[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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