[Federal Register Volume 67, Number 165 (Monday, August 26, 2002)]
[Proposed Rules]
[Pages 54908-54920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21535]



[[Page 54907]]

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Part IV





Department of Agriculture





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7 CFR Part 1206



Mango Promotion, Research, and Information Order; Subpart B--Referendum 
Procedures; Proposed Rule

  Federal Register / Vol. 67, No. 165 / Monday, August 26, 2002 / 
Proposed Rules  

[[Page 54908]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[FV-02-707-PR1]
RIN 0581-AC05


Proposed Mango Promotion, Research, and Information Order

AGENCY: Agricultural Marketing Service, Agriculture.

ACTION: Proposed rule with request for comments.

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SUMMARY: The U.S. Department of Agriculture (Department or USDA) is 
seeking comments on an industry-funded promotion, research, and 
information program for fresh mangos. A proposed program--the Mango 
Promotion, Research, and Information Order (Order)--was submitted to 
the Department by the Fresh Produce Association of the Americas 
(Association). Under the proposed Order, first handlers and importers 
of 500,000 or more pounds of mangos would pay an assessment of \1/2\ 
cent per pound on domestic and imported mangos to the National Mango 
Promotion Board (Board). The Board would be appointed by the Department 
to conduct a program of research and promotion, industry information, 
and consumer information needed to increase consumption of fresh mangos 
in the United States. The Order would be implemented if it is approved 
by a majority of the eligible first handlers and importers voting in a 
referendum. A separate proposed rule on referendum procedures is being 
published in this issue of the Federal Register.

DATES: Comments must be received by October 25, 2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning the proposed rule to: Docket Clerk, Research and Promotion 
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), USDA, Stop 0244, 1400 Independence Avenue, S.W., Room 
2535-S, 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]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register. A copy of this proposed rule may be 
found at: http://www.ams.usda.gov/rpdocketlist.htm.
    Pursuant to the Paperwork Reduction Act (PRA), send comments 
regarding the accuracy of the burden estimate, ways to minimize the 
burden, including the use of automated collection techniques or other 
forms of information technology, or any other aspect of this collection 
of information, to the above address. Comments concerning the 
information collection under the PRA should also be sent to the Desk 
Officer for Agriculture, Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kathie Birdsell, Research and 
Promotion Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, 
SW., Room 2535-S, Washington, DC 20250-0244, telephone 888-720-9917 
(toll free), fax 202-205-2800, e-mail [email protected].

SUPPLEMENTARY INFORMATION: This proposed Order is issued under the 
Commodity Promotion, Research, and Information Act of 1996 (Act) (7 
U.S.C. 7411-7425; Public Law 104-127; 110 Stat. 1029), or any 
amendments thereto.

Question and Answer Overview

Why Is USDA Proposing a Program for Mangos?

    The Department received a proposal from the Association for this 
program. The Department is issuing this rule to obtain comments on the 
proposal and the potential impact of the program on the mango industry 
before developing a final proposed program and conducting a referendum 
on it.

What Is the Purpose of the Mango Program?

    The purpose of the program is to increase consumption of mangos in 
the United States.

Who Will Be Covered by the Program?

    Domestic first handlers and importers of 500,000 or more pounds of 
mangos annually will pay assessments under the program. Domestic mangos 
that are exported will not be assessed under the Order.

Who Will Sit on the Board?

    Under the proposal, there will be a 20-member Board consisting of 
eight U.S. importers, one U.S. first handler, two U.S. producers, seven 
foreign producers, and two non-voting U.S. wholesalers and/or retailers 
of mangos. The chairperson shall reside in the United States.

How Will Members of the Board Be Selected?

    The U.S. importers, first handlers, and producers would be 
nominated by U.S. importers, first handlers, and producers, 
respectively. Foreign producers would be nominated by foreign producer 
associations. The U.S. wholesalers and/or retailers would be nominated 
by the Board. Two names must be submitted for each position. From the 
names submitted, the Department will appoint the members.

How Can I Express My Views on the Proposals?

    You have 60 days to submit written comments to USDA on the 
proposals and also to OMB on the paperwork burden associated with the 
proposed Order. You may submit your comments by mail, fax, or e-mail as 
indicated above. OMB is required to make a decision concerning the 
collection of information contained in this rule between 30 and 60 days 
after publication. Therefore, a comment to OMB is best assured of 
having its full effect if OMB receives it within 30 days of 
publication. In addition, if you are a first handler or importer of 
mangos, you will have the opportunity to vote either ``yes'' or ``no'' 
in a referendum to determine if the program will be implemented.

If the Mango Program Is Implemented and There Are Concerns About How It 
Is Operating, Can the Program Be Terminated?

    Yes. After the program is implemented, the Department will conduct 
a referendum to determine whether the mango industry continues to 
support the program: (1) Every 5 years after the program is in effect, 
(2) at the request of the Board established under the proposed Order, 
or (3) when requested by 10 percent or more of first handlers and 
importers covered by the proposed Order. In addition, the Department 
may conduct a referendum at any time. If a majority of the first 
handlers and importers voting in the referendum do not favor 
continuation, the program will be terminated.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.

Executive Order 12988

    This proposed rule has been reviewed under E.O. 12988, Civil 
Justice Reform. It is not intended to have retroactive effect.

[[Page 54909]]

    Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under section 519 of the Act, a person subject to the Order may 
file a petition with USDA stating that an order, any provision of an 
order, or any obligation imposed in connection with an order, is not 
established in accordance with the law, and requesting a modification 
of an order or an exemption from an order. Any petition filed 
challenging an order, any provision of an order, or any obligation 
imposed in connection with an order, shall be filed within two years 
after the effective date of an 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 for any district in which the petitioner resides or conducts 
business shall be the jurisdiction to review a final ruling on the 
petition, if the petitioner files a complaint for that purpose not 
later than 20 days after the date of entry of USDA's final ruling.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.), the Agency is required to examine the impact of the 
proposed rule on 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.
    The Act authorizes generic programs of promotion, research, and 
information for agricultural commodities. Congress found that it is in 
the national public interest and vital to the welfare of the 
agricultural economy of the United States to maintain and expand 
existing markets and develop new markets and uses for agricultural 
commodities through industry-funded, government-supervised, generic 
commodity promotion programs.
    The Association submitted a proposal on June 29, 2001, for this 
program to: develop and finance an effective and coordinated program of 
research, promotion, industry information, and consumer information 
regarding mangos; strengthen the position of the mango industry in U.S. 
markets; and maintain, develop, and expand domestic markets for mangos. 
The Association submitted changes to their proposal on November 1, 
2001.
    First handlers and importers of mangos must approve the program in 
a referendum in advance of its implementation. These persons would also 
serve on the proposed 20-member Board. The Board would be composed of 
eight U.S. importers, one U.S. first handler, two U.S. producers, seven 
foreign producers, and two non-voting wholesalers and/or retailers. If 
domestic production increases, additional U.S. first handlers would be 
added to the Board. The Board would administer the program under the 
Department's supervision. In addition, any person subject to the 
program may file with the Department a petition stating that the Order 
or any provision of the Order is not in accordance with law and 
requesting a modification of the Order or an exemption from the Order. 
Administrative proceedings were discussed earlier in this proposed 
rule.
    In this program, first handlers would be required to pay 
assessments, file reports, and submit assessments to the Board. 
Importers would be required to remit to the Board assessments not 
collected by the U.S. Customs Service (Customs) and to file reports 
with the Board. First handlers and importers of less than 500,000 
pounds of mangos annually and exports of U.S. mangos would be exempt 
from assessment. While the proposed Order would impose certain 
recordkeeping requirements on first handlers and importers, information 
required under the proposed Order could be compiled from records 
currently maintained and would involve clerical or accounting skills. 
The forms require the minimum information necessary to effectively 
carry out the requirements of the program, and their use is necessary 
to fulfill the intent of the Act. An estimated 89 respondents would 
provide information to the Board. They would be: 5 first handlers 
covered by the program, 3 exempt first handlers, 55 importers covered 
by the program, 3 exempt importers, 4 domestic producer nominees, 1 
foreign producer organization, 14 foreign producer nominees, and 4 
wholesaler and/or retailer nominees. The estimated total cost of 
providing information to the Board by all respondents would be $783.34. 
The cost for all first handlers covered by the program would be $336.66 
or $67.33 per first handler covered by the program; $7.50 for all 
exempt handlers or $2.50 per exempt handler; $393.34 for all importers 
covered by the program or $7.15 per importer covered by the program; 
$7.50 for all exempt importers or $2.50 per exempt importer; $6.67 for 
all domestic producers or $1.67 per nominee; $1.67 for the foreign 
producer organization; $23.33 for all foreign producer nominees or 
$1.67 per nominee; and $6.67 for all wholesaler and/or retailer 
nominees or $1.67 for each nominee. These totals have been estimated by 
multiplying total burden hours requested by $10.00 per hour, a sum 
deemed to be reasonable should the respondents be compensated for their 
time.
    The Department would oversee the operation of the program. Every 
five years, the Department would conduct a referendum to determine 
whether the mango industry supports continuation of the program. In 
addition, the Secretary may conduct a referendum at any time, at the 
request of 10 percent or more of the first handlers and importers 
required to pay assessments, or at the request of the Board.
    There are approximately 5 first handlers and 55 importers of mangos 
that would be covered by the program. First handlers and importers of 
less than 500,000 pounds of mangos annually and exports of U.S. mangos 
would be exempt from assessments. The program would also affect 
domestic and foreign mango producers, an association of foreign mango 
producers, and wholesalers and retailers. These entities would serve on 
the Board or participate in the nomination process.
    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 $5 million or less. First handlers, importers, 
wholesalers, and retailers would be considered agricultural service 
firms. Using these criteria, most producers, first handlers, and 
importers would be considered small businesses while wholesalers and 
retailers would not. The producer association would consist of 
producers and would reflect the size of these entities.
    U.S. production of mangos is located in California, Florida, and 
Hawaii, according to the most recent U.S. Census of Agriculture 
(Census) which was in 1997. The Census does not include California 
production because California has so few producers that publishing 
production data would reveal confidential information. In 1997, 
production in Florida totaled 6.1 million pounds, and Hawaii's 
production was 0.1 million pounds. For Florida and Hawaii combined, 
production fell from 16.6 million pounds in 1992 to 6.2 million pounds 
in 1997. Census data are published every five years. USDA does not 
report the value of U.S. production. Although domestic production 
accounts for only eight percent of U.S. consumption of

[[Page 54910]]

mangos, we anticipate that any increase in demand for mangos resulting 
from this program may lead to a corresponding increase in domestic 
production.
    Seven countries account for 99 percent of the mangos imported into 
the United States. These countries and their share of the imports (from 
September 1, 2000, through June 30, 2001) are: Mexico (57 percent); 
Brazil (11 percent); Ecuador (10 percent); Peru (10 percent); Guatemala 
(7 percent); Haiti (3 percent); and Costa Rica (1 percent). For the 
period from September 1, 2000, through June 30, 2001, the United States 
imported a total of 170,445 tons of mangos, valued at $106 million. In 
the previous full season (September 1, 1999, through August 31, 2000), 
253,591 tons, valued at $141 million, were imported into the United 
States. A preliminary estimate of per capita consumption of mangos by 
USDA's Economic Research Service (ERS) was 1.8 pounds in 2000. Per 
capita consumption has been trending upwards for several decades. Per 
capita consumption was 0.21 pounds in 1979 and 0.51 pounds in 1989.
    The proposed Order would authorize assessments on first handlers 
and on importers (collected by Customs) of mangos at a rate of \1/2\ 
cent per pound. This would generate about $2.5 million to administer 
the program: about 8 percent from domestic production and 92 percent 
from imports. First handlers and importers of less than 500,000 pounds 
of mangos per year will be exempt. U.S. produced mangos that are 
exported are also exempt.
    The cost of the assessment and reporting requirements for first 
handlers and importers is likely to be offset by the benefit of 
increased demand for mangos in the United States. The Association's 
goal for the program is to increase consumption of mangos in the United 
States by 30 percent after one year. In addition, U.S. consumers would 
benefit from additional information regarding mangos. Another benefit 
to first handlers and importers of mangos would be that they could 
serve on the Board and direct the Board's programs.
    Associations and related industry media would receive news releases 
and other information regarding the implementation and referendum 
process. Furthermore, all the information would be available 
electronically.
    The Board would develop guidelines for compliance with the program. 
The Board would recommend changes in the assessment rate, programs, 
plans, projects, budgets, and any rules and regulations that might be 
necessary for the administration of the program. The administrative 
expenses of the Board are limited by the Act to no more than 15 percent 
of its assessment income.
    There are no federal or state programs that duplicate, overlap, or 
conflict with this rule. With regard to alternatives to this proposed 
rule, the Act itself provides for authority to tailor a program 
according to the individual needs of an industry. Provision is made for 
permissive terms in an order in section 516 of the Act, and other 
sections provide for alternatives. For example, section 514 of the Act 
provides for orders applicable to: (1) Producers; (2) first handlers 
and other persons in the marketing chain as appropriate; and (3) 
importers (if imports are subject to assessment).
    Section 515 of the Act provides for the establishment of a board to 
administer a program established under the Act. This section states 
that the board will consist of members considered by the Department, in 
consultation with the agricultural commodity industry involved, to be 
appropriate. The Act authorizes the following types of board members: 
producers, first handlers, others in the marketing chain as 
appropriate, importers (if importers are subject to assessment), and 
members of the general public. The Association's proposal specified 
that the Board would consist of eight U.S. importers, one U.S. first 
handler, seven foreign producers, one public member, and two non-voting 
U.S. wholesalers and/or retailers of mangos. In reviewing the 
Association's proposal, the Department determined that an alternative 
composition of the Board would be more appropriate. Therefore, this 
proposed rule provides for the Board to consist of eight U.S. 
importers, one U.S. first handler, two U.S. producers, seven foreign 
producers, and two non-voting U.S. wholesalers and/or retailers.
    Section 516 authorizes an order to provide for exemption of de 
minimis quantities of an agricultural commodity; different payment and 
reporting schedules; coverage of research, promotion, and information 
activities to expand, improve, or make more efficient the marketing or 
use of an agricultural commodity in both domestic and foreign markets; 
provision for reserve funds; provision for credits for generic and 
branded activities; and assessment of imports.
    In addition, section 518 of the Act provides for referenda to 
ascertain approval of an order to be conducted either prior to its 
going into effect or within 3 years after assessments first begin under 
the order. An order also may provide for its approval in a referendum 
to be based upon (1) approval by a majority of those persons voting; 
(2) persons voting for approval who represent a majority of the volume 
of the agricultural commodity; or (3) a majority of those persons 
voting for approval who also represent a majority of the volume of the 
agricultural commodity.
    This proposal includes provisions for domestic market expansion and 
improvement, reserve funds, and an initial referendum to be conducted 
prior to the Order going into effect. Approval would be based upon a 
majority of the first handlers and importers of mangos represented by 
those voting in the referendum.
    While we have performed this Initial Regulatory Flexibility 
Analysis regarding the impact of this proposed rule on small entities, 
in order to have as much data as possible for a more comprehensive 
analysis of the effects of this rule on small entities, we are inviting 
comments concerning potential effects. In particular, we are interested 
in determining the number and kind of small entities that may incur 
benefits or costs from implementation of this proposed rule and 
information on the expected benefits or costs.

Paperwork Reduction Act

    In accordance with 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 may be 
imposed by this Order have been submitted to OMB for approval. Those 
requirements will not become effective prior to OMB review.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number for background form (number 1 below): 0505-0001
    Expiration date of approval: August 31, 2002.
    OMB Number for other information collections: 0581-NEW.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in the request 
are essential to carry out the intent of the Act.
    In addition, there will be the additional burden on first handlers 
and importers voting in referenda. The referendum ballot, which 
represents the information collection requirement relating to 
referenda, is addressed in a proposed rule on referendum procedures 
which is published

[[Page 54911]]

separately in this issue of the Federal Register.
    Under the proposed program, first handlers would be required to pay 
assessments and file reports with and submit assessments to the Board. 
While the proposed Order would impose certain recordkeeping 
requirements on first handlers, information required under the proposed 
Order could be compiled from records currently maintained. Such records 
shall be retained for at least two years beyond the marketing year of 
their applicability.
    An estimated 89 respondents would provide information to the Board. 
They would be: 5 first handlers covered by the program, 3 exempt first 
handlers, 55 importers covered by the program, 3 exempt importers, 4 
domestic producer nominees, 1 foreign producer organization, 14 foreign 
producer nominees, and 4 wholesaler and/or retailer nominees. The 
estimated total cost of providing information to the Board by all 
respondents would be $783.34. The estimated cost for all first handlers 
covered by the program would be $336.66 or $67.33 per first handler 
covered by the program; $7.50 for all exempt first handlers or $2.50 
per exempt first handler; $393.34 for all importers covered by the 
program or $7.15 per importer covered by the program; $7.50 for all 
exempt importers or $2.50 for each exempt importer; $6.67 for all 
domestic producer nominees or $1.67 per nominee; $1.67 for the foreign 
producer organization; $23.33 for all foreign producer nominees or 
$1.67 per nominee; and $6.67 for all wholesaler and/or retailer 
nominees or $1.67 for each nominee. These totals have been estimated by 
multiplying total burden hours requested by $10.00 per hour, a sum 
deemed to be reasonable should the respondents be compensated for their 
time.
    The proposed Order's provisions have been carefully reviewed, and 
every effort has been made to minimize any unnecessary recordkeeping 
costs or requirements, including efforts to utilize information already 
submitted under other mango programs administered by USDA.
    The proposed forms would require the minimum information necessary 
to effectively carry out the requirements of the program, and their use 
is necessary to fulfill the intent of the Act. Such information can be 
supplied without data processing equipment or outside technical 
expertise. In addition, there are no additional training requirements 
for individuals filling out reports and remitting assessments to the 
Board. The forms would be simple, easy to understand, and place as 
small a burden as possible on the person required to file the 
information.
    Collecting information monthly during the production season would 
coincide with normal industry business practices. Reporting other than 
monthly would impose an additional and unnecessary recordkeeping burden 
on first handlers and importers. The timing and frequency of collecting 
information are intended to meet the needs of the industry while 
minimizing the amount of work necessary to fill out the required 
reports. In addition, the information to be included on these forms is 
not available from other sources because such information relates 
specifically to individual first handlers who are subject to the 
provisions of the Act. The requirement to keep records for two years is 
consistent with normal industry practices.
    Therefore, there is no practical method for collecting the required 
information without the use of these forms.
    Information collection requirements that are included in this 
proposal include:
    (1) A Background Information Form.
    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hours per response for each 
Board nominee.
    Respondents: First handlers, importers, domestic producers, foreign 
producers, and wholesalers and/or retailers.
    Estimated number of Respondents: 40 for initial nominations, 13 in 
subsequent years.
    Estimated number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 20 hours for the 
initial nominations and 6.7 hours annually thereafter.
    (2) Voting in the Nomination Process.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per response.
    Respondents: First handlers, importers, domestic producers, and a 
foreign producer organization.
    Estimated number of Respondents: 65.
    Estimated Number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 11 hours.
    (3) An Exemption Application for First Handlers and Importers Who 
Will Be Exempt from Assessments.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
exempt first handler and importer.
    Respondents: Exempt First handlers and importers.
    Estimated Number of Respondents: 6.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 1.5 hours.
    (4) Monthly Report by Each First Handler of Mangos.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per each first handler 
reporting on mangos handled.
    Respondents: First handlers.
    Estimated number of Respondents: 5.
    Estimated number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 30 hours.
    (5) A Requirement To Maintain Records Sufficient To Verify Reports 
Submitted Under the Order.
    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.5 hours per recordkeeper 
maintaining such records.
    Respondents: First handlers and importers.
    Estimated Number of Respondents: 60.
    Estimated Total Annual Burden of Respondents: 30 hours.
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of functions of the 
Order and the USDA's oversight of the program, including whether the 
information will have practical utility; (b) the accuracy of USDA's 
estimate of the burden of the proposed collection of information, 
including the validity of the methodology and assumption used; (c) ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and (d) ways to minimize the burden of the collection of 
information on those who are to respond, including the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0581-NEW. In 
addition, the docket number, date, and page number of this issue of the 
Federal Register also should be referenced. Comments should be sent to 
the USDA Docket Clerk and the OMB Desk Officer for Agriculture at the 
addresses and within the time frames listed above. All comments 
received will be available for public inspection during regular 
business hours at the same address. All responses to this notice will 
be

[[Page 54912]]

summarized and included in the request for OMB approval.
    OMB is required to make a decision concerning the collection of 
information contained in this rule between 30 and 60 days after 
publication. Therefore, a comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication.

Background

    The Act authorizes the Department, under a generic authority, to 
establish agricultural commodity research and promotion orders. The Act 
provides for a number of optional provisions that allow the tailoring 
of orders for different commodities. Section 516 of the Act provides 
permissive terms for orders, and other sections provide for 
alternatives. For example, section 514 of the Act provides for orders 
applicable to: (1) Producers; (2) first handlers and others in the 
marketing chain as appropriate; and (3) importers (if importers are 
subject to assessment). Section 516 authorizes an order to provide for 
exemption of de minimis quantities of an agricultural commodity; 
different payment and reporting schedules; coverage of research, 
promotion, and information activities to expand, improve, or make more 
efficient the marketing or use of an agricultural commodity in both 
domestic and foreign markets; provision for reserve funds; provision 
for credits for generic and branded activities; and assessment of 
imports. In addition, section 518 of the Act provides for referenda to 
ascertain approval of an order to be conducted either prior to its 
going into effect or within 3 years after assessments first begin under 
an order. An order also may provide for its approval in a referendum 
based upon different voting patterns. Section 515 provides for 
establishment of a board from among producers, first handlers and 
others in the marketing chain as appropriate, and importers, if imports 
are subject to assessment.
    This proposed Order includes provisions for domestic market 
expansion and improvement, reserve funds, and an initial referendum to 
be conducted prior to the program going into effect. Approval would be 
based upon a majority of the first handlers and importers voting in the 
referendum.
    The Association has requested the establishment of a Mango 
Promotion, Research, and Information Order (Order) pursuant to the Act. 
The Act authorizes the establishment and operation of generic promotion 
programs which may include a combination of promotion, research, 
industry information, and consumer information activities funded by 
mandatory assessments. These programs are designed to maintain and 
expand markets and uses for agricultural commodities. This proposal 
would provide for the development and financing of an effective and 
coordinated program of research, promotion, and information for mangos. 
The purpose of the program would be to increase consumption of mangos 
in the United States.
    The program would not become effective until approved in a 
referendum conducted by USDA. Section 518 of the Act provides for USDA 
to: (1) Conduct an initial referendum, preceding a proposed Order's 
effective date, among persons who would pay assessments under the 
program; or (2) implement a proposed Order, pending the conduct of a 
referendum, among persons subject to assessments, within three years 
after assessments first begin.
    In accordance with section 518(e) of the Act, the results of the 
referendum must be determined one of three ways (1) by a majority of 
those persons voting; (2) by persons voting for approval who represent 
a majority of the volume of the agricultural commodity; or (3) by a 
majority of those persons voting for approval who also represent a 
majority of the volume of the agricultural commodity.
    The Association has recommended that the Department conduct a 
referendum in which approval of the proposed Order would be based on a 
majority of the eligible first handlers and importers voting in the 
referendum. The Association has also recommended that a referendum be 
conducted prior to the proposed Order going into effect.
    In accordance with the Act, USDA would oversee the program's 
operations. In addition, the Act requires the Department to conduct 
subsequent referenda: (1) Not later than 7 years after assessments 
first begin under the proposed Order; or (2) at the request of the 
Board established under the proposed Order; or (3) at the request of 10 
percent or more of the number of persons eligible to vote. The 
Association has requested that a referendum be conducted every five 
years to determine if first handlers and importers want the program to 
continue.
    In addition to these criteria, the Act provides that the Department 
may conduct a referendum at any time to determine whether the 
continuation, suspension, or termination of the proposed Order or a 
provision of the proposed Order is favored by persons eligible to vote.
    A national research and promotion program for mangos would help the 
industry to increase consumption of mangos in the United States.
    Worldwide, mangos rank first in terms of overall fruit consumption 
per capita. In the United States, mango consumption currently ranked 
sixteenth at 1.8 pounds per capita in 2000, according to ERS. In 
contrast, bananas ranked number one in the United States with a per 
capita consumption of 29.2 pounds. According to the Association, the 
low level of mango consumption is due, in part, to lack of product 
awareness. U.S. consumers are largely unfamiliar with the varieties of 
mangos, their nutritional benefits, and how to handle them.
    Except for a pilot project conducted by the Association with 
voluntary contributions in 1999, mango promotion has been virtually 
non-existent in the United States. There are no large industry members 
capable of promoting the commodity independently. The mango industry is 
fragmented. Distribution is conducted by a large number of small 
importers receiving product from multiple countries of origin. This 
makes coordinated research and promotion efforts extremely difficult in 
the absence of a national program.
    Average annual U.S. mango prices have been declining since 1990. 
Increased supply accompanied by current demand levels will most likely 
yield lower wholesale prices in the future.
    A national program would generate funds through mandatory 
assessments on domestic and imported mangos to be used to conduct 
research and market development strategies such as sales promotion, 
publicity, public relations, and advertising. Such a program would also 
provide centralized communications and facilitate better distribution 
management for industry members. Section 516(f) of the Act allows an 
order to authorize the levying of assessments on imports of the 
commodity covered by the program or on products containing that 
commodity, at a rate comparable to the rate determined for the domestic 
agricultural commodity covered by the proposed Order. The Association 
has proposed to assess imports.
    The assessment levied on domestically-produced and imported mangos 
would be used to pay for promotion, research, and consumer and industry 
information as well as administration, maintenance, and functioning of 
the Board. Expenses incurred by the Department in implementing and 
administering the proposed Order, including referenda costs, also would 
be paid from

[[Page 54913]]

assessments. Sections 516(e)(1) and (2) of the Act state that an order 
may provide for credits of assessments for generic and branded 
activities. The Association has elected not to propose credits for 
generic or branded activities. Therefore, the terms ``generic 
activities'' and ``branded activities'' are not defined in the proposed 
Order, and credits for assessments would not be allowed.
    The Association's initial proposal, dated June 29, 2001, provided 
for the assessments to be paid by producers and included no exemptions. 
Subsequently, the Association sent a letter to the Department to revise 
its proposal by changing the U.S. producer assessment to a U.S. first 
handler assessment and to exempt handlers and importers of less than 
500,000 pounds of mangos annually and exports of U.S. mangos. These 
modifications reflected a change in industry preferences for program 
coverage.
    First handlers would be required to pay assessments to the Board 
and maintain records on all mangos handled, including mangos produced 
by a first handler.
    Assessments on imported mangos would be collected by Customs at the 
time of entry into the United States and remitted to the Board.
    All information obtained from persons subject to this proposed 
Order as a result of recordkeeping and reporting requirements would be 
kept confidential by all officers, employees, and agents of USDA and of 
the Board. However, this information may be disclosed only if the 
Department considers the information relevant, and the information is 
revealed in a judicial proceeding or administrative hearing brought at 
the direction or on the request of the Department or to which the 
Department or any officer of USDA is a party. Other exceptions for 
disclosure of confidential information would include the issuance of 
general statements based on reports or on information relating to a 
number of persons subject to an order if the statements do not identify 
the information furnished by any person or the publication, by 
direction of the Department of the name of any person violating an 
order and a statement of the particular provisions of an order violated 
by the person.
    The proposed Order provides for USDA to conduct an initial 
referendum preceding the proposed Order's effective date. Therefore, 
approval of the proposed Order will be determined by a majority of the 
eligible first handlers and importers voting in the referendum. The 
proposed Order also provides for subsequent referenda to be conducted 
(1) every 5 years after the program is in effect; (2) at the request of 
the Board established under the proposed Order; or (3) when requested 
by 10 percent or more of first handlers and importers of mangos covered 
by the proposed Order. In addition, the Department may conduct a 
referendum at any time.
    The Act requires that an order provide for the establishment of a 
board to administer the program under USDA supervision. The Department 
modified the Association's proposal by adding two domestic producers 
and eliminating the public member position to help ensure that the 
program will benefit the domestic mango industry. Therefore, this rule 
provides for a 20-member Board consisting of eight U.S. importers, one 
U.S. first handler, two U.S. producers, seven foreign producers, and 
two non-voting wholesalers and/or retailers. In addition, the 
Department included a separate definition for foreign producers.
    To ensure fair and equitable representation of the mango industry 
on the Board, the Act requires membership on the Board to reflect the 
geographical distribution of the production of mangos and the quantity 
or value of imports. We anticipate that this program will assist 
domestic producers by increasing the demand for mangos. It is possible 
that domestic production will expand accordingly, in which case 
reapportioning of the Board would be required under the Order.
    Upon implementation of the proposed Order and pursuant to the Act, 
at least once every five years, the Board will review the geographical 
distribution of production of mangos in the United States, the 
geographical distribution of the importation of mangos into the United 
States, the quantity of mangos produced in the United States, and the 
quantity of mangos imported into the United States. The review will be 
based on Board assessment records and statistics from the Department. 
If warranted, the Board will recommend to the Department that 
membership on the Board be altered to reflect any changes in 
geographical distribution of domestic mango production and importation 
and the quantity of domestic production and imports. In order to help 
ensure equitable representation of importers and first handlers on the 
Board, additional first handlers may be added to the Board if the 
quantity of domestic production increases to a level where first 
handlers would be entitled to an additional member on the Board. 
Currently, each importer member represents about 42.6 million pounds of 
imported mangos, and the first handler member represents about 6.2 
million pounds of domestic mango production.
    Board members will serve terms of three years and be able to serve 
a maximum of two consecutive terms. When the Board is first 
established, the U.S. first handler, three U.S. importers, one U.S. 
producer, and two foreign producers will be assigned initial terms of 
four years; three U.S. importers, one U.S. producer, and three foreign 
producers will be assigned initial terms of three years; and two U.S. 
importers, two foreign producers, and the two wholesalers and/or 
retailers will be assigned initial terms of two years. Thereafter, each 
of these positions will carry a three-year term. Members serving 
initial terms of two or four years will be eligible to serve a second 
term of three years. Each term of office will end on December 31, with 
new terms of office beginning on January 1.
    The proposed Order submitted by the Association is summarized as 
follows:
    Sections 1206.1 through 1206.24 of the proposed Order define 
certain terms, such as mango, first handler, and importer, which are 
used in the proposed Order.
    Sections 1206.30 through 1206.37 include provisions relating to the 
Board. These provisions cover establishment and membership, nominations 
and appointments, term of office, vacancies, procedures, compensation 
and reimbursement, powers, duties and prohibited activities of the 
Board, which is the governing body authorized to administer the 
proposed Order through the implementation of programs, plans, projects, 
budgets, and contracts to promote and disseminate information about 
mangos, subject to oversight of the Department.
    Sections 1206.40 through 1206.43 cover budget review and approval; 
financial statements; authorize the collection of assessments; specify 
how assessments would be used; specify who pays the assessment and how; 
exemptions; and authorize the imposition of a late-payment charge on 
past-due assessments.
    The Association recommends a proposed assessment rate of \1/2\ cent 
per pound for domestic mangos and imported mangos. The assessment rate 
will be reviewed and may be modified with the approval of the 
Department, after the first referendum is conducted as stated in 
Sec. 1206.71(b). Persons failing to remit total assessments due in a 
timely manner may also be subject to actions under federal debt 
collection procedures as set forth in 7 CFR 3.1 through 3.36 for all 
research and promotion programs administered by USDA (60 FR 12533, 
March 7, 1995).

[[Page 54914]]

    Sections 1206.50 through 1206.52 address programs, plans, and 
projects; require the Board to periodically conduct an independent 
review of its overall program; and address patents, copyrights, 
trademarks, information, publications, and product formulations 
developed through the use of assessment funds.
    Sections 1206.60 through 1206.62 concern reporting and 
recordkeeping requirements for persons subject to the Order and protect 
the confidentiality of information from such books, records, or 
reports.
    Sections 1206.70 through 1206.78 describe the rights of the 
Secretary of Agriculture (Secretary); address referenda; authorize the 
Secretary to suspend or terminate the Order when deemed appropriate; 
prescribe proceedings after suspension or termination; and address 
personal liability, separability, amendments, and the OMB control 
number.
    In addition to adding a definition of foreign producer and changing 
the composition of the Board, the Department made minor changes to the 
Association's proposal which do not materially affect the program.
    The proposal set forth below has not received the approval of the 
Department.
    All written comments received in response to this rule by the date 
specified will be considered prior to finalizing this action.

List of Subjects in 7 CFR Part 1206

    Administrative practice and procedure, Advertising, Consumer 
information, Mangos, Marketing agreements, Promotion, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, it is proposed that 
Title 7, Chapter XI of the Code of Federal Regulations be amended as 
follows:
    1. Part 1206 is proposed to be added as follows:

PART 1206--MANGO PROMOTION, RESEARCH, AND INFORMATION

Subpart A--Mango Promotion, Research, and Information Order

Definitions

Sec.
1206.1   Act.
1206.2   Board.
1206.3   Conflict of interest.
1206.4   Customs.
1206.5   Department.
1206.6   First handler.
1206.7   Fiscal period.
1206.8   Foreign producer.
1206.9   Importer.
1206.10   Information.
1206.11   Mangos.
1206.12   Market or marketing.
1206.13   Order.
1206.14   Part and subpart.
1206.15   Person.
1206.16   Producer.
1206.17   Promotion.
1206.18   Research.
1206.19   Retailer.
1206.20   Secretary.
1206.21   Suspend.
1206.22   Terminate.
1206.23   United States.
1206.24   Wholesaler.

National Mango Promotion Board

1206.30   Establishment and membership.
1206.31   Nominations and appointments.
1206.32   Term of office.
1206.33   Vacancies.
1206.34   Procedure.
1206.35   Compensation and reimbursement.
1206.36   Powers and duties.
1206.37   Prohibited activities.

Expenses and Assessments

1206.40   Budget and expenses.
1206.41   Financial statements.
1206.42   Assessments.
1206.43   Exemptions.

Promotion, Research, and Information

1206.50   Programs, plans, and projects.
1206.51   Independent evaluation.
1206.52   Patents, copyrights, trademarks, information, 
publications, and product formulations.

Reports, Books, and Records

1206.60   Reports.
1206.61   Books and records.
1206.62   Confidential treatment.

Miscellaneous

1206.70   Right of the Secretary.
1206.71   Referenda.
1206.72   Suspension and termination.
1206.73   Proceedings after termination.
1206.74   Effect of termination or amendment.
1206.75   Personal liability.
1206.76   Separability.
1206.77   Amendments.
1206.78   OMB control number.

    Authority: 7 U.S.C. 7411-7425.

Subpart A--Mango Promotion, Research, and Information Order

Definitions


Sec. 1206.1  Act.

    Act means the Commodity Promotion, Research, and Information Act of 
1996 (7 U.S.C. 7411-7425; Public Law 104-127; 110 Stat. 1029), or any 
amendments thereto.


Sec. 1206.2  Board.

    Board or National Mango Promotion Board means the administrative 
body established pursuant to Sec. 1206.30, or such other name as 
recommended by the Board and approved by the Department.


Sec. 1206.3  Conflict of interest.

    Conflict of interest means a situation in which a member or 
employee of the Board has a direct or indirect financial interest in a 
person who performs a service for, or enters into a contract with, the 
Board for anything of economic value.


Sec. 1206.4  Customs.

    Customs means the U.S. Customs Service of the U.S. Department of 
the Treasury.


Sec. 1206.5  Department.

    Department means the U.S. Department of Agriculture or any officer 
or employee of the Department to whom authority has heretofore been 
delegated, or to whom authority may hereafter be delegated, to act in 
the Secretary's stead.


Sec. 1206.6  First handler.

    First handler any person, (excluding a common or contract carrier), 
receiving 500,000 pounds or more of mangos from producers and who as 
owner, agent, or otherwise ships or causes mangos to be shipped as 
specified in the Order. This definition includes those engaged in the 
business of buying, selling and/or offering for sale; receiving; 
packing; grading; marketing; or distributing mangos in commercial 
quantities. This includes only retailers who purchase, acquire, or 
handle mangos on behalf of any producer. The term first handler 
includes a producer who handles or markets mangos of the producer's own 
production.


Sec. 1206.7  Fiscal period.

    Fiscal period means a calendar year from January 1 through December 
31, or such other period as recommended by the Board and approved by 
the Department.


Sec. 1206.8  Foreign producer.

    Foreign producer means any person who is engaged in the production 
and sale of mangos outside of the United States and who owns, or shares 
the ownership and risk of loss of, the crop for sale in the U.S. 
market.


Sec. 1206.9  Importer.

    Importer means any person who imports 500,000 or more pounds of 
mangos into the United States as a principal or as an agent, broker, or 
consignee of any person who produces or handles mangos outside of the 
United States for sale in the United States, and who is listed as the 
importer of record for such mangos.


Sec. 1206.10  Information.

    Information means information and programs that are designed to 
develop

[[Page 54915]]

new markets, marketing strategies, increase market efficiency, and 
activities that are designed to enhance the image of mangos in the 
United States. These include:
    (a) Consumer information, which means any action taken to provide 
information to, and broaden the understanding of, the general public 
regarding the consumption, use, nutritional attributes, and care of 
mangos; and
    (b) Industry information, which means information and programs that 
will lead to the development of new markets, new marketing strategies, 
or increased efficiency for the mango industry, and activities to 
enhance the image of the mango industry.


Sec. 1206.11  Mangos.

    Mangos means all fresh fruit of Mangifera indica L. of the family 
Anacardiaceae.


Sec. 1206.12  Market or marketing.

    Marketing means the sale or other disposition of mangos in the U.S. 
domestic market. To market means to sell or otherwise dispose of mangos 
in the United States.


Sec. 1206.13  Order.

    Order means an order issued by the Department under section 514 of 
the Act that provides for a program of generic promotion, research, and 
information regarding agricultural commodities authorized under the 
Act.


Sec. 1206.14  Part and subpart.

    Part means the Mango Promotion, Research, and Information Order and 
all rules, regulations, and supplemental orders issued pursuant to the 
Act and the Order. The Order shall be a subpart of such part.


Sec. 1206.15  Person.

    Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity.


Sec. 1206.16  Producer.

    Producer means any person who is engaged in the production and sale 
of mangos in the United States and who owns, or shares the ownership 
and risk of loss of, the crop or a person who is engaged in the 
business of producing, or causing mangos to be produced, mangos beyond 
the person's own family use and having value at first point of sale.


Sec. 1206.17  Promotion.

    Promotion means any action taken to present a favorable image of 
mangos to the general public and the food industry for the purpose of 
improving the competitive position of mangos and stimulating the sale 
of mangos in the United States. This includes paid advertising and 
public relations.


Sec. 1206.18  Research.

    Research means any type of test, study, or analysis designed to 
advance the image, desirability, use, marketability, production, 
product development, or quality of mangos, including research relating 
to nutritional value, cost of production, new product development, 
varietal development, nutritional value and benefits, and marketing of 
mangos.


Sec. 1206.19  Retailer.

    Retailer means a person engaged in the business of selling mangos 
only to consumers.


Sec. 1206.20  Secretary.

    Secretary means the Secretary of Agriculture of the United States.


Sec. 1206.21  Suspend.

    Suspend means to issue a rule under section 553 of title 5, U.S.C., 
to temporarily prevent the operation of an order or part thereof during 
a particular period of time specified in the rule.


Sec. 1206.22  Terminate.

    Terminate means to issue a rule under section 553 of title 5, 
U.S.C., to cancel permanently the operation of an order or part thereof 
beginning on a date certain specified in the rule.


Sec. 1206.23  United States.

    United States or U.S. means collectively the 50 states, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec. 1206.24  Wholesaler.

    Wholesaler means any person engaged in the purchase, assembly, 
transportation, storage, and distribution of mangos for sale to other 
wholesalers, retailers, and foodservice firms.

National Mango Promotion Board


Sec. 1206.30  Establishment and membership.

    (a) Establishment of the National Mango Promotion Board. There is 
hereby established a National Mango Promotion Board composed of eight 
importers, one first handler, two domestic producers, seven foreign 
producers, and two non-voting wholesalers and/or retailers of mangos in 
the United States. The chairperson shall reside in the United States 
and the Board office shall also be located in the United States.
    (b) Importer districts. The importer seats shall be allocated based 
on the volume of mangos imported into the Customs Districts identified 
by their name and Code Number as defined in the Harmonized Tariff 
Schedule of the United States. The initial allocation will be two seats 
for District I, three seats for District II, two seats for District 
III, and one seat for District IV.
    (1) District I includes the Customs Districts of Portland, ME (01), 
St. Albans, VT (02), Boston, MA (04), Providence, RI (05), Ogdensburg, 
NY (07), Buffalo, NY (09), New York City, NY (10), Philadelphia, PA 
(11), Baltimore, MD (13), Norfolk, VA (14), Charlotte, NC (15), 
Charleston, SC (16), Savannah, GA (17), Tampa, FL (18), San Juan, PR 
(49), Virgin Islands of the United States (51), Miami, FL (52) and 
Washington, DC (54).
    (2) District II includes the Customs Districts of Mobile, AL (19), 
New Orleans, LA (20), Port Arthur, TX (21), Laredo, TX (23), 
Minneapolis, MN (35), Duluth, MN (36), Milwaukee, WI (37), Detroit, MI 
(38), Chicago, IL (39), Cleveland, OH (41), St. Louis, MO (45), 
Houston, TX (53), and Dallas-Fort Worth, TX (55).
    (3) District III includes the Customs Districts of El Paso, TX 
(24), Nogales, AZ (26), Great Falls, MT (33), and Pembina, ND (34).
    (4) District IV includes the Customs Districts of San Diego, CA 
(25), Los Angeles, CA (27), San Francisco, CA (28), Columbia-Snake, OR 
(29), Seattle, WA (30), Anchorage, AK (31), and Honolulu, HI (32).
    (c) Adjustment of membership. At least once every five years, the 
Board will review the geographical distribution of production of mangos 
in the United States, the geographical distribution of the importation 
of mangos into the United States, the quantity of mangos produced in 
the United States, and the quantity of mangos imported into the United 
States. The review will be based on Board assessment records and 
statistics from the Department. If warranted, the Board will recommend 
to the Department that membership on the Board be altered to reflect 
any changes in geographical distribution of domestic mango production 
and importation and the quantity of domestic production and imports. To 
ensure equitable representation, additional first handlers may be added 
to the Board to reflect increases in domestic production.


Sec. 1206.31  Nominations and appointments.

    (a) Voting for first handler, importer, and domestic producer 
members will be made by mail ballot.
    (b) There shall be two nominees for each position on the Board.

[[Page 54916]]

    (c) Nominations for the initial Board will be handled by the 
Department. Subsequent nominations will be handled by the Board's 
staff.
    (d) Nominees to fill the first handler member position on the Board 
shall be solicited from all known first handlers. The nominees shall be 
placed on a ballot which will be sent to all first handlers for a vote. 
The nominee receiving the highest number of votes and the nominee 
receiving the second highest number of votes shall be submitted to the 
Department as the first handlers' first and second choice nominees.
    (e) Nominees to fill the importer positions on the Board shall be 
solicited from all known importers of mangos. The members from each 
district shall select the nominees for two positions on the Board. Two 
nominees shall be submitted for each position. The nominees shall be 
placed on a ballot which will be sent to importers in the districts for 
a vote. For each position, the nominee receiving the highest number of 
votes and the nominee receiving the second highest number of votes 
shall be submitted to the Department as the importers' first and second 
choice nominees.
    (f) Nominees to fill the domestic producer member positions on the 
Board shall be solicited from all known domestic producers. The 
nominees shall be placed on a ballot which will be sent to all domestic 
producers for a vote. The nominee receiving the highest number of votes 
and the nominee receiving the second highest number of votes shall be 
submitted to the Department as the producers' first and second choice 
nominees.
    (g) Nominees to fill the foreign producer member positions on the 
Board shall be solicited from an organization of foreign mango 
producers. The organization shall submit two nominees for each 
position, and the nominees shall be representative of the major 
countries exporting mangos to the United States.
    (h) The Board will nominate the wholesaler and/or retailer members.
    (i) From the nominations, the Department shall select the members 
of the Board.


Sec. 1206.32  Term of office.

    Board members will serve terms of three years and be able to serve 
a maximum of two consecutive three-year terms. When the Board is first 
established, the first handler, three importers, one domestic producer, 
and two foreign producers will be assigned initial terms of four years; 
three importers, one domestic producer, and three foreign producers 
will be assigned initial terms of three years; and two importers, two 
foreign producers, and the two wholesalers and/or retailers will be 
assigned initial terms of two years. Thereafter, each of these 
positions will carry a full three-year term. Members serving initial 
terms of two or four years will be eligible to serve a second term of 
three years. Each term of office will end on December 31, with new 
terms of office beginning on January 1.


Sec. 1206.33  Vacancies.

    (a) In the event that any member of the Board ceases to be a member 
of the category of members from which the member was appointed to the 
Board, such position shall automatically become vacant.
    (b) If a member of the Board consistently refuses to perform the 
duties of a member of the Board, or if a member of the Board engages in 
acts of dishonesty or willful misconduct, the Board may recommend to 
the Department that the member be removed from office. If the 
Department finds the recommendation of the Board shows adequate cause, 
the Department shall remove such member from office.
    (c) Should any member position become vacant, successors for the 
unexpired term of the member shall be appointed in the manner specified 
in Sec. 1206.31, except that nomination and replacement shall not be 
required if the unexpired term is less than six months.


Sec. 1206.34  Procedure.

    (a) At a Board meeting, it will be considered a quorum when at 
least ten voting members are present.
    (b) At the start of each fiscal period, the Board will select a 
chairperson and vice chairperson who will conduct meetings throughout 
that period.
    (c) All Board members will be notified at least 30 days in advance 
of all Board and committee meetings unless an emergency meeting is 
declared.
    (d) Each voting member of the Board will be entitled to one vote on 
any matter put to the Board, and the motion will carry if supported by 
one vote more than 50 percent of the total votes represented by the 
Board members present.
    (e) It will be considered a quorum at a committee meeting when at 
least one more than half of those assigned to the committee are 
present. Committees may consist of individuals other than Board 
members, and such individuals may vote in committee meetings. Committee 
members shall serve without compensation but shall be reimbursed for 
reasonable travel expenses, as approved by the Board.
    (f) In lieu of voting at a properly convened meeting and, when in 
the opinion of the chairperson of the Board such action is considered 
necessary, the Board may take action if supported by one vote more than 
50 percent of the members by mail, telephone, electronic mail, 
facsimile, or any other means of communication. In that event, all 
members must be notified and provided the opportunity to vote. Any 
action so taken shall have the same force and effect as though such 
action had been taken at a properly convened meeting of the Board. All 
telephone votes shall be confirmed promptly in writing. All votes shall 
be recorded in Board minutes.
    (g) There shall be no voting by proxy.
    (h) The chairperson shall be a voting member and shall reside in 
the U.S.
    (i) The organization of the Board and the procedures for conducting 
meetings of the Board shall be in accordance with its bylaws, which 
shall be established by the Board and approved by the Department.


Sec. 1206.35  Compensation and reimbursement.

    The members of the Board shall serve without compensation but shall 
be reimbursed for reasonable travel expenses, as approved by the Board, 
incurred by them in the performance of their duties as Board members.


Sec. 1206.36  Powers and duties.

    The Board shall have the following powers and duties:
    (a) To administer the Order in accordance with its terms and 
conditions and to collect assessments;
    (b) To develop and recommend to the Department for approval such 
bylaws as may be necessary for the functioning of the Board, and such 
rules as may be necessary to administer the Order, including activities 
authorized to be carried out under the Order;
    (c) To meet, organize, and select from among the members of the 
Board a chairperson, other officers, committees, and subcommittees, as 
the Board determines to be appropriate;
    (d) To employ persons, other than the members, as the Board 
considers necessary to assist the Board in carrying out its duties and 
to determine the compensation and specify the duties of such persons;
    (e) To develop programs, plans, and projects, and enter into 
contracts or agreements, which must be approved by the Department 
before becoming effective, for the development and carrying out of 
programs or projects of research, information, or promotion, and the 
payment of costs thereof with

[[Page 54917]]

funds collected pursuant to this subpart. Each contract or agreement 
shall provide that: any person who enters into a contract or agreement 
with the Board shall develop and submit to the Board a proposed 
activity; keep accurate records of all of its transactions relating to 
the contract or agreement; account for funds received and expended in 
connection with the contract or agreement; make periodic reports to the 
Board of activities conducted under the contract or agreement; and, 
make such other reports available as the Board or the Department 
considers relevant. Furthermore, any contract or agreement shall 
provide that:
    (1) The contractor or agreeing party shall develop and submit to 
the Board a program, plan, or project together with a budget or budgets 
that shall show the estimated cost to be incurred for such program, 
plan, or project;
    (2) The contractor or agreeing party shall keep accurate records of 
all its transactions and make periodic reports to the Board of 
activities conducted, submit accounting for funds received and 
expended, and make such other reports as the Department or the Board 
may require;
    (3) The Department may audit the records of the contracting or 
agreeing party periodically; and
    (4) Any subcontractor who enters into a contract with a Board 
contractor and who receives or otherwise uses funds allocated by the 
Board shall be subject to the same provisions as the contractor.
    (f) To prepare and submit for approval of the Department fiscal 
year budgets in accordance with Sec. 1206.40;
    (g) To maintain such records and books and prepare and submit such 
reports and records from time to time to the Department as the 
Department may prescribe; to make appropriate accounting with respect 
to the receipt and disbursement of all funds entrusted to it; and to 
keep records that accurately reflect the actions and transactions of 
the Board;
    (h) To cause its books to be audited by a competent auditor at the 
end of each fiscal year and at such other times as the Department may 
request, and to submit a report of the audit directly to the 
Department;
    (i) To give the Department the same notice of Board and committee 
meetings as is given to members in order that the Department's 
representative(s) may attend such meetings.
    (j) To act as intermediary between the Department and any first 
handler or importer;
    (k) To furnish to the Department any information or records that 
the Department may request;
    (l) To receive, investigate, and report to the Department 
complaints of violations of the Order;
    (m) To recommend to the Department such amendments to the Order as 
the Board considers appropriate; and
    (n) To work to achieve an effective, continuous, and coordinated 
program of promotion, research, consumer information, evaluation, and 
industry information designed to strengthen the mango industry's 
position in the U.S. domestic market; maintain and expand existing 
markets and uses for mangos; and to carry out programs, plans, and 
projects designed to provide maximum benefits to the mango industry.


Sec. 1206.37  Prohibited activities.

    The Board may not engage in, and shall prohibit the employees and 
agents of the Board from engaging in:
    (a) Any action that would be a conflict of interest; and
    (b) Using funds collected by the Board under the Order to undertake 
any action for the purpose of influencing legislation or governmental 
action or policy, by local, state, national, and foreign governments, 
other than recommending to the Department amendments to the Order.

Expenses and Assessments


Sec. 1206.40  Budget and expenses.

    (a) At least 60 days prior to the beginning of each fiscal year, 
and as may be necessary thereafter, the Board shall prepare and submit 
to the Department a budget for the fiscal year covering its anticipated 
expenses and disbursements in administering this subpart. Each such 
budget shall include:
    (1) A statement of objectives and strategy for each program, plan, 
or project;
    (2) A summary of anticipated revenue, with comparative data or at 
least one preceding year (except for the initial budget);
    (3) A summary of proposed expenditures for each program, plan, or 
project; and
    (4) Staff and administrative expense breakdowns, with comparative 
data for at least one preceding year (except for the initial budget).
    (b) Each budget shall provide adequate funds to defray its proposed 
expenditures and to provide for a reserve as set forth in this subpart.
    (c) Subject to this section, any amendment or addition to an 
approved budget must be approved by the Department, including shifting 
funds from one program, plan, or project to another. Shifts of funds 
which do not cause an increase in the Board's approved budget and which 
are consistent with governing bylaws need not have prior approval by 
the Department.
    (d) The Board is authorized to incur such expenses, including 
provision for a reasonable reserve, as the Department finds are 
reasonable and likely to be incurred by the Board for its maintenance 
and functioning, and to enable it to exercise its powers and perform 
its duties in accordance with the provisions of this subpart. Such 
expenses shall be paid from funds received by the Board.
    (e) With approval of the Department, the Board may borrow money for 
the payment of administrative expenses, subject to the same fiscal, 
budget, and audit controls as other funds of the Board. Any funds 
borrowed by the Board shall be expended only for startup costs and 
capital outlays and are limited to the first year of operation of the 
Board.
    (f) The Board may accept voluntary contributions, but these shall 
only be used to pay expenses incurred in the conduct of programs, 
plans, and projects. Voluntary contributions shall be free from any 
encumbrance by the donor, and the Board shall retain complete control 
of their use.
    (g) The Board shall reimburse the Department for all expenses 
incurred by the Department in the implementation, administration, and 
supervision of the Order, including all referendum costs in connection 
with the Order.
    (h) The Board may not expend for administration, maintenance, and 
functioning of the Board in any fiscal year an amount that exceeds 15 
percent of the assessments and other income received by the Board for 
that fiscal year. Reimbursements to the Department required under 
paragraph (g) of this section are excluded from this limitation on 
spending.
    (i) The Board may establish an operating monetary reserve and may 
carry over to subsequent fiscal periods excess funds in any reserve so 
established: Provided that the funds in the reserve do not exceed one 
fiscal period's budget. Subject to approval by the Department, such 
reserve funds may be used to defray any expenses authorized under this 
part.


Sec. 1206.41  Financial statements.

    (a) As requested by the Department, the Board shall prepare and 
submit financial statements to the Department on a periodic basis. Each 
such financial statement shall include, but not be limited to, a 
balance sheet, income statement, and expense budget. The expense budget 
shall show expenditures during the time period covered by the

[[Page 54918]]

report, year-to-date expenditures, and the unexpended budget.
    (b) Each financial statement shall be submitted to the Department 
within 30 days after the end of the time period to which it applies.
    (c) The Board shall submit annually to the Department an annual 
financial statement within 90 days after the end of the fiscal year to 
which it applies.


Sec. 1206.42  Assessments.

    (a) The funds to cover the Board's expenses shall be paid from 
assessments on first handlers and importers, donations from any person 
not subject to assessments under this Order, and other funds available 
to the Board and subject to the limitations contained therein.
    (b) The assessment rate shall be \1/2\ cent per pound on all 
mangos. The assessment rate will be reviewed and may be modified by the 
Board with the approval of the Department, after the first referendum 
is conducted as stated in Sec. 1206.71(b).
    (c) Domestic mangos. First handlers of domestic mangos are required 
to pay assessments on all mangos handled for the U.S. market. This 
includes mangos of the first handler's own production.
    (d) Imported mangos. Each importer of mangos shall pay an 
assessment to the Board through Customs on mangos imported for 
marketing in the United States.
    (1) The assessment rate for imported mangos shall be the same or 
equivalent to the rate for mangos produced in the United States.
    (2) The import assessment shall be uniformly applied to imported 
mangos that are identified by the numbers 0804.50.4040 and 0804.50.6040 
in the Harmonized Tariff Schedule of the United States or any other 
numbers used to identify mangos.
    (3) The assessments due on imported mangos shall be paid when they 
enter or are withdrawn for consumption in the United States.
    (e) Each person responsible for remitting assessments under 
paragraph (c) of this section shall remit the amounts due to the 
Board's office on a monthly basis no later than the fifteenth day of 
the month following the month in which the mangos were marketed, in 
such manner as prescribed by the Board.
    (f) A late payment charge shall be imposed on any person failing to 
remit to the Board the total amount for which the person is liable by 
the payment due date established under this section. The amount of the 
late payment charge shall be prescribed by the Department.
    (g) An additional charge shall be imposed on any person subject to 
a late payment charge in the form of interest on the outstanding 
portion of any amount for which the person is liable. The rate of 
interest shall be prescribed by the Department.
    (h) Persons failing to remit total assessments due in a timely 
manner may also be subject to actions under federal debt collection 
procedures.
    (i) The Board may authorize other organizations to collect 
assessments on its behalf with the approval of the Department.


Sec. 1206.43  Exemptions.

    (a) Any first handler or importer of less than 500,000 pounds of 
mangos annually may claim an exemption from the assessments required 
under Sec. 1206.42.
    (b) A first handler or importer desiring an exemption shall apply 
to the Board, on a form provided by the Board, for a certificate of 
exemption. A first handler shall certify that the first handler will 
handle less than 500,000 pounds of domestic mangos for the fiscal year 
for which the exemption is claimed. An importer shall certify that the 
importer will import less than 500,000 pounds of mangos during the 
fiscal year for which the exemption is claimed.
    (c) Upon receipt of an application, the Board shall determine 
whether an exemption may be granted. The Board then will issue, if 
deemed appropriate, a certificate of exemption to each person who is 
eligible to receive one. It is the responsibility of these persons to 
retain a copy of the certificate of exemption.
    (d) Importers who receive a certificate of exemption shall be 
eligible for reimbursement of assessments collected by Customs. These 
importers shall apply to the Board for reimbursement of any assessments 
paid. No interest will be paid on the assessments collected by Customs. 
Requests for reimbursement shall be submitted to the Board within 90 
days of the last day of the fiscal year the mangos were actually 
imported.
    (e) Any person who desires an exemption from assessments for a 
subsequent fiscal year shall reapply to the Board, on a form provided 
by the Board, for a certificate of exemption.
    (f) The Board may require persons receiving an exemption from 
assessments to provide to the Board reports on the disposition of 
exempt mangos and, in the case of importers, proof of payment of 
assessments.

Promotion, Research, and Information


Sec. 1206.50  Programs, plans, and projects.

    (a) The Board shall receive and evaluate, or on its own initiative 
develop, and submit to the Department for approval any program, plan, 
or project authorized under this subpart. Such programs, plans, or 
projects shall provide for:
    (1) The establishment, issuance, effectuation, and administration 
of appropriate programs for promotion, research, and information, 
including producer and consumer information, with respect to mangos; 
and
    (2) The establishment and conduct of research with respect to: the 
use, nutritional value and benefits, sale, distribution, and marketing 
of mangos in the United States; the creation of new products thereof, 
to the end that the marketing and use of mangos in the United States 
may be encouraged, expanded, improved, or made more acceptable; and to 
advance the image, desirability, or quality of mangos in the United 
States.
    (b) No program, plan, or project shall be implemented prior to its 
approval by the Department. Once a program, plan, or project is so 
approved, the Board shall take appropriate steps to implement it.
    (c) Each program, plan, or project implemented under this subpart 
shall be reviewed or evaluated periodically by the Board to ensure that 
it contributes to an effective program of promotion, research, or 
information. If it is found by the Board that any such program, plan, 
or project does not contribute to an effective program of promotion, 
research, or information, then the Board shall terminate such program, 
plan, or project.
    (d) No program, plan, or project including advertising shall be 
false or misleading or disparaging to another agricultural commodity. 
Mangos of all origins shall be treated equally.


Sec. 1206.51  Independent evaluation.

    The Board shall, not less often than every five years, authorize 
and fund, from funds otherwise available to the Board, an independent 
evaluation of the effectiveness of the Order and other programs 
conducted by the Board pursuant to the Act. The Board shall submit to 
the Department, and make available to the public, the results of each 
periodic independent evaluation conducted under this paragraph.


Sec. 1206.52  Patents, copyrights, trademarks, information, 
publications, and product formulations.

    Patents, copyrights, trademarks, information, publications, and 
product formulations developed through the use of funds received by the 
Board under this subpart shall be the property of the U.S. Government, 
as represented by the Board, and shall, along with any rents,

[[Page 54919]]

royalties, residual payments, or other income from the rental, sales, 
leasing, franchising, or other uses of such patents, copyrights, 
trademarks, information, publications, or product formulations, inure 
to the benefit of the Board; shall be considered income subject to the 
same fiscal, budget, and audit controls as other funds of the Board; 
and may be licensed subject to approval by the Department. Upon 
termination of this subpart, Sec. 1206.73 shall apply to determine 
disposition of all such property.

Reports, Books, and Records


Sec. 1206.60  Reports.

    (a) Each first handler will be required to provide to the Board 
periodically such information as may be required by the Board, with the 
approval of the Department, which may include but not be limited to the 
following:
    (1) Number of pounds of domestic mangos handled;
    (2) Number of pounds of domestic mangos on which an assessment was 
paid;
    (3) Name and address of the producers from whom the first handler 
has received mangos;
    (4) Date that assessment payments were made on each pound of 
domestic mangos handled;
    (5) Number of pounds of domestic mangos exported;
    (6) The first handler's tax identification number;
    (b) Each importer may be required to provide to the Board 
periodically such information as may be required by the Board, with the 
approval of the Department, which may include but not be limited to the 
following:
    (1) Number of pounds of mangos imported;
    (2) Number of pounds of mangos on which an assessment was paid;
    (3) Name, address, and tax identification number of the importer; 
and
    (4) Date that assessment payments were made on each pound imported.


Sec. 1206.61  Books and records.

    Each first handler and importer shall maintain and make available 
for inspection by the Department such books and records as are 
necessary to carry out the provisions of this part, including such 
records as are necessary to verify any reports required. Such records 
shall be retained for at least two years beyond the fiscal period of 
their applicability.


Sec. 1206.62  Confidential treatment.

    All information obtained from books, records, or reports under the 
Act and this part shall be kept confidential by all persons, including 
all employees and former employees of the Board, all officers and 
employees and former officers and employees of contracting and 
subcontracting agencies or agreeing parties having access to such 
information. Such information shall not be available to Board members, 
first handlers, or importers. Only those persons having a specific need 
for such information to effectively administer the provisions of this 
subpart shall have access to such information. Only such information so 
obtained as the Secretary deems relevant shall be disclosed by them, 
and then only in a judicial proceeding or administrative hearing 
brought at the direction, or on the request, of the Secretary, or to 
which the Secretary or any officer of the United States is a party, and 
involving this subpart. Nothing in this section shall be deemed to 
prohibit:
    (a) The issuance of general statements based upon the reports of 
the number of persons subject to this subpart or statistical data 
collected therefrom, which statements do not identify the information 
furnished by any person; and
    (b) The publication, by direction of the Secretary, of the name of 
any person who has been adjudged to have violated this subpart, 
together with a statement of the particular provisions of this subpart 
violated by such person.

Miscellaneous


Sec. 1206.70  Right of the Secretary.

    All fiscal matters, programs, plans, or projects, rules or 
regulations, reports, or other substantive actions proposed and 
prepared by the Board shall be submitted to the Secretary for approval.


Sec. 1206.71  Referenda.

    (a) Initial referendum. The Order shall not become effective 
unless:
    (1) The Department determines that the Order is consistent with and 
will effectuate the purposes of the Act; and
    (2) The Order is approved by a majority of the first handlers and 
importers voting, who, during a representative period determined by the 
Department, have been engaged in the handling or importation of mangos.
    (b) Subsequent referenda. Every five years, the Department shall 
hold a referendum to determine whether first handlers and importers of 
mangos favor the continuation of the Order. The Order shall continue if 
it is favored by a majority of the first handlers and importers voting 
who, during a representative period determined by the Department, have 
been engaged in the handling or importation of mangos. The Department 
will also conduct a referendum if 10 percent or more of all non-exempt, 
first handlers and importers of mangos request the Department to hold a 
referendum. In addition, the Department may hold a referendum at any 
time.


Sec. 1206.72  Suspension and termination.

    (a) The Department shall suspend or terminate this part or subpart 
or a provision thereof if the Department finds that the subpart or a 
provision thereof obstructs or does not tend to effectuate the purposes 
of the Act, or if the Department determines that this subpart or a 
provision thereof is not favored by persons voting in a referendum 
conducted pursuant to the Act.
    (b) The Department shall suspend or terminate this subpart at the 
end of the marketing year whenever the Department determines that its 
suspension or termination is approved or favored by a majority of the 
first handlers and importers voting who, during a representative period 
determined by the Department, have been engaged in the handling or 
importation of mangos.
    (c) If, as a result of a referendum the Department determines that 
this subpart is not approved, the Department shall:
    (1) Not later than 180 days after making the determination, suspend 
or terminate, as the case may be, collection of assessments under this 
subpart; and
    (2) As soon as practical, suspend or terminate, as the case may be, 
activities under this subpart in an orderly manner.


Sec. 1206.73  Proceedings after termination.

    (a) Upon the termination of this subpart, the Board shall recommend 
not more than five of its members to the Department to serve as 
trustees for the purpose of liquidating the affairs of the Board. Such 
persons, upon designation by the Department, shall become trustees of 
all of the funds and property then in the possession or under control 
of the Board, including claims for any funds unpaid or property not 
delivered, or any other claim existing at the time of such termination.
    (b) The said trustees shall:
    (1) Continue in such capacity until discharged by the Department;
    (2) Carry out the obligations of the Board under any contracts or 
agreements entered into pursuant to the Order;
    (3) From time to time, account for all receipts and disbursements 
and deliver all property on hand, together with all books and records 
of the Board and the

[[Page 54920]]

trustees, to such person or persons as the Department may direct; and
    (4) Upon request of the Department, execute such assignments or 
other instruments necessary and appropriate to vest in such persons 
title and right to all funds, property and claims vested in the Board 
or the trustees pursuant to the Order.
    (c) Any person to whom funds, property or claims have been 
transferred or delivered pursuant to the Order shall be subject to the 
same obligations imposed upon the Board and upon the trustees.
    (d) Any residual funds not required to defray the necessary 
expenses of liquidation shall be turned over to the Department to be 
disposed of, to the extent practical, to one or more mango industry 
organizations in the interest of continuing mango promotion, research, 
and information programs.


Sec. 1206.74  Effect of termination or amendment.

    Unless otherwise expressly provided by the Department, the 
termination or amendment of this part or any subpart therof shall not:
    (a) Affect or waive any right, duty, obligation or liability which 
shall have arisen or which may thereafter arise in connection with any 
provision of this part; or
    (b) Release or extinguish any violation of this part; or
    (c) Affect or impair any rights or remedies of the United States, 
or of the Department, or of any other persons with respect to any such 
violation.


Sec. 1206.75  Personal liability.

    No member or employee of the Board shall be held personally 
responsible, either individually or jointly with others, in any way 
whatsoever, to any person for errors in judgment, mistakes, or other 
acts, either of commission or omission, as such member or employee, 
except for acts of dishonesty or willful misconduct.


Sec. 1206.76  Separability.

    If any provision of this subpart is declared invalid or the 
applicability thereof to any person or circumstances is held invalid, 
the validity of the remainder of this subpart or the applicability 
thereof to other persons or circumstances shall not be affected 
thereby.


Sec. 1206.77  Amendments.

    Amendments to this subpart may be proposed from time to time by the 
Board or by any interested person affected by the provisions of the 
Act, including the Department.


Sec. 1206.78  OMB control number.

    The control numbers assigned to the information collection 
requirements of this part by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, 
are OMB control number 0505-0001 and OMB control number 0581-[NEW, to 
be assigned by OMB].

    Dated: August 19, 2002.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-21535 Filed 8-23-02; 8:45 am]
BILLING CODE 3410-02-P