[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Proposed Rules]
[Pages 8441-8444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02615]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[Document No. AMS-FV-12-0041]


Mango Promotion, Research, and Information Order; Nominations of 
Foreign Producers and Election of Officers

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule would allow foreign producers, from major countries 
exporting mangos to the United States, who are not members of a foreign 
producer organization to submit names to the Secretary for appointment 
to the National Mango Board (Board). At this time, only foreign 
producer associations from major countries exporting mangos to the 
United States can submit names to the Secretary for consideration. In 
addition, this proposal seeks to provide flexibility to the timing of 
election of officers to the Board. The changes were proposed by the 
Board, which administers the program, in accordance to the provisions 
of the Mango Promotion, Research, and Information Order (Order) which 
is authorized under the Commodity Promotion, Research, and Information 
Act of 1996 (Act).

DATES: Comments must be received by February 26, 2013.

ADDRESSES: Comments may be submitted electronically at http://www.regulations.gov. Comments may also be sent to the Promotion and 
Economics Division, Fruit and Vegetable Program, Agricultural Marketing 
Service (AMS), U.S. Department of Agriculture, Room 1406-S, Stop 0244, 
1400 Independence Avenue SW., Washington, DC 20250-0244; fax (202) 205-
2800. All comments submitted should reference the document number and 
title of this proposed rule, and will be included in the record and 
made available for public inspection. Comments may be viewed on the 
internet at http://www.regulations.gov, or at the above office. Please 
be advised that the identity of individuals or entities submitting 
comments will be made public on the internet at the above Web site.

FOR FURTHER INFORMATION CONTACT: Jeanette Palmer, Marketing Specialist, 
Promotion and Economics Division, Fruit and Vegetable Program, AMS, 
USDA, 1400 Independence Avenue

[[Page 8442]]

SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; telephone: 
(888) 720-9917; fax: (202) 205-2800; email: 
[email protected].

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

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated as ``non-significant 
regulatory action'' under section 3(f) of Executive Order 12866. 
Accordingly, the Office of Management and Budget (OMB) has waived the 
review process.

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 action on the 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 and importers 
would be considered agricultural service firms, and the majority of 
mango producers, first handlers and importers would be considered small 
businesses. Although this criterion does not factor in additional 
monies that may be received by producers, handlers and importers of 
mangos, it is an inclusive standard for identifying small entities.
    Mango producers are not subject to the assessment. 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. Furthermore, 
while domestic and foreign producers are not subject to assessment 
under the Order, such individuals are eligible to serve on the Board 
along with importers and first handlers. Currently, approximately three 
first handlers and 193 importers are subject to assessment under the 
Order.
    U.S. production of mangos is located in California, Florida, 
Hawaii, Texas, and Puerto Rico according to the most recent U.S. Census 
of Agriculture (Agricultural Census) which was conducted in 2007. The 
Agricultural Census does not include California production because 
California has so few producers that publishing production data would 
reveal confidential information. According to the 2007 Agricultural 
Census published by the Department's National Agricultural Statistics 
Service, the U.S. had a total of 2,259 acres of mangos in 2007, which 
is the most recent data available. Out of the total acreage, 1,212 
acres (54 percent) were in Florida, and the remaining 1,047 acres (46 
percent) were in Hawaii, California, and Texas. The Agricultural Census 
does not collect mango production data for Puerto Rico. Individual 
acreage for Hawaii, California and Texas are not available. U.S. mango 
acreage rose by 321 acres between 2002 and 2007. Florida saw a decrease 
of 161 acres between 2002 and 2007 census, but acres in other States 
rose by 482 acres. Census data is published every five years.
    Seven countries account for 99 percent of the mangos imported into 
the United Sates. These countries and their share of the imports (from 
April 1, 2011, through March 31, 2012) are: Mexico (68 percent); 
Ecuador (9 percent); Brazil (7 percent); Peru (7 percent); Guatemala (4 
percent); Haiti (3 percent); and Nicaragua (1 percent). For the period 
from April 1, 2011, through March 31, 2012, the United States imported 
a total of 353,629 tons of mangos, valued at $280 million.
    The Board is composed of 18 members, including eight importers; two 
domestic producers; one first handler; and seven foreign producers. 
Nominations and appointments to the Board are conducted pursuant to 
section 1206.31 of the Order. Nominations for the importer, domestic 
producer, and first handler seats are made by U.S. importers, domestic 
producers, and first handlers, respectively. Foreign producers are 
nominated by foreign producer associations. The Board wants to increase 
the pool of nominees from the major countries that export mangos to the 
United States by allowing foreign producers who are in areas without a 
producer organization to nominate foreign producers to the Board.
    Section 515(b)(2)(C) of the Act states the Secretary may make 
appointments from nominations made pursuant to the method set forth in 
the order. The Board wants to receive representation from all mango 
growing regions within the major mango exporting countries to the 
United States. Section 1206.31(g) of the Order limits the nominations 
for the foreign producer seats to the foreign mango organizations. At a 
meeting on September 11, 2009, the Board voted (9 out of 14 in favor) 
to allow foreign producers from the major countries exporting mangos to 
the United States to provide nominees directly to the Secretary. At a 
recent Board meeting, the Board decided to request this change. The 
proposed change does not limit the foreign producer organizations 
ability to submit nominations. It will increase the slate of candidates 
from which the Secretary may choose to appoint to the Board. It also 
provides an

[[Page 8443]]

opportunity to increase diversity on the Board.
    In addition, on July 11, 2012, the Board voted unanimously to amend 
the Order to provide the Board flexibility in the election of officers. 
Currently, section 1206.34 (b) of the Order requires the Board to 
select a chairperson and a vice chairperson at the start of its fiscal 
period. The Board must schedule Board meetings around several domestic 
and international growing regions in the mango industry. This challenge 
has caused the Board to hold its first meeting of the year three months 
into the fiscal year. The language in the Order would leave the Board 
without a chairperson for several months. The Board had considered 
changing its fiscal year, but it was rejected by Board members because 
the Board's fiscal year flows with the mango production cycle which is 
a calendar year.
    Section 515(c)(3) of the Act allows the Board to meet, organize, 
and select among its members its officers as the Board determines 
appropriately. In practice, the Board has learned that waiting three 
months into its fiscal year to elect officers is impractical. The Board 
believes that electing its officers at the last meeting of the fiscal 
year is more advantageous. Therefore, the Board proposes to update the 
Order to reflect the particular needs of the mango industry and to 
provide for a more efficient management method.
    This rule does not impose additional recordkeeping requirements on 
first handlers, importers, or producers of mangos. There are no Federal 
rules that duplicate, overlap, or conflict with this rule.
    In accordance with the Office of Management and Budget (OMB) 
regulation (5 CFR part 1320) that implements the Paperwork Reduction 
Act of 1995 (44 U.S.C. Chapter 35), the information collection and 
recordkeeping requirements that are imposed by the Order have been 
approved previously under OMB control number 0581-0093. This rule does 
not result in a change to the information collection and recordkeeping 
requirements previously approved.
    We have performed this initial Regulatory Flexibility Analysis 
regarding the impact of this proposed amendment to the Order on small 
entities and we invite comments concerning potential effects of this 
amendment on small businesses.

Background

    The Order became effective on November 3, 2004, and it is 
authorized under the Act. The Board is composed of 18 members, 
including eight importers; two domestic producers; one first handler; 
and seven foreign producers. Nominations for the importer, domestic 
producer, and first handler seats are made by U.S. importers, domestic 
producers, and first handlers, respectively. Foreign producers are 
nominated by foreign producer associations.
    Under the Order, the Board administers a nationally coordinated 
program of research and promotion designed to strengthen the position 
of mangos in the marketplace and to establish, maintain, and expand 
U.S. markets for mangos. The program is financed by an assessment of 
three quarters of a cent per pound on first handlers and importers of 
500,000 pounds or more of mangos annually. The Order specifies that 
first handlers are responsible for submitting assessments to the Board 
on a monthly basis and maintaining records necessary to verify their 
reporting. Importers are responsible for paying assessments on mangos 
imported for marketing in the United States through the U.S. Customs 
and Border Protection Service of the U.S. Department of Homeland 
Security.
    The Board wants to increase the pool of nominees from the major 
countries that export mangos to the United States by allowing foreign 
producers who are in areas without a producer organization to nominate 
foreign producers to the Board. The Board wants to receive 
representation from all mango growing regions within the major 
countries that export mangos to the United States. Section 1206.31(g) 
of the Order limits the nominations for the foreign producer seats to 
the foreign mango organizations. At a meeting on September 11, 2009, 
the Board voted to allow foreign producers from the major countries 
exporting mangos to the United States to provide nominees directly to 
the Secretary. At a recent meeting, the Board decided to request this 
change. The propose change does not limit the foreign producer 
organizations ability to submit nominations. It will increase the slate 
of candidates from which the Secretary may choose to appoint members to 
the Board.
    This propose change is consistent with section 515(b)(2)(C) of the 
Act which states the Secretary may make appointments from nominations 
made pursuant to the method set forth in the Order. The Board wants to 
expand its slate of candidates for the Secretary's decision for 
appointment to the Board. Accordingly, section 1206.31(g) of the Order 
would be revised to allow foreign producers who are not members of a 
producer organization to nominate foreign producers to the Secretary 
for consideration for appointment to the Board.
    In addition, on July 11, 2012, the Board voted unanimously to amend 
the Order to provide the Board flexibility in the election of officers. 
Currently, section 1206.34(b) of the Order requires the Board to select 
a chairperson and a vice chairperson at the start of its fiscal period. 
The Board must schedule Board meetings around several domestic and 
international growing regions in the mango industry. This challenge has 
caused the Board to hold its first meeting of the year three months 
into the fiscal year. The current procedure in the Order would leave 
the Board without a chairperson for several months. The Board had 
considered changing its fiscal year, but it was rejected because the 
Board's fiscal year flows with the mango production cycle which is a 
calendar year.
    In practice, the Board has learned that waiting three months into 
its fiscal year to elect officers is impractical. The Board believes 
that electing its officers at the last meeting of the fiscal year is 
more advantageous. Therefore, the Board proposes to update the Order to 
reflect the particular needs of the mango industry and to provide for a 
more efficient management method. This proposed change is consistent 
with section 515(c)(3) of the Act which permits the Board to meet, 
organize, and select among its members its officers as the Board 
determines appropriately. This rule would amend section 1206.34(b) of 
the Order to provide the Board flexibility in the timing to elect its 
officers.
    A 20-day comment period is provided to allow interested persons to 
respond to this proposal. Twenty days is deemed appropriate so that the 
proposed amendments, if adopted, may be implemented for the next 
nomination process which begins early Spring 2013 and to reflect the 
current practices of the election of officers. If this process is not 
in effect by Spring of 2013, then the foreign producers without an 
organization would not be able to have representation on the Board 
until the year 2015. In addition, this nomination revision was 
disseminated to the mango industry which supports this change. All 
written comments received in response to this rule by the date 
specified would be considered prior to finalizing this action.
    Pursuant to 5 U.S.C. 553, it is also found that good cause exists 
for not postponing the effective date of this action until twenty days 
after publication in the Federal Register

[[Page 8444]]

because a final rule needs to be in effect before the Board makes a 
call for nominations for the term of office beginning January 1, 2014.

List of Subjects in 7 CFR Part 1206

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Mango promotion, Reporting and 
recording requirements.
    For the reasons set forth in the preamble, 7 CFR part 1206 is 
proposed to be 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 7401.
0
2. In Sec.  1206.31, paragraph (g) is revised to read as follows:


Sec.  1206.31  Nominations and appointments.

* * * * *
    (g) Nominees to fill the foreign producer member positions on the 
Board shall be solicited from organizations of foreign mango producers 
and from foreign mango producers. Organizations of foreign mango 
producers shall submit two nominees for each position, and foreign 
mango producers may submit their name or the names of other foreign 
mango producers directly to the Board. The nominees shall be 
representative of the major countries exporting mangos to the United 
States.
* * * * *
0
3. In Sec.  1206.34, paragraph (b) is revised to read as follows:


Sec.  1206.34  Procedure.

* * * * *
    (b) The Board shall select officers from its membership, including 
a chairperson and vice chairperson, whose terms shall be one year. The 
chairperson and vice-chairperson will conduct meetings throughout the 
period.
* * * * *

    Dated: February 1, 2013.
David R. Shipman,
Administrator.
[FR Doc. 2013-02615 Filed 2-5-13; 8:45 am]
BILLING CODE 3410-02-P