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###### Department of Agriculture

###### Agricultural Marketing Service

          - 7 CFR Part 1206
          - [Docket No.: AMS-FV-07-0042; FV-07-702 FR] 

# AGENCY:

Agricultural Marketing Service, USDA.

# ACTION:

Final rule. 

# SUMMARY:

The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule that modifies the term of office provision of the Mango Promotion, Research, and Information Order (Order) so that the term of office and term limit for the two wholesaler and/or retailer positions of the National Mango Board (Board) be the same as that of other members. Specifically, the amendment modifies the term of office from one year to three years, and modifies the term limit for these positions from a maximum of three consecutive one-year terms to a maximum of two consecutive three-year terms in order to conform to the requirements of the commodity Promotion, Research, and Information Act of 1996 (Act).

# DATES:

*Effective Date:*                         October 26, 2007.                    

# FOR FURTHER INFORMATION CONTACT:

                        Kimberly Coy, Marketing Specialist, Research and Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, USDA, Stop 0244-Room 0634-S, Washington, DC 20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free); or e-mail:                         *kimberly.coy@usda.gov*.                    

# SUPPLEMENTARY INFORMATION:

This rule is issued under the Mango Promotion, Research, and Information Order [7 CFR Part 1206]. The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425].

## Executive Order 12866

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

## Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The rule is not intended to have a retroactive effect and will not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.

The Act provides that any person subject to an order may file a written petition with the Department of Agriculture (Department) if they believe that the order, any provision of the order, or any obligation imposed in connection with the order, is not established in accordance with law. In any petition, the person may request a modification of the order or an exemption from the order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the petitioner resides or conducts business shall have the jurisdiction to review the Department's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

## Regulatory Flexibility Analysis and Paperwork Reduction Act

                    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601*et seq.*], the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities and has prepared this final regulatory impact analysis on a substantial number of small entities. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened.                

The Small Business Administration defines, in 13 CFR Part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms as having receipts of no more than $6.5 million. First handlers, importers, wholesalers, and retailers would be considered agricultural service firms. There are approximately 5 first handlers and 55 importers subject to and assessed under the Order. The majority of these first handlers and importers would be considered small businesses while wholesalers and retailers would not.

First handlers and importers who market or import less than 500,000 pounds of mangos annually are exempt from the Order. Mangos that are exported out of the United States also are exempt from assessment. In addition, domestic producers, foreign producers, wholesalers, and retailers are not subject to or assessed under the Order, but such individuals are eligible to serve on the Board along with importers and first handlers.

The Mango Promotion, Research, and Information Order, which became effective November 4, 2004, is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425]. Pursuant to Section 515(b) of the Act, the Order provides for the establishment of a Board comprised of eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers. The Board is responsible for carrying out promotion, research, and information activities intended to develop, maintain, and increase the demand of mangos in the United States. Appointments to the Board are made by the Secretary of Agriculture from a slate of nominated candidates.

                    Section 515(b)(5) of the Act provides that members and alternates of a board                           ( print page 60542)                        shall serve three-year terms of office and may serve a maximum of two consecutive three-year terms, except members and alternates appointed to the initial Board may serve terms of two, three, or four years. Currently, the Order states that the importer, first handler, domestic producers, and foreign producers each may serve a three-year term of office and may serve a maximum of two consecutive three-year terms, except members appointed to the initial Board serve staggered terms of two, three and four years. However, the Order provides one-year terms of office for wholesaler and/or retailer members, and such members may serve a maximum of three consecutive one-year terms.                

At its February 2007 meeting, the Board reviewed the term of office for the two wholesaler and/or retailer positions. After considerable discussion and review of alternatives, the Board approved a proposal for recommendation to the Department to modify from a one year to a two year the term of office for the wholesaler and/or retailer positions. Upon review of the Board's proposal, the Department determined that the current term of office provision for the two wholesaler and/or retailer positions was not in conformance with the Act. Accordingly, this rule modifies the Order's term of office provision to provide for wholesaler and/or retailer positions terms of three years with a maximum of two consecutive three-year terms. 

The amendment will bring the Order in conformance with the Act. Additionally, the overall impact of the amendment will be favorable for first handlers and importers because the amendment will provide greater Board continuity, align the wholesaler and/or retailer positions terms of office with other Board positions, and reduce the administrative burden of conducting nominations on an annual basis for these positions.

                    In accordance with the Office of Management and Budget (OMB) regulation [5 CFR Part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the information collection requirements under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501*et seq.*], there are no new requirements contained in this rule. The information collection requirements have been previously approved by the Office of Management and Budget (OMB) under OMB control number 0581-0093.                

There are no federal rules that duplicate, overlap, or conflict with this rule.

## Background

The Order became effective November 3, 2004, and is authorized under the Commodity Promotion, Research, and Information Act of 1996 [7 U.S.C. 7411-7425], and is administered by the Board. The Order provides for a 20-member Board consisting of eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers.

                    Under the Order, the Board administers a nationally coordinated program of promotion, research, and information designed to strengthen the position of mangos in the market place and to develop, maintain, and expand the demand for mangos in the United States. The program is financed by an assessment of                     1/2                     cent per pound on first handlers and importers who market or import 500,000 pounds or more of mangos annually. Under the Order, first handlers remit assessments directly to the Board, and assessments paid by importers are collected and remitted by the United States Customs Service.                

Section 515(b)(5) of the Act provides that members and alternates of a board shall serve three-year terms of office and may serve a maximum of two consecutive three-year terms, except members and alternates appointed to the initial board may serve terms of two, three, or four years. Currently, with the exception of the initial Board, the Order provides a three-year term of office for first handler, importer, domestic producer, and foreign producer members, and these members may serve a maximum of two consecutive three-year terms. First handlers, importers, domestic producers, and foreign producers who were appointed to the initial Board were assigned to serve staggered terms of office of two, three, and four years—ending December 31, 2007, 2008, 2009. Members serving an initial term of two or four years are eligible to serve a second term of three years. The terms of office for first handler, importer, domestic producer, and foreign producer positions are consistent with the Act.

For the two wholesaler and/or retailer Board positions, the Order currently provides a one-year term of office and members may serve a maximum of three consecutive one-year terms. Wholesaler and/or retailer members appointed to the initial Board were appointed to serve a term of office of one year with the term ending December 31, 2007. The term of office and the term limit for the wholesaler and/or retailer positions are not in conformance with the Act. Thus, this rule will modify the Order to bring it in conformance with the Act. Also, the amendment will be favorable for first handlers and importer because the amendment will provide greater Board continuity, align the wholesaler and/or retailer positions terms of office with other Board positions, and reduce the administrative burden of conducting nominations on an annual basis for these positions.

Nominations and appointments to the Board are conducted pursuant to § 1206.30 establishment and membership, § 1206.31 nominations and appointments, and § 1206.32 term of office. Appointments to the Board are made by the Secretary of Agriculture from a slate of nominated candidates. Nominations for the importer, first handler, domestic producer, and foreign producer positions are made by the respective industry organizations or individuals. Nominations for the wholesaler and/or retailer positions are made by the Board. Nominations for Board positions for terms ending December 31, 2007, will be based on the amendment contained in this rule. The term of office for such appointments will commence January 1, 2008.

                    An interim final rule concerning this action was published in the                     **Federal Register**                     (71 FR 41425) on July 30, 2007. Copies of the rule were made available through the Internet by USDA and the Office of the                     **Federal Register**                    . That rule provided a 30-day comment period which ended on August 29, 2007. One comment was received by the deadline.                

The commenter opposed the government regulations placed on the American people. However, the comment concerned the marketing of onions.

                    After consideration of all relevant material presented, the Board's recommendation, and other information, it is hereby found that this rule is consistent with and will tend to effectuate the declared policy of the Act. The interim final rule as published in the                     **Federal Register**                     (71 FR 41425) on July 30, 2007, is adopted as a final rule, without change.                

# List of Subjects in 7 CFR Part 1206

      - Administrative practice and procedure
      - Advertising
      - Consumer information
      - Marketing agreements
      - Mango promotion, reporting and recording, requirements

# PART 1206—MANGO PROMOTION, RESEARCH, AND INFORMATION ORDER

                        Accordingly, the interim final rule amending 7 CFR part 1206 which was published at 71 FR 41425 on July 30,                               ( print page 60543)                            2007, is adopted as a final rule without change.                    

Dated: October 18, 2007.

Kenneth C. Clayton,

Acting Administrator, Agricultural Marketing Service.

[FR Doc. 07-5268  Filed 10-24-07; 8:45 am]

BILLING CODE 3410-02-M