[Federal Register Volume 68, Number 196 (Thursday, October 9, 2003)]
[Rules and Regulations]
[Pages 58552-58555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25456]



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Part IV





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1206



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

  Federal Register / Vol. 68, No. 196 / Thursday, October 9, 2003 / 
Rules and Regulations  

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[Doc.  FV-02-708-FR]


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

AGENCY: Agricultural Marketing Service, Agriculture.

ACTION: Final rule.

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SUMMARY: This rule establishes procedures which the Department of 
Agriculture (USDA or the Department) will use in conducting a 
referendum to determine whether the issuance of the proposed Mango 
Promotion, Research, and Information Order (Order) is favored by first 
handlers and importers of mangos. The Order will be implemented if it 
is approved by a majority of the eligible first handlers and importers 
voting in the referendum. These procedures will also be used for any 
subsequent referendum under the Order, if it is approved in the initial 
referendum. The proposed Order is being published separately in this 
issue of the Federal Register. This proposed program would be 
implemented under the Commodity Promotion, Research, and Information 
Act of 1996.

EFFECTIVE DATE: November 10, 2003.

FOR FURTHER INFORMATION CONTACT: Kathie M. Birdsell, RP, FV, AMS, USDA, 
Stop 0244, 1400 Independence Avenue, SW., Room 2535-8, Washington, DC 
20250-0244; telephone 202-720-4835, fax 202-205-2800, or 
[email protected].

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible first handlers and importers of mangos to determine whether 
they favor issuance of the proposed Mango Promotion, Research, and 
Information Order (Order) [7 CFR part 1206]. The program will be 
implemented if it is approved by a majority of the first handlers and 
importers voting in the referendum. The Order is authorized under the 
Commodity Promotion, Research, and Information Act of 1996 (Act) [Pub. 
L. 104-127, 7 U.S.C. 7411-7425]. It would cover domestic and imported 
mangos of the Mangifera indica L. variety from the family of 
Anacardiaceae. A proposed Order is being published separately in this 
issue of the Federal Register.

Executive Order 12866

    This 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 (OMB).

Executive Order 12988

    This rule has been reviewed under E.O. 12988, Civil Justice Reform. 
It is not intended to have retroactive effect.
    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 an 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 action so 
that small businesses will not be disproportionately burdened.
    The Act, which authorizes the Department to consider industry 
proposals for generic programs of promotion, research, and information 
for agricultural commodities, became effective on April 4, 1996. The 
Act provides for alternatives within the terms of a variety of 
provisions.
    Paragraph (e) of Section 518 of the Act provides three options for 
determining industry approval of a new research and promotion program: 
(1) By a majority of those voting; (2) by a majority of the volume of 
the agricultural commodity voted in the referendum; or (3) by a 
majority of those persons voting who also represent a majority of the 
volume of the agricultural commodity voted in the referendum. 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 three years after assessments first begin under an 
order. The Fresh Produce Association of the Americas (Association) has 
recommended that the Department conduct a referendum in which approval 
of an order would be based on a majority of the first handlers and 
importers voting. The Association also has recommended that a 
referendum be conducted prior to the proposed Order going into effect.
    This rule establishes the procedures under which first handlers and 
importers of mangos may vote on whether they want a mango promotion, 
research, and information program to be implemented. This action adds a 
new subpart which establishes procedures to conduct an initial and 
future referenda. The new subpart covers definitions, voting 
instructions, use of subagents, ballots, the referendum report, and 
confidentiality of information.
    There are approximately 5 first handlers and 55 importers of mangos 
who would be subject to the program and eligible to vote in the first 
referendum. The Small Business Administration [13 CFR 121.201] defines 
small agricultural service firms as those having annual receipts of $5 
million or less. First handlers and importers would be considered 
agricultural service firms. Using these criteria, most first handlers 
and importers to be covered by the proposed program would be considered 
small businesses.
    U.S. production of mangos is located in California, Florida, 
Hawaii, and Puerto Rico, 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, Hawaii's 
production was 0.1 million pounds, and Puerto Rico's production as 
approximately 32.9 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.
    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);

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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 1.80 pounds in 2000. Per 
capita consumption has been trending upwards for several decades. In 
1979 per capita consumption was 0.21 pounds, and in 1989 was 0.51 
pounds.
    This rule provides the procedures under which first handlers and 
importers of mangos may vote on whether they want the Order to be 
implemented. In accordance with the provisions of the Act, subsequent 
referenda may be conducted, and it is anticipated that the proposed 
procedures would apply. There are approximately 5 first handlers and 55 
importers who will be eligible to vote in the first referendum. First 
handlers and importers of less than 500,000 pounds of mangos annually 
will be exempt from assessments and not eligible to vote in the 
referendum.
    USDA will keep these individuals informed throughout the program 
implementation and referendum process to ensure that they are aware of 
and are able to participate in the program implementation process. USDA 
will also publicize information regarding the referendum process so 
that trade associations and related industry media can be kept 
informed. Further, the information will be available electronically.
    Voting in the referendum is optional. However, if first handlers 
and importers choose to vote, the burden of voting would be offset by 
the benefits of having the opportunity to vote on whether or not they 
want to be covered by the program.
    The information collection requirements contained in this rule are 
designed to minimize the burden on first handlers and importers. This 
rule provides for a ballot to be used by eligible first handlers and 
importers to vote in the referendum. The estimated annual cost of 
providing the information by an estimated 5 first handlers and for an 
estimated 55 importers would be $5.00 for all first handlers or $1.00 
per first handler and $55.00 for all importers or $1.00 per importer.
    USDA considered requiring eligible voters to vote in person at 
various USDA offices across the country. USDA also considered 
electronic voting, but the use of computers is not universal. 
Conducting the referendum from one central location by mail ballot 
would also be more cost-effective and reliable. USDA will provide easy 
access to information for potential voters through a toll-free 
telephone line and the Internet.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.
    This Final Regulatory Flexibility Analysis has a conforming change 
to the Order's Final Regulatory Flexibility Analysis. This change 
includes production information from Puerto Rico to address a concern 
of one commenter raised in a comment concerning the proposed Order's 
Initial Regulatory Flexibility Analysis. This commenter noted that 
Puerto Rico is covered by the Order as part of the United States, but 
Puerto Rico's production was not included in the economic information 
on the mango industry. Therefore, information on Puerto Rico was added 
to the analysis.

Paperwork Reduction Act

    In accordance with the OMB regulation [5 CFR 1320] which implements 
the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the 
referendum ballot, which represents the information collection and 
recordkeeping requirements that will be imposed by this rule, has been 
approved by OMB.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0581-0209.
    Expiration Date of Approval: February 28, 2006.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act. The burden associated 
with the ballot is as follows:
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per response for each 
first handler and importer.
    Respondents: First handlers and importers.
    Estimated Number of Respondents: 60.
    Estimated Number of Responses per Respondent: 1 every 5 years 
(0.2).
    Estimated Total Annual Burden on Respondents: 6.0 hours.
    The estimated annual cost of providing the information by an 
estimated 5 first handlers would be $5.00 or $1.00 per first handler 
and for an estimated 55 importers would be $55.00 or $1.00 per 
importer.

Background

    The Act, which became effective on April 4, 1996, authorizes the 
Department to establish a national research and promotion program 
covering domestic and imported mangos. The Association submitted an 
entire proposed Order on June 29, 2001, and revisions to the proposal 
on November 1, 2001. The proposal was published in the Federal Register 
on August 26, 2002 [67 FR 54908]. A slightly revised proposal that will 
be voted upon in the referendum is published in this issue of the 
Federal Register.
    The proposed Order would provide for the development and financing 
of an effective and coordinated program of promotion, research, and 
consumer and industry information for mangos in the United States. The 
program would be funded by an assessment levied on first handlers and 
importers (to be collected by the Customs and Border Protection at time 
of entry into the United States) at an initial rate of \1/2\ cent per 
pound. First handlers and importers of less than 500,000 pounds of 
mangos annually would be exempt from paying assessments. In addition, 
exports of U.S. mangos would be exempt from assessments.
    The assessments would be used to pay for promotion, research, and 
consumer and industry information; administration, maintenance, and 
functioning of the National Mango Promotion Board; and expenses 
incurred by the Department in implementing and administering the Order, 
including referendum costs.
    Section 1206 of the Act requires that a referendum be conducted 
among eligible first handlers and importers of mangos to determine 
whether they favor implementation of the Order.
    That section also requires the Order to be approved by a majority 
of the first handlers and importers voting.
    This final rule establishes the procedures under which first 
handlers and importers of mangos may vote on whether they want the 
mango promotion, research, and information program to be implemented. 
There are approximately 60 eligible voters.
    This action adds a new subpart establishing procedures to be used 
in this and future referenda. This subpart covers definitions, voting, 
instructions, use of subagents, ballots, the referendum report, and 
confidentiality of information.

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    Proposed referendum procedures were published in the Federal 
Register on August 26, 2002, [67 FR 54920], with a sixty-day comment 
period ending on October 25, 2002.
    One comment was received from a producer. In addition to noting 
that the Regulatory Flexibility Analysis did not contain production 
information from Puerto Rico, the commenter argued that since the Order 
would be implemented if it is approved by a majority of eligible first 
handlers and importers voting in the referendum, this would be 
assessment without representation for growers. The commenter expressed 
the view that growers would pay for program assessments in the form of 
lower returns, without any direct benefit. We disagree. Domestic 
producers are not responsible for paying assessments under the proposed 
program. Although it is possible that an assessment may be passed back 
to producers in some form, only importers and first handlers of 500,000 
or more pounds of mangos per calendar year would be responsible for 
paying assessments and eligible to vote in a referendum. Domestic 
producers, however, would be represented on the board, with two of the 
18 voting positions.
    The definitions of eligible first handler and eligible importer are 
modified in this final rule. The definitions of first handlers and 
importer have been modified in the proposed order rulemaking published 
separately in this issue of the Federal Register. In that action, the 
definition of first handler was revised based upon a comment received 
and was further clarified by the Department. As a result, an 
appropriate conforming change was made to the definition of importer in 
that rulemaking action. This final rule revises the definition of 
eligible first handler and eligible importer to conform to and reflect 
the changes that appear in the order definitions.

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, Title 7, Chapter XI of 
the Code of Federal Regulations is amended as follows:
    1. Part 1206 is added to read as follows:

PART 1206--MANGO PROMOTION, RESEARCH, AND INFORMATION

Subpart A [Reserved]
Subpart B--Referendum Procedures.
Sec.
1206.100 General.
1206.101 Definitions.
1206.102 Voting.
1206.103 Instructions.
1206.104 Subagents.
1206.105 Ballots.
1206.106 Referendum report.
1206.107 Confidential information.
1206.108 OMB control number.

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

Subpart A [Reserved]

Subpart B--Referendum Procedures.


Sec.  1206.100  General.

    Referenda to determine whether eligible first handlers and 
importers of mangos favor the issuance, amendment, suspension, or 
termination of the Mango Promotion, Research, and Information Order 
shall be conducted in accordance with this subpart.


Sec.  1206.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to redelegate, or any officer or employee 
of the U.S. Department of Agriculture to whom authority has been 
delegated or may hereafter be delegated to act in the Administrator's 
stead.
    (b) 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.
    (c) Eligible first handler means any person, (excluding a common or 
contract carrier), receiving 500,000 or more pounds of mangos from 
producers in a calendar year and who as owner, agent, or otherwise 
ships or causes mangos to be shipped as specified in this 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. The term first handler 
includes a producer who handles or markets mangos of the producer's own 
production.
    (d) Eligible importer means any person importing 500,000 or more 
pounds of mangos into the United States in a calendar year 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 that are identified in the Harmonized Tariff Schedule of the 
United States by the numbers 0804.50.4040 and 0804.50.6040, during the 
representative period. Importation occurs when mangos originating 
outside of the United States are released from custody by the Customs 
and Border Protection and introduced into the stream of commerce in the 
United States. Included are persons who hold title to foreign-produced 
mangos immediately upon release by the Customs and Border Protection, 
as well as any persons who act on behalf of others, as agents or 
brokers, to secure the release of mangos from the Customs and Border 
Protection when such mangos are entered or withdrawn for consumption in 
the United States.
    (e) Mangos means all fresh fruit of Mangifera indica L. of the 
family Anacardiaceae.
    (f) Order means the Mango Promotion, Research, and Information 
Order.
    (g) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term ``partnership'' includes, but 
is not limited to:
    (1) A husband and a wife who have title to, or leasehold interest 
in, a mango farm as tenants in common, joint tenants, tenants by the 
entirety, or, under community property laws, as community property; and
    (2) So-called ``joint ventures'' wherein one or more parties to an 
agreement, informal or otherwise, contributed land and others 
contributed capital, labor, management, or other services, or any 
variation of such contributions by two or more parties.
    (h) Referendum agent or agent means the individual or individuals 
designated by the Department to conduct the referendum.
    (i) Representative period means the period designated by the 
Department.
    (j) 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.  1206.102  Voting.

    (a) Each eligible first handler and eligible importer of mangos 
shall be entitled to cast only one ballot in the referendum.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate first handler or importer, or an administrator, 
executor, or trustee or an eligible entity may cast a ballot on behalf 
of such entity. Any individual so voting in a referendum shall certify 
that

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such individual is an officer or employee of the eligible entity, or an 
administrator, executive, or trustee of an eligible entity and that 
such individual has the authority to take such action. Upon request of 
the referendum agent, the individual shall submit adequate evidence of 
such authority.
    (c) All ballots are to be cast by mail, as instructed by the 
Department.


Sec.  1206.103  Instructions.

    The referendum agent shall conduct the referendum, in the manner 
provided in this subpart, under the supervision of the Administrator. 
The Administrator may prescribe additional instructions, not 
inconsistent with the provisions of this subpart, to govern the 
procedure to be followed by the referendum agent. Such agent shall:
    (a) Determine the period during which ballots may be cast.
    (b) Provide ballots and related material to be used in the 
referendum. The ballot shall provide for recording essential 
information, including that needed for ascertaining whether the person 
voting, or on whose behalf the vote is cast, is an eligible voter.
    (c) Give reasonable public notice of the referendum:
    (1) By utilizing available media or public information sources, 
without incurring advertising expense, to publicize the dates, places, 
method of voting, eligibility requirements, and other pertinent 
information. Such sources of publicity may include, but are not limited 
to, print and radio; and
    (2) By such other means as the agent may deem advisable.
    (d) Mail to eligible first handlers and importers whose names and 
addresses are known to the referendum agent, the instructions on 
voting, a ballot, and a summary of the terms and conditions of the 
proposed Order. No person who claims to be eligible to vote shall be 
refused a ballot.
    (e) At the end of the voting period, collect, open, number, and 
review the ballots and tabulate the results in the presence of an agent 
of a third party authorized to monitor the referendum process.
    (f) Prepare a report on the referendum.
    (g) Announce the results to the public.


Sec.  1206.104  Subagents.

    The referendum agent may appoint any individual or individuals 
necessary or desirable to assist the agent in performing such agent's 
functions of this subpart. Each individual so appointed may be 
authorized by the agent to perform any or all of the functions which, 
in the absence or such appointment, shall be performed by the agent.


Sec.  1206.105  Ballots.

    The referendum agent and subagents shall accept all ballots cast. 
However, if an agent or subagent deems that a ballot should be 
challenged for any reason, the agent or subagent shall endorse above 
their signature, on the ballot, a statement to the effect that such 
ballot was challenged, by whom challenged, the reasons therefore, the 
results of any investigations made with respect thereto, and the 
disposition thereof. Ballots invalid under this subpart shall not be 
counted.


Sec.  1206.106  Referendum report.

    Except as otherwise directed, the referendum agent shall prepare 
and submit to the Administrator a report on the results of the 
referendum, the manner in which it was conducted, the extent and kind 
of public notice given, and other information pertinent to the analysis 
of the referendum and its results.


Sec.  1206.107  Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the vote of any person covered under the Order and the voter 
list shall be strictly confidential and shall not be disclosed.


Sec.  1206.108  OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 
is OMB control number 0581-0209.

    Dated: October 2, 2003.
A.J. Yates,
Administrator.
[FR Doc. 03-25456 Filed 10-8-03; 8:45 am]
BILLING CODE 3410-02-U