its January 2006 meeting, the Board reviewed the production for 
the domestic Hass avocados in the U.S. and the volume of imported Hass 
avocados over the 2003, 2004, and 2005 calendar years and decided to 
recommend one additional member and alternate member for importers and 
one less member and alternate for domestic producers of Hass avocados 
that are subject to the assessment. The total average combined volume 
of Hass avocados produced in the U.S. and imported into the U.S. for 
the 2003, 2004, and 2005 calendar years was 712 million pounds. Of this 
amount, 53.2 percent was Hass avocados imported into the U.S. and 46.8 
percent was domestically produced Hass avocados.
    Representation on the Board (12) is comprised of: (1) Seven 
producer members and their alternates; (2) two

[[Page 52286]]

importer members and their alternates; and, (3) three producer or 
importer members and their alternates, also known as the ``swing 
seats.'' Under the Act and Order the three ``swing seats'' are 
allocated so as to reflect as nearly as possible the proportion of 
domestic production and imports supplying the U.S. market. The 
proportion is based on the average volume of domestic production and 
the average volume of imports into the U.S. market over the previous 
three years. With regard to alternatives, the adjustments to the three 
``swing seats'' in this rule are in conformance with the provisions of 
the Act and Order. This rule merely adjusts representation on the Board 
to provide the ``swing seats'' with three importer members and imposes 
no new burden on the industry.
    There are no relevant Federal rules that duplicate, overlap, or 
conflict with this rule.
    In accordance with the Office of Management and Budget (OMB) 
regulation [5 CFR part 1320] which implements the Paperwork Reduction 
Act of 1995 [44 U.S.C. Chapter 35], the information collection and 
recordkeeping requirements that are imposed by the Order have been 
approved previously under OMB control number 0581-0093. This rule does 
not result in a change to the information collection and recordkeeping 
requirements previously approved.

Background

    The Hass Avocado Promotion, Research, and Information Act of 2000 
(7 U.S.C. 7801-7813) provides for the establishment of a coordinated 
program of promotion, research, industry information, and consumer 
information designed to strengthen the avocado industry's position in 
the domestic marketplace, and to maintain, develop, and expand markets 
and uses for Hass avocados in the domestic marketplace. The program is 
financed by an assessment of 2.5 cents per pound on fresh Hass avocados 
produced and handled in the U.S. and on fresh Hass avocados imported 
into the U.S. Also under the Act, the Secretary may issue regulations. 
Pursuant to the Act, an Order was made effective September 9, 2002. The 
Order established a Board of 12 members and alternates. For purposes of 
establishing the Board, seven members and their alternates shall be 
producers of Hass avocados; two members and their alternates shall be 
importers of Hass avocados; and, three members and their alternates 
shall be producers or importers of Hass avocados, also known as the 
``swing seats.'' The three ``swing seats'' are allocated so as to 
reflect as nearly as possible the proportion of domestic production and 
imports supplying the U.S. market. Such proportion is determined using 
the average volume of domestic production and the average volume of 
imports into the U.S. market over the previous three years.
    Section 1219.30(c) of the Order provides that at the end of three 
years after assessment funds began, the Board shall review the 
production of domestic Hass avocados in the U.S. and the volume of 
imported Hass avocados on the basis of the amount of assessments 
collected from producers and importers over the immediately preceding 
three-year period. The Board may recommend to the Secretary 
modification to the Board based on proportion of domestic production 
and imports supplying the U.S. market.
    At its January 2006 meeting, the Board reviewed the production for 
the domestic Hass avocados in the U.S. and the volume of imported Hass 
avocados over the 2003, 2004, and 2005 calendar years and decided to 
recommended one additional member and alternate member for importers 
and one less member and alternate for domestic producers of Hass 
avocados that are subject to the assessment. The total average combined 
volume of Hass avocados produced in the U.S. and imported into the U.S. 
for the 2003, 2004, and 2005 calendar years was 712 million pounds. Of 
this amount, 53.2 percent was Hass avocados imported into the U.S. and 
46.8 percent was domestically produced Hass avocados.
    Representation on the Board (12) is comprised of: (1) Seven 
producer members and their alternates; (2) two importer members and 
their alternates; and, (3) three producer or importer members and their 
alternates, also known as the ``swing seats.'' Under the Act and Order 
the three ``swing seats'' are allocated so as to reflect as nearly as 
possible the proportion of domestic production and imports supplying 
the U.S. market. The proportion is based on the average volume of 
domestic production and the average volume of imports into the U.S. 
market over the previous three years.
    The current 12 member Board is composed of eight producer members 
and alternates, and four importer members and alternates; meaning (1) 
seven producer members and alternates; (2) two importer members and 
alternates; and, (3) of the three ``swing seats'' two are currently 
importer member and alternate seats and one is a producer member and 
alternate seat.
    On May 9, 2006, an interim final rule concerning this action was 
published in the Federal Register. Copies of the rule were made 
available through the Internet by USDA and the Office of the Federal 
Register. The rule provided a 60-day comment period which ended July 
10, 2006. Two comments were received, both of which were favorable.
    The commenters' support the rule that adjusts the number of 
producer and importer members on the Hass Avocado Board. The 
commenters' support the adjustment to the Board that would give the 
three ``swing seats'' to the importers. In addition, the commenters 
state that it is important that the change be made as part of the 
Secretary's 2006 appointments so that members currently serving could 
complete their terms of office and easily seat the new members at the 
start of the Board's fiscal year. Both commenters support the 
implementation of the interim final rule as it was presented. However, 
one commenter was of the view that under the Act and Order, the Board 
had authority to conduct the administrative process leading to 
recommending candidates to the Secretary and that rulemaking was 
unnecessary to complete the process to adjust representation on the 
Board. We disagree. The Department properly initiated rulemaking to 
adjust representation on the Board and this action completes the 
rulemaking process.
    After consideration of all relevant material presented including 
comments, the Board's recommendation, and other information, the 
interim final rule, as published in the Federal Register (71 FR 26821) 
on May 9, 2006, is adopted as a final rule.
    Representation on the Board based on the changes in the production 
of domestic Hass avocados and the volume of imported Hass avocados into 
the U.S. over the 2003, 2004, and 2005 calendar year results in one 
additional importer member and alternate and one less producer member 
and alternate. Accordingly, all of the ``swing seats'' are importers' 
therefore, the 12-member Board will be comprised of seven producer 
members and alternates and five importer members and alternates 
effective for the Secretary of Agriculture's 2006 appointments.

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.


[[Page 52287]]



0
For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 7801-7813 the amendments to 7 CFR part 1219 published at 71 FR 
26821, May 9, 2006, are adopted as final without change.

    Dated: August 24, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-7372 Filed 9-1-06; 8:45 am]
BILLING CODE 3410-02-P