[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Rules and Regulations]
[Pages 39564-39567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15747]


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

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: Final rule.

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

SUMMARY: This document amends the Mango Promotion, Research, and 
Information Order (Order) to allow foreign producers, from countries 
exporting mangos to the United States, to nominate themselves or other 
foreign producers for appointment to the National Mango Board (Board). 
This change would increase the pool of foreign producer nominees. Upon 
further review, the proposed change to add flexibility to the timing of 
election of officers to the Board is not made in this rulemaking.

DATES: Effective July 3, 2013.

FOR FURTHER INFORMATION CONTACT: Jeanette Palmer, Marketing Specialist, 
Promotion and Economics Division, Fruit and Vegetable Program, AMS, 
USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, 
DC 20250-0244; telephone: (202) 720-9915; toll free (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 (7 U.S.C. 7423) 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 request 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-

[[Page 39565]]

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. Foreign producer associations consisting of foreign 
producers would reflect the size of the producer entities. 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. The next 
available census of agriculture data will be available in 2014.
    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 396,423 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 countries that export mangos to the 
United States by allowing foreign producers in major producing 
countries 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 nominate themselves or other foreign producers for 
appointment to the Board. At a Board meeting, the Board decided to 
request this change. The change does not limit the foreign producer 
organizations' ability to submit nominations. The change increases the 
slate of candidates from which the Secretary may choose to appoint to 
the Board. It also provides an 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. 
Pursuant to section 1206.7, the fiscal period begins January 1. The 
term of office also begins January 1, pursuant to section 1206.32.
    The Board must schedule Board meetings around several domestic and 
international growing regions in the mango industry. The Board had 
considered changing its fiscal year, but that change was rejected by 
the 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 from among its members its officers as the Board determines 
appropriate. Therefore, the Board proposed updating the Order to 
reflect the particular needs of the mango industry and to provide for a 
more efficient management method. However, as discussed further in the 
background section, no change is made to section 1206.32 of the Order.
    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 
previously approved under OMB control number 0581-0093. This rule does 
not result in a change to the information collection and recordkeeping 
requirements previously approved.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

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. Currently,

[[Page 39566]]

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 ($0.0075) 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 countries 
that export mangos to the United States by allowing foreign producers 
in major producing countries to nominate foreign producers to serve on 
the Board. The Board wants to receive representation from all mango 
growing regions within the 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 nominate 
themselves or other foreign producers for appointment to the Board. At 
a meeting, the Board decided to request this change. The change does 
not limit the foreign producer organizations' ability to submit 
nominations. It increases the slate of candidates from which the 
Secretary may choose to appoint members to the Board.
    This 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 to nominate themselves or 
other foreign producers to serve 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. Pursuant to section 1206.7, the fiscal period begins January 1. 
The term of office also begins January 1, pursuant to section 1206.32.
    The Board must schedule Board meetings around several domestic and 
international growing regions in the mango industry. The Board had 
considered changing its fiscal year, but that change was rejected 
because the Board's fiscal year flows with the mango production cycle, 
which is a calendar year. The Board proposed updating the Order to 
reflect the particular needs of the mango industry and to provide for a 
more efficient management method. The proposal noted that the Board 
believed that electing its officers at the last meeting of the fiscal 
year would be more advantageous for the Board. We have further 
considered this matter and believe that the Board could make 
suggestions concerning officers prior to the start of the fiscal 
period, and the new Board appointed for the term of office beginning 
January 1, could consider the prior Board's suggestions before the 
Board makes its recommendation to the Secretary for approval. This will 
ensure that newly appointed members who may not have served on the 
prior Board would have the opportunity to participate in the election 
of officers. This action could be done on January 1, or soon thereafter 
through an electronic mail vote, by telephone, or other means of 
communications pursuant to section 1206.34(f) of the Order. The Board 
could specify these procedures in its bylaws.
    A proposed rule concerning this action was published in the Federal 
Register on February 6, 2013 (78 FR 8441). Copies of the rule were made 
available through the Internet at www.regulations.gov, by the 
Department, and the Office of the Federal Register. That rule provided 
a 20-day comment period which ended on February 26, 2013. Two comments 
were received by the deadline.

Summary of Comments

    The two comments received supported the proposed change to section 
1206.31(g). One commenter made a recommendation regarding the last 
sentence in section 1206.31(g) of the Order that requires foreign 
producer nominees to be representative of the major countries exporting 
mangos to the United States. The commenter suggested that the term 
``major exporting country'' be defined. As previously stated, Mexico, 
Ecuador, Brazil, Peru, Guatemala, Haiti, and Nicaragua account for 99 
percent of the mango imports into the United States. This suggestion 
was not part of this rulemaking and as such, should be presented to the 
Board for their consideration. Accordingly, no change has been made to 
this section.
    This commenter also was of the view with regard to the proposed 
change to section 1206.34, that the Board needs to determine the best 
time each year to hold election of officers. As discussed previously, 
the Board has the ability to determine an appropriate time each year to 
hold election of officers within a given year; however, in order to 
provide newly appointed members the opportunity to participate in 
electing officers, the election should take place on or after January 1 
as stated in the Order.
    After consideration of all relevant material presented, the Board's 
recommendation, public comments and other information, it is hereby 
found that this rule, published in the Federal Register on February 6, 
2013 (78 FR 8441), is consistent with and will effectuate the purposes 
of the Act.
    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 30 days 
after publication in the Federal Register because this action needs to 
be in effect before the Board makes a call for nominations for the term 
of office beginning January 1, 2014. Further, this action helps to 
increase the pool of nominees to be considered for appointment to the 
Board. Finally, the proposed rule provided for a 20-day comment period, 
and the two comments received support the changes.

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 
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

[[Page 39567]]

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.
* * * * *

    Dated: June 26, 2013.
Rex Barnes,
Associate Administrator.
[FR Doc. 2013-15747 Filed 7-1-13; 8:45 am]
BILLING CODE 3410-02-P