[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36281-36283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15630]



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  Federal Register / Vol. 76, No. 120 / Wednesday, June 22, 2011 / 
Rules and Regulations  

[[Page 36281]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[Doc. No. AMS-FV-10-0092]


Mango Promotion, Research, and Information Order; Reapportionment

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule reduces the number of National Mango Board (Board) 
members from 20 to 18 to reflect the elimination of two non-voting 
wholesaler/retailer positions. In accordance with the Mango Promotion, 
Research, and Information Order (Order), which is authorized under the 
Commodity Promotion, Research, and Information Act of 1996 (Act), a 
review of the composition of the Board must be conducted every five 
years. The Board reviewed the production volumes and geographical 
distribution of domestic and imported mangos, and submitted this 
information to the U.S. Department of Agriculture with a recommendation 
that no changes be made to the number of importer, first handler, or 
producer seats on the Board. However, the Board recommended elimination 
of two non-voting wholesaler/retailer positions that have not been 
filled since 2007.

DATES: Effective Date: June 23, 2011.

FOR FURTHER INFORMATION CONTACT: Veronica Douglass, Marketing 
Specialist, Research and Promotion Branch, Fruit and Vegetable 
Programs, AMS, U.S. Department of Agriculture, Stop 0244, Room 0632-S, 
1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone: 
888-720-9917; fax: 202-205-2800; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under the Mango 
Promotion, Research, and Consumer Information Order (Order) [7 CFR part 
1206]. The Order is authorized by 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 (OMB) 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. It is not intended to have a retroactive effect.
    Section 524 of the Act provides that the Act shall not affect or 
preempt any other State or Federal law authorizing promotion or 
research relating to an agricultural commodity.
    Under the Act, a person subject to an order may file a petition 
with the U.S. Department of Agriculture (Department) 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, the 
Department 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 the jurisdiction to 
review a final ruling on the petition, if the petitioner files a 
complaint for that purpose not later than 20 days after the date of the 
entry of the Department's final ruling.

Regulatory Flexibility Analysis and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this rule on small entities that would be affected 
by this rule. The purpose of the RFA is to fit regulatory action to 
scale on businesses subject to such action, so that small businesses 
will not be disproportionately burdened.
    The Small Business Administration defines small agricultural 
producers as those having annual receipts of no more than $750,000, and 
small agricultural service firms as those having annual receipts of no 
more than $7 million (13 CFR part 121). First handlers, importers, 
wholesalers, and retailers would be considered agricultural service 
firms. Currently, fewer than five first handlers and 193 importers are 
subject to assessment under the Order. The majority of producers would 
be considered small businesses. 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 assessment. Mangos that 
are exported out of the United States are also exempt from assessment. 
In addition, domestic producers, foreign producers, wholesalers, and 
retailers are not subject to assessment under the Order, but such 
individuals are eligible to serve on the Board along with importers and 
first handlers.
    Section 1206.30(c) of the Order requires that the Board review the 
volume and geographical distribution of mango production and imports at 
least once every five years. If warranted, the Board will recommend to 
the Department that membership on the Board be altered to reflect any 
changes in the volume and geographical distribution of mango production 
and imports.
    The Order currently provides for a Board of 20 members including 
eight importers, one first handler, two domestic producers, seven 
foreign producers, and two non-voting wholesalers and/or retailers. At 
its November 16, 2010 meeting, the Board reviewed the volume and 
geographic distribution of mango production and imports from 2006 
through 2009. Based on data from U.S. Customs and Border Patrol, the 
volume of mango imports to the U.S. declined from 666,772,761 pounds in 
2006 to 627,271,605 pounds in 2009. The Board's eight importer seats 
are allocated based on the volume of mangos imported into each of the 
four Districts defined in the Order. The

[[Page 36282]]

current allocation is two seats for District I, three seats for 
District II, two seats for District III, and one seat for District IV. 
The percentage of the total mango import volume imported into District 
I remained at 25 percent from 2006 to 2009. Imports into District II 
grew from 35 percent of the total in 2006 to 41 percent in 2009. 
Imports into District III fell from 28 percent of the total in 2006 to 
23 percent in 2009. Imports into District IV fell from 12 percent of 
the total in 2006 to 11 percent in 2009. Much of the domestic mango 
production was adversely affected by hurricanes during the early 2000s. 
Accordingly, data provided by the Board shows that in 2006, no 
assessments were collected on domestic mangos, while in 2009 
assessments were collected on 1,539,306 pounds of domestic mangos. 
After reviewing the data regarding mango imports and domestic 
production, the Board voted to recommend that no changes be made at 
this time to the number of importer, first handler, domestic producer, 
or foreign producer seats; or to the allocation of importer seats among 
the four districts.
    At the same meeting, the Board voted to request elimination of the 
wholesaler/retailer positions from the Order. These positions were 
included so that the Board would include members with direct customer 
sales experience. The Board has made numerous attempts to nominate 
individuals to those positions; however, wholesalers and retailers are 
not interested in or do not have the time to serve on the Board. As a 
result, the two wholesaler/retailer positions have been vacant since 
2008. These two positions do not represent assessment payers. If the 
wholesaler/retailer positions are eliminated, the Board would consist 
of a total of 18 members including eight importers, one first handler, 
two domestic producers, and seven foreign producers.
    Nominations and appointments to the Board are conducted pursuant to 
sections 1206.31 and 1206.33 of the Order. Appointments to the Board 
are made by the Secretary from a slate of nominated candidates. 
Pursuant to section 1206.31 of the Order, candidates for the importer, 
first handler, and domestic producer positions are nominated by their 
peers. Nominations for the foreign producer positions are solicited 
from foreign mango producer organizations. The Board nominates the 
wholesaler/retailer members. The Order requires that two nominees be 
submitted for each vacant position.
    In accordance with OMB regulation [5 CFR part 1320], which 
implements information collection requirements imposed by the Paperwork 
Reduction Act of 1995 [44 U.S.C. 3501 et seq.], there are no new 
requirements contained in this rule. In fact, a decrease of 0.33 hours 
per year in the information collection burden for the mango program is 
expected. The information collection requirements have been previously 
approved by OMB under OMB control number 0581-0093.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.

Background

    The Order, which became effective November 3, 2004, is authorized 
under the Act and 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 marketplace 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 U.S. Customs and Border Patrol.
    Pursuant to section 1206.30(c) of the Order, at least once in each 
five-year period, the Board shall review the volume and geographical 
distribution of mango production and imports and, if warranted, make a 
recommendation to the Secretary to alter the Board's membership. On 
November 16, 2010, at its fall meeting, the Board voted to recommend 
that no changes be made to the importer, first handler, domestic 
producer, or foreign producer positions, but that the non-voting 
wholesaler/retailer positions be eliminated. If the wholesaler/retailer 
positions are eliminated, the Board's membership will be reduced from 
20 to 18.
    Accordingly, this action will amend the Order by removing the 
definition of retailer in section 1206.19, the definition of wholesaler 
in section 1206.24, and references to wholesalers and/or retailers in 
sections 1206.31 and 1206.32.
    A proposed rule concerning this action was published in the Federal 
Register on March 14, 2011 [76 FR 13530]. Copies of the proposed rule 
were made available on the Internet by the Department and the Office of 
the Federal Register. In addition, AMS published a press release 
announcing the comment period. The proposed rule provided a 30-day 
comment period, which ended April 13, 2011. Twelve comments were 
received by the deadline.

Summary of Comments

    In response to the proposed rule, USDA received 12 comments 
regarding the proposed amendment of the Order to eliminate two non-
voting wholesaler/retailer positions on the Board. Of the 12 comments 
received, nine supported the proposed amendment and three did not 
support the proposed amendment.
    A total of eight comments in support of the proposed amendment 
discussed the Board's reasons for requesting elimination of the 
wholesaler/retailer positions. Seven of the comments cited the 
potential for conflict of interest created by participation of 
wholesalers and/or retailers in Board meetings where decisions could be 
influenced by their business interests with individual Board members.
    Five comments in favor of the proposed amendment mentioned the 
Board's retention of retail account managers who gather input from the 
retail sector and help the Board to develop appropriate programs. These 
commenters stated that having a dedicated team of retail account 
managers is an effective means of communicating with wholesalers and 
retailers.
    Five comments expressed support for the elimination of the 
wholesaler/retailer positions on the basis that input from wholesalers 
and/or retailers can be obtained as needed through their ad hoc 
participation on the Board's committees. The Board's bylaws permit the 
Board's chairman to appoint committees that may include persons other 
than Board members. Subject to Board approval, committee chairmen are 
also permitted to appoint committee members who are not Board members.
    Four commenters supported elimination of the wholesaler/retailer 
positions, stating that past wholesaler/retailer members struggled with 
the time and travel demands of Board membership and rarely attended 
Board meetings.
    Three comments in favor of the proposed amendment stated that the 
funds used to service the wholesaler/retailer positions would be better 
spent on the Board's promotional programs.
    One commenter agreed with the proposed rule without providing 
additional explanation.
    Two commenters expressed opposition to the notion that

[[Page 36283]]

representation on the Board is linked to the payment of assessments. 
The Order requires a review of the composition of the Board to be 
conducted every five years and states that the review is to be based on 
Board assessment records and statistics from USDA. The number of 
importer, first handler, and domestic producer seats, as well as the 
distribution of importer seats, is adjusted as needed based on the 
volume and geographic distribution of mango production and imports. In 
addition, the volume of imports for each country of origin is 
considered in appointments of foreign producer members. Because the 
volume handled or imported is linked to the value of assessments 
received by the Board, representation of importers, first handlers, 
domestic producers and foreign producers is necessarily linked to the 
payment of assessments. However, that is not the case for the 
wholesaler/retailer positions.
    Two commenters expressed opposition to the proposed elimination of 
the wholesaler/retailer positions on the grounds that wholesalers and/
or retailers could provide valuable insight to the Board. As stated 
above, the Board's bylaws permit the participation of non-members on 
the Board's committees. Thus the Board is able to seek input from 
wholesalers and/or retailers as needed.
    One commenter expressed doubt that the Board has made sufficient 
efforts to secure nominees to fill the wholesaler/retailer positions. 
As discussed in the proposed rule, the Board has made numerous attempts 
to nominate individuals to those positions; however, wholesalers and 
retailers are either not interested in or do not have the time to serve 
on the Board.
    One commenter recommended that wholesalers and/or retailers be 
given full voting rights on the Board. The question of whether or not 
wholesaler/retailer members should be permitted to vote is not 
considered in this rule as it is not relevant given the Board's 
inability to find wholesalers and/or retailers to serve on the Board. 
The same commenter also suggested that the Board consider adding 
consumer members. Currently, all Board meetings are open to the public, 
and any person has the opportunity to contact the Board at any time. As 
such, consumer participation in Board activities does not require 
amendment of the Order.
    One comment objecting to the regulation of mangos was outside the 
scope of this rule.
    The Department has considered all of the comments and is not making 
any changes to the proposed rule.
    After consideration of all relevant material presented, the Board's 
recommendation, public comments and other information, it is hereby 
found that this rule, as published in the Federal Register [76 FR 
13530] on March 14, 2011, is consistent with and will effectuate the 
purpose of the Act.

List of Subjects in 7 CFR Part 1206

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

    For the reasons set forth in the preamble, 7 CFR part 1206 is 
amended as follows:

PART 1206--MANGO PROMOTION, RESEARCH, AND INFORMATION ORDER

0
1. The authority citation for 7 CFR part 1206 continues to read as 
follows:

    Authority: 7 U.S.C. 7411-7425 and 7 U.S.C. 7401.


0
2. Remove and reserve Sec.  1206.19.


Sec.  1206.19  [Reserved]

0
3. Remove and reserve Sec.  1206.24.


Sec.  1206.24  [Reserved]

0
4. Amend Sec.  1206.30 by revising paragraph (a) to read as follows:


Sec.  1206.30  Establishment of the National Mango Promotion Board.

    (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, and seven foreign 
producers. The chairperson shall reside in the United States and the 
Board office shall also be located in the United States.
* * * * *

0
5. Amend Sec.  1206.31 by removing paragraph (h), and redesignating 
paragraph (i) as paragraph (h).

0
6. Revise Sec.  1206.32 to read as follows:


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. 
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.

    Dated: June 16, 2011.
Rayne Pegg,
Administrator.
[FR Doc. 2011-15630 Filed 6-21-11; 8:45 am]
BILLING CODE 3410-02-P