[Federal Register: September 5, 2006 (Volume 71, Number 171)]
[Rules and Regulations]
[Page 52285-52287]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se06-1]
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Rules and Regulations
Federal Register
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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 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
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]
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