[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Rules and Regulations]
[Pages 11094-11098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03403]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1206
[Document No. AMS-SC-20-0086]
Mango Promotion, Research and Information Order; Removal of
Frozen Mangos
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Mango Promotion, Research and Information
Order (Order) by removing the provisions of frozen mangos as a covered
commodity. The Order is administered by the National Mango Board
(Board) with oversight by the U.S. Department of Agriculture (USDA). In
a referendum, first handlers and importers voted to remove frozen
mangos as a covered commodity under the Order. This rule will remove
frozen mangos as a covered commodity, discontinue the collection of
assessments on frozen mangos, remove frozen mango entity representation
on the Board, and make necessary conforming changes.
DATES:
Effective date: February 25, 2021. Assessment collection on frozen
mangos will discontinue on the effective date of this rule.
Comments due: Comments which are received by April 26, 2021 will be
considered prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. All comments must be submitted through the
Federal e-rulemaking portal at: http://www.regulations.gov and should
reference the document number and the date and page number of this
issue of the Federal Register. All comments submitted in response to
this rule will be included in the rulemaking record and will be made
available to the public. Please be advised that the identity of
individuals or entities submitting comments will be made public on the
internet at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Marlene Betts, Marketing Specialist,
Promotion and Economics Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, Room 1406-S, Stop 0244, Washington, DC
20250-0244; telephone: (202) 720-5057; or email:
[email protected].
SUPPLEMENTARY INFORMATION: This rule affecting 7 CFR part 1206 (the
Order) is authorized under the Commodity Promotion, Research, and
Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
Executive Orders 12866 and 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, reducing costs, harmonizing rules, and promoting flexibility.
This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) exempted from Executive Order
12866 review.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The review reveals that this regulation will not have
substantial and direct effects on Tribal governments and will not have
significant Tribal implications.
Executive Order 12988
In addition, 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 1996 Act (7 U.S.C. 7423) provides that it
shall not affect or preempt any other Federal or State law authorizing
promotion or research relating to an agricultural commodity.
Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject
to an order issued under the Act may file a written petition with USDA
stating that the order, any provision of the order, or any obligation
imposed in connection with the order, is not established in accordance
with the law, and request a modification of the order or an exemption
from the 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 the
entry of USDA's final ruling.
Background
The Mango Promotion, Research, and Information Order (Order) took
effect in November 2004 (69 FR 59120), and assessment collection began
in January 2005 for fresh mangos. The Order is administered by the
National Mango Board (Board) with oversight by the U.S. Department of
Agriculture. Currently, the program is funded by assessments on first
handlers and importers of fresh and frozen mangos, and is focused on
maintaining and expanding existing markets and uses for fresh and
frozen mangos through its research, promotion and information efforts.
Frozen mangos as a covered commodity was added to the Order on
February 21, 2019 (84 FR 5335), and a referendum was held in 2019 to
determine whether the industry favored the inclusion of frozen mangos
as a covered commodity under the Order. In the 2019 referendum, 52.5
percent of first handlers and importers of fresh and frozen mangos were
in favor of the amendment to add frozen mangos to the Order. Since the
vote passed by a small margin, the frozen mango industry asked the
Board to conduct another referendum on whether frozen mangos should
continue as a covered commodity under the Order.
The Order prescribes that every five years, the USDA conduct a
referendum to determine if first handlers and importers of mangos favor
the continuation of the Order. Such a referendum was required to be
conducted in 2020. At the Board's September 2019 meeting, it was
unanimously recommended to the USDA to add a second question to the
continuance referendum ballot concerning frozen mangos as a covered
commodity. USDA conducted a referendum from September 21 through
October 9, 2020, among eligible first handlers and importers to (1)
ascertain whether the continuance of the Order is
[[Page 11095]]
favored by eligible first handlers and importers covered under the
Order, and (2) ascertain whether the continuance of frozen mangos as a
covered commodity in the Order is favored by eligible first handlers
and importers (including frozen mango importers) covered under the
Order. The results were announced on October 20, 2020, stating that 60
percent of mango first handlers and importers voting were in favor of
continuing the Order. On the question as to whether to continue frozen
mangos as a covered commodity in the Order, 42 percent voted to keep
frozen mangos in the Order, 49 percent voted to eliminate frozen mangos
and 9 percent did not vote on this question. Of those representing
frozen mangos, 83 percent voted to eliminate frozen mangos as a covered
commodity.
Section 522 of the 1996 Act (7 U.S.C. 7421) and Sec. 1206.72 of
the Order (7 CFR 1206.72) provide that if the Secretary determines that
provisions of the Order are not favored by persons voting in a
referendum, the Secretary shall terminate those provisions. In
accordance with the 1996 Act and Order, this rule removes the
provisions of frozen mangos as a covered commodity under the Order
including: Removing definitions for frozen mangos and foreign processor
of frozen mangos; reducing the Board's membership from 21 to 18 by
eliminating two importers of frozen mangos and one foreign processor of
frozen mangos; removing assessment collection provisions for frozen
mangos at a rate of $0.01 per pound and thereby eliminating assessments
on frozen mango imports; and removing the exemption of assessment for
importers who import less than 200,000 pounds of frozen mangos
annually. In addition, this rule makes clarifying and conforming
changes to other provisions of the Order.
Order Provisions
In accordance with Sec. 1206.72, the following changes are
necessary to terminate and remove the provisions regarding frozen
mangos from the Order. In addition, Sec. Sec. 1206.6 and 1206.9 which
define the terms ``first handler'' and ``importer,'' respectively, are
revised to add the reference that first handlers and importers,
respectively, must receive or import 500,000 or more pounds of mangos;
this volume is added for the purpose of clarity.
Section 1206.8, which defines the term ``foreign producers and
foreign processor of frozen mangos or foreign processor'', is revised
to remove the definitions of ``foreign processor of frozen mangos or
foreign processor'' because they are no longer covered under the Order.
The definition for ``foreign producer'' will remain.
The definition of ``mangos'' in Sec. 1206.11 is revised to mean
all fresh fruit of Mangifera indica L. of the family Anacardiaceae. The
term ``frozen mangos'' is removed as it is no longer a covered
commodity.
Section 1206.30, which establishes the Board's membership, is
revised to reduce its size from 21 to 18 members due to the removal of
three members; i.e., two importers of frozen mangos and one foreign
processor. The three members are removed from the Board once this rule
is effective. The remaining 18-member Board will be comprised of 8
importers, 1 first handler, 2 domestic producers, and 7 foreign
producers. In addition, eligibility requirements for Board members from
the frozen mango industry are removed, and only those eligibility
requirements for the first handler and fresh mango importers remain.
Lastly, the four ``Importer Districts'' that were unintentionally
removed from the CFR when this section was amended, are restored to
section 1206.30 as paragraphs (b)(1)-(4).
Section 1206.31, which describes the procedures for nominating and
appointing Board members to the Board, is revised to remove procedures
for nominating foreign processors and importers of frozen mangos.
Section 1206.32, which specifies that Board members serve for a 3-year
term of office and may serve a maximum of two consecutive 3-year terms,
is revised to remove the references to importers of frozen mangos and
foreign processors.
Section 1206.34 specifies quorum requirements for Board meetings,
and with the reduction of the Board from 21 to 18, a decrease in quorum
requirements is necessary. Therefore, this section is revised to
specify that a quorum at a Board meeting exists when at least 10 of the
18 Board members are present.
Section 1206.42 specifies the assessment rate for fresh mangos and
frozen mangos. Paragraph (b) is revised to remove the provisions
assessing importers of frozen mangos one cent ($0.01) per pound, and
paragraph (d)(2), which includes the Harmonized Tariff Schedule (HTS)
of the United States that applies to imported frozen mangos (number
0811.90.5200), is removed from the Order. Assessments on frozen mango
importers shall be terminated. The termination of assessment collection
on frozen mango importers will be effective one day after publication
of this rule.
In Sec. 1206.43, paragraphs (a) and (b) are revised to remove
references to frozen mango exemptions as frozen mangos are no longer a
covered commodity.
Subpart B of part 1206 specifies procedures for conducting a
referendum. In Sec. 1206.101, paragraphs (c), (d), and (e) are revised
to delete the references to eligibility of frozen mango importers to
vote in referenda, as frozen mangos are no longer a covered commodity,
and to restore definitions prior to when this section was amended.
Finally, this rule updates the OMB control number specified in
Sec. 1206.108 from 0581-0209 to 0581-0093.
Regulatory Flexibility Act Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the rule on small
entities. Accordingly, AMS has considered the economic impact of this
action on such entities.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses subject to such actions so that small businesses will not be
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
(first handlers and importers) as those having annual receipts of no
more than $7.5 million.
According to the Board, there are five first handlers of fresh
mangos. Based on 2019 Customs data, the majority of first handlers
handled less than $7.5 million worth of fresh mangos and would thus be
considered small entities.
Based on 2019 Customs data,\1\ there are about 100 importers of
fresh mangos and 70 importers of frozen mangos. The majority of fresh
and frozen mango importers import less than $7.5 million worth of fresh
or frozen mangos and would also be considered small entities. This
action will remove frozen mango importers from the requirements
associated with this research and promotion Order and result in a
regulatory relaxation, and is therefore expected to reduce costs for
frozen mango importers.
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\1\ https://www.cbp.gov/trade/automated.
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This rule amends AMS's regulations regarding the mango research and
promotion program to remove frozen mangos as a covered commodity under
the Order. A continuance referendum was conducted September 21 through
October 9, 2020, among eligible first
[[Page 11096]]
handlers and importers to (1) ascertain whether the continuance of the
Order is favored by eligible first handlers and importers covered under
the Order, and (2) ascertain whether the continuance of frozen mangos
as a covered commodity in the Order is favored by eligible first
handlers and importers (including frozen mango importers) covered under
the Order. The results were announced on October 20, 2020, stating that
60 percent of mango first handlers and importers voting were in favor
of continuing the Order. On the question as to whether to continue
frozen mangos as a covered commodity in the Order, 42 percent voted to
keep frozen mangos in the Order, 49 percent voted to eliminate frozen
mangos, and 9 percent did not vote on this question. Of those
representing frozen mangos, 83 percent voted to eliminate frozen mangos
as a covered commodity.
This rule removes references to frozen mangos as a covered
commodity under the Order including: Removing definitions for frozen
mangos and foreign processor of frozen mangos; reducing the Board's
membership from 21 to 18 by eliminating two importers of frozen mangos
and one foreign processor of frozen mangos; removing assessment
collection provisions for frozen mangos at a rate of one cent ($0.01)
per pound and thereby eliminating assessments on frozen mango imports;
removing the exemption of assessment for importers who import less than
200,000 pounds of frozen mangos annually; removing definitions for
frozen mango importers concerning eligibility in a referendum; and
clarifying and conforming changes to other provisions of the Order.
This rule will also update the OMB number 0581-0209 listed in Sec.
1206.108 to OMB number 0581-0093.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection and recordkeeping requirements
previously approved by the OMB and titled Frozen Mango Research,
Promotion and Information Program, and assigned OMB No. 0581-0314 will
be submitted to OMB for withdrawal as these forms and information
collection regarding frozen mangos are no longer needed.
The information collection package (0581-0314) that imposes a total
burden of 166 hours and 475 responses for 190 respondents will be
terminated.
The industry voted in a referendum held September 21, through
October 9, 2020, to remove frozen mangos as a covered commodity from
the Order. On October 20, 2020, the Department announced through a
notice to trade that 42 percent of mango first handlers and importers
voted to keep frozen mangos as a covered commodity, 49 percent of mango
first handlers and importers voting were not in favor of frozen mangos
as a covered commodity and 9 percent did not vote on this question. Of
those representing frozen mangos 83 percent voted to eliminate frozen
mango as a covered commodity under the Order.
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.
USDA has determined that several provisions of the Order (7 CFR
part 1206) are not favored by persons voting in a referendum conducted
pursuant to the Act. USDA has determined that this rule is consistent
with and will effectuate the purposes of the 1996 Act. Pursuant to 5
U.S.C. 553, it is also found and determined upon good cause that it is
impracticable, unnecessary, and contrary to the public interest to give
preliminary notice prior to putting this rule into effect, and good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) This
action removes provisions referencing frozen mangos as a covered
commodity under the Order, thereby relieving importers and foreign
processors of frozen mangos from the burden to remit assessments and to
complete information collection requirements; (2) the termination of
frozen mangos as a commodity covered by the Order was favored by 49
percent of mango first handlers and importers voting in the referendum;
(3) of those representing frozen mangos, 83 percent voted to eliminate
frozen mangos as a covered commodity under the Order; and (4) this
interim rule provides a 60-day comment period, and all comments timely
received will be considered prior to finalization of this rule.
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 RESEARCH, PROMOTION, 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. Revise Sec. 1206.6 to read as follows:
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.
0
3. Revise Sec. 1206.8 to read as follows:
Sec. 1206.8 Foreign producer.
Foreign producer means any person:
(a) Who is engaged in the production and sales of mangos outside of
the United States who owns, or shares the ownership and risk of loss of
the crop for sale in the U.S. market; or
(b) 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.
0
4. Revise Sec. 1206.9 to read as follows:
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.
0
5. Revise Sec. 1206.11 to read as follows:
Sec. 1206.11 Mangos.
Mangos means all fresh fruit of Mangifera indica L. of the family
Anacardiaceae.
0
6. In Sec. 1206.30, revise paragraphs (a) and (b) to read as follows:
Sec. 1206.30 Establishment and membership.
(a) Establishment of the National Mango Board. There is hereby
established a National Mango Board composed of eight importers; one
first handler; two domestic producers; and
[[Page 11097]]
seven foreign producers. First handler Board members must receive
500,000 pounds or more mangos annually from producers, and importer
Board members must import 500,000 pounds or more mangos annually. The
chairperson shall reside in the United States and the Board office
shall also be located in the United States.
(b) Importer districts. Board seats for importers of mangos 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. Two seats shall be
allocated 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).
* * * * *
0
7. Amend Sec. 1206.31 by:
0
a. revising paragraph (e),
0
b. removing paragraphs ((h) through (j), and
0
c. redesignating paragraph (k) as paragraph (h).
The revision reads as follows:
Sec. 1206.31 Nominations and appointments.
* * * * *
(e) Nominees to fill the mango 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 mango 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.
* * * * *
0
8. 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. Members
may serve a maximum of two consecutive three-year terms. Each term of
office will end on December 31, with new terms of office beginning on
January 1.
0
9. In Sec. 1206.34, revise paragraph (a) to read as follows:
Sec. 1206.34 Procedure.
(a) At a Board meeting, it will be considered a quorum when at
least ten voting members are present.
* * * * *
0
10. In Sec. Sec. 1206.42, revise paragraphs (b), (c), and (d) to read
as follows:
Sec. 1206.42 Assessments.
* * * * *
(b) Assessment rate. The assessment rate on mangos shall be three
quarters of a cent ($0.0075) per pound (or $0.0165 per kg). The
assessment rates will be reviewed periodically and may be modified by
the Board with the approval of the Department.
(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 import assessment shall be uniformly applied to imported
mangos that are identified by the numbers in the 0804.50.4045,
0804.50.4055, 0804.50.6045, and 0804.50.6055 Harmonized Tariff Schedule
(HTS) of the United States and shall be the same or equivalent to the
rate of mangos produced in the United States.
(2) In the event that any HTS number subject to assessment is
changed and such change is merely a replacement of a previous number
and has no impact on the description of mangos, assessments will
continue to be collected based on the new numbers.
(3) The assessments due on imported mangos shall be paid when they
enter or are withdrawn for consumption in the United States.
* * * * *
0
11. In Sec. 1206.43, revise paragraphs (a) and (b) to read as follows:
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. First handlers of mangos produced
domestically and first handlers who export mangos from the United
States may annually claim an exemption from the assessments required
under Sec. 1206.42.
(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 must certify that it will receive less than
500,000 pounds of domestic mangos during the fiscal period for which
the exemption is claimed. An importer must certify that it will import
less than 500,000 pounds of mangos for the fiscal period for which the
exemption is claimed.
* * * * *
0
12. In Sec. 1206.101, revise paragraphs (c), (d), and (e) to read as
follows:
Sec. 1206.101 Definitions.
* * * * *
(c) Eligible 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.
(d) Eligible 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 that are identified in the Harmonized Tariff Schedule of the
United States by the numbers 0804.50.4045, 0804.50.4055, 0804.50.6045,
and 0804.50.6055 during the representative period. Importation occurs
when mangos originating outside of the United States are released from
[[Page 11098]]
custody by the U.S. Customs and Border Protection and introduced into
the stream of commerce in the United States. Included are persons who
hold title to foreign-produced mangos immediately upon release by the
U.S. Customs and Border Protection, as well as any persons who act on
behalf of others, as agents or brokers, to secure the release of mangos
from the U.S. Customs and Border Protection when such mangos are
entered or withdrawn for consumption in the United States.
(e) Mangos means all fresh fruit of Mangifera indica L. of the
family Anacardiaceae.
* * * * *
0
13. Revise Sec. 1206.108 to read as follows:
Sec. 1206.108 OMB control number.
The control number assigned to the information collection
requirement in this subpart by the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35,
is OMB control number 0581-0093.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2021-03403 Filed 2-23-21; 8:45 am]
BILLING CODE 3410-02-P