[Federal Register Volume 69, Number 191 (Monday, October 4, 2004)]
[Rules and Regulations]
[Pages 59120-59128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21622]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[Doc. No. FV-02-707-FR]
RIN 0581-AC05


Mango Promotion, Research, and Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes the Mango Promotion, Research, and 
Information Order (Order) under the Commodity Promotion, Research, and 
Information Act of 1996. Under the Order, first handlers and importers 
of 500,000 or more pounds of mangos will pay an initial assessment of 
\1/2\ cent per pound on domestic and imported mangos to the National 
Mango Promotion Board (Board). The Board will be appointed by the 
Secretary of Agriculture (Secretary) to conduct a generic program of 
research and promotion, industry information, and consumer information 
needed for the maintenance, expansion, and development of domestic 
markets for fresh mangos.

DATES: Effective November 3, 2004. Collection and remittance of 
assessments and applicable reporting will begin January 3, 2005.

FOR FURTHER INFORMATION CONTACT: Jeanette A. Palmer, Research and 
Promotion Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, 
SW., Room 2535-S, Washington, DC 20250-0244, telephone (202) 720-9915, 
fax (202) 205-2800, e-mail [email protected].

SUPPLEMENTARY INFORMATION: This 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.
    Prior Documents: Proposed rules on both the Order [67 FR 54908] and 
the referendum procedures [67 FR 54920] were published in the Federal 
Register on August 26, 2002, each with a 60-day comment period. A final 
rule on the referendum procedures [68 FR 58552]

[[Page 59121]]

and a second proposed rule on the Order [68 FR 58556] were published in 
the October 9, 2003, issue of the Federal Register.

Question and Answer Overview

Why Is the Final Rule Being Published?

    In a recent referendum, eligible first handlers and importers of 
fresh mangos voted in favor of implementing the Order. This final rule, 
which will become effective in 30 days, completes the rulemaking 
process.

What Is the Purpose of the Program?

    The purpose of the program is to maintain, expand, and develop 
domestic markets for fresh mangos.

Who Is Covered by This Order?

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

What Is the Assessment Rate?

    The assessment rate is \1/2\ cent per pound on domestic and 
imported mangos.

When Will Assessments Be Due?

    Collection and remittance of assessments and applicable reporting 
will begin 90 days after publication in the Federal Register.

Will I Have To Pay the Assessment Forever?

    Assessments will be due as long as the Order is in effect. However, 
every five years, USDA will conduct a referendum to determine whether 
first handlers and importers of fresh mangos want the program to 
continue. The program will continue if a majority of the voters in the 
referendum vote for approval.

Who Will Administer This Order?

    The National Mango Board will administer this Order under the 
supervision of USDA. The Board members will be appointed by the 
Secretary from nominations received from the mango industry.

Who Will Sit on the Board?

    The Order provides that 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?

    USDA will handle the nomination process for the initial Board. The 
U.S. importers, first handlers, and producers will be nominated by U.S. 
importers, first handlers, and producers, respectively. Foreign 
producers will be nominated by foreign producer associations. After the 
initial Board is seated, the U.S. wholesalers and/or retailers will be 
nominated by the Board. Two names must be submitted for each position. 
From the names submitted, the Secretary will appoint the members.

Executive Order 12866

    This final 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have a retroactive effect. 
Section 524 of the Act provides that the Act shall not 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 have 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 examined the impact of the final rule on small 
entities and prepared a final regulatory flexibility analysis that was 
included in the proposed rule published in the Federal Register on 
October 9, 2003. This analysis indicates that the Agency minimized the 
economic impacts of the Order provisions on small entities to the 
fullest extent reasonably possible while adhering to the program's 
objectives.

Paperwork Reduction Act

    The Order provisions were carefully reviewed, and every effort was 
made to minimize any unnecessary information collection and 
recordkeeping costs or requirements. In accordance with OMB regulations 
[5 CFR part 1320], which implement the Paperwork Reduction Act of 1995 
(44 U.S.C. Chapter 35), the information collection and recordkeeping 
requirements that are imposed by this Order were submitted to OMB for 
review and approved under OMB control numbers 0581-0209 and 0505-0001. 
Upon reevaluation of the response time for the ballot and nomination 
forms, it was determined that the response time could be reduced from 
30 minutes to 15 minutes. Also, the burden for the form AD-755 was 
inadvertently calculated as a part of this collection. Its burden is 
covered under 0505-0001. These two adjustments resulted in an overall 
decrease of 15 burden hours between the proposed rule and the final 
rule.
    Copies of the final regulatory flexibility analysis and the 
discussion of the information collection and recordkeeping requirements 
contained in this rulemaking can be obtained from Jeanette Palmer at 
the address listed above or by e-mail at [email protected].

Background

    On June 29, 2001, the Fresh Produce Association of the Americas 
(Association) submitted a proposal for a national promotion, research, 
and information order for fresh mangos to the Department, pursuant to 
the Act to: (1) develop and finance an effective and coordinated 
program of research, promotion, industry information, and consumer 
information regarding mangos; (2) strengthen the position of the mango 
industry in U.S. markets; and (3) maintain, develop, and expand 
domestic markets for mangos. The Association submitted changes to their 
proposal on November 1, 2001 and the Department published the modified 
proposed rules on both the Order [67 FR 54908] and the referendum 
procedures [67 FR 54920] in the Federal Register on August 26, 2002, 
each with a 60-day comment period. Twenty-two comments from 21 persons 
or organizations were received by the deadline. Nineteen of the 22 
comments were in support of the proposed program while three were 
opposed. These comments and related

[[Page 59122]]

changes to the Order were discussed in the October 9, 2003, issue of 
the Federal Register in the proposed rule on the Order [68 FR 58556] 
and the final rule on the referendum procedures [68 FR 58552].
    First handlers and importers of mangos voted to implement the 
program in a referendum held November 10 through November 28, 2003. 
Under the Order, first handlers and importers of 500,000 or more pounds 
of mangos per calendar year will pay an initial assessment of \1/2\ 
cent per pound on domestic and imported mangos to the National Mango 
Promotion Board (Board). This will generate about $2.5 million to 
administer the program: about 8 percent from domestic production and 92 
percent from imports. (Exports of U.S. mangos are exempt from 
assessments.) The Board will use the funds to pay for the 
aforementioned program development areas as well as administration, 
maintenance, functioning of the Board, and expenses incurred by USDA in 
implementing and administrating the Order, including referendum costs.
    The program will be administered by the Board under USDA 
supervision. The Board will be composed of 20-members; 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 will be added to 
the Board.
    The Order is summarized as follows:
    Sections 1206.1 through 1206.24 of the Order define certain terms, 
such as mango, first handler and importer, which are used in the Order.
    Sections 1206.30 through 1206.37 include provisions relating to the 
establishment, adjustment, and membership; nominations; appointments; 
term of office; vacancies; procedures; compensation; reimbursement; and 
powers, duties, and prohibited activities of the Board. The Board is 
the governing body authorized to administer the 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 are used; specify who pays the assessment and how; 
exemptions; and authorize the imposition of a late-payment charge on 
past-due assessments.
    The initial assessment rate shall be \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 initial continuance referendum which will be conducted after the 
program has been in operation 5 years. The assessment rate may be 
changed without a referendum. 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].
    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; 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 numbers.
    Finally, Sec. Sec.  1206.14 and 1206.42(b) have been slightly 
modified for clarity.

General Findings

    The Department conducted a referendum among eligible first handlers 
and importers of mangos from November 10, 2003 through November 28, 
2003, to determine whether the Order would become effective. First 
handlers and importers who handled or imported 500,000 pounds or more 
of fresh mangos, respectively, from January 1 through December 31, 
2002, were eligible to vote. It is determined that a majority of the 
eligible first handlers and importers voting in the referendum favored 
implementation of the Order. After consideration of all relevant 
materials presented, including the proposal, comments received, and the 
referendum results, it is found that the Order is consistent with and 
effectuates the policy and purpose of the Act.
    The effective date of this action will be 30 days after publication 
in the Federal Register.

List of Subjects in 7 CFR Part 1206

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


0
For the reasons set forth in the preamble, Title 7, Chapter XI of the 
Code of Federal Regulations is amended as follows:

PART 1206--MANGO PROMOTION, RESEARCH, AND INFORMATION

0
1. The authority citation for part 1206 continues to read as follows:

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


0
2. Subpart A is added to part 1206 to read as follows:
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.
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.

[[Page 59123]]

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.

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 Customs and Border Protection of the U.S. 
Department of Homeland Security.


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 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.


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:
    (1) 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 or
    (2) Who is engaged, outside of the United States, in the business 
of producing, or causing to be produced, mangos beyond the person's own 
family use and having value at first point of sale.


Sec.  1206.9  Importer.

    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.


Sec.  1206.10  Information.

    Information means information and programs that are designed to 
develop 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 interstate or intrastate channels of commerce.


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.

    Part means part 1206 which includes the Mango Promotion, Research, 
and Information Order and all rules, regulations, and supplemental 
orders issued pursuant to the Act and the Order.


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 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.

[[Page 59124]]

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 certain date 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.
    (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 organizations of foreign mango producers. 
Each 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 Secretary shall select the members of 
the Board.


Sec.  1206.32  Term of office.

    The term of office for first handler, importer, domestic producer, 
and foreign producer members of the Board will be three years, and 
these members may serve a maximum of two consecutive three-year terms. 
The term of office for wholesaler/retailer members shall be one year, 
and these members may serve a maximum of three consecutive one-year 
terms. When the Board is first established, the first handler, two 
importers, one domestic producer, and two foreign producers will be 
assigned initial terms of four years; three importers, one domestic 
producer, and two foreign producers will be assigned initial terms of 
three years; and three importers and three foreign producers 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 Board member, or if a member of the Board engages in acts 
of

[[Page 59125]]

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 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 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 calendar 
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 calendar 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 is a conflict of interest; and
    (b) Using funds collected by the Board under the Order to undertake 
any action

[[Page 59126]]

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 calendar year, 
and as may be necessary thereafter, the Board shall prepare and submit 
to the Department a budget for the calendar 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 reserve, as the Department finds 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 calendar year an amount that exceeds 15 
percent of the assessments and other income received by the Board for 
that calendar 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 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 calendar 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). The Department will amend 
this section if the assessment rate is modified.
    (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.
    (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 per calendar year may claim an exemption from the assessments 
required under Sec.  1206.42. Mangos produced domestically and exported 
from the United States may annually claim an exemption from the 
assessments required under Sec.  1206.42.

[[Page 59127]]

    (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 
period 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 period 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 calendar year the mangos were actually 
imported.
    (e) Any person who desires an exemption from assessments for a 
subsequent calendar 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, 
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, any regulations 
issued under 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

[[Page 59128]]

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 part, together 
with a statement of the particular provisions of this part 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 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 thereof, 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 0581-0209.

    Dated: September 22, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-21622 Filed 10-1-04; 8:45 am]
BILLING CODE 3410-02-P