[Federal Register: October 21, 2005 (Volume 70, Number 203)]
[Proposed Rules]
[Page 61238-61239]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc05-12]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[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: marlene.betts@usda.gov 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 Marlene.Betts@usda.gov.
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