[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Rules and Regulations]
[Pages 33491-33494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13317]
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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: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting, as a
final rule with minor changes, an interim final rule that 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 July 26, 2021.
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 action has been reviewed in accordance with the requirements
of Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments. AMS has assessed the impact of this final rule on
Indian tribes and determined that this rule will not have tribal
implications that require consultation under Executive Order 13175. AMS
hosts a quarterly teleconference with tribal leaders where matters of
mutual interest regarding the marketing of agricultural products are
discussed. Information about the changes to the regulations will be
shared during an upcoming quarterly call, and tribal leaders will be
informed about these revisions to the regulation.
[[Page 33492]]
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. Originally, the program was funded by assessments on first
handlers and importers of fresh mangos, and was focused on maintaining
and expanding existing markets and uses for fresh 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 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. An interim
final rule was published in the Federal Register on February 24, 2021,
providing a 60-day comment period that ended April 26, 2021. In
accordance with the 1996 Act and Order, this rule adopts the interim
rule, with a few minor changes to sections 1206.34 and 1206.43. The
interim final rule proposed removal of the provisions of frozen mangos
as a covered commodity under the Order and the final rule is adopting
these changes from the interim final rule without change. They include:
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, the interim final rule proposed clarifying and conforming
changes to other provisions of the Order.
Sections 1206.34 and 1206.43 are being revised in this rule from
the interim final rule for further clarification.
Order Provisions
The interim rule set forth the following proposed changes that are
being adopted without change. In accordance with Sec. 1206.72, the
following changes are necessary to terminate and remove the provisions
regarding frozen mangos from the Order. Sections 1206.6 and 1206.9
which define the terms ``first handler'' and ``importer,''
respectively, were revised to add the reference that first handlers and
importers, respectively, must receive or import 500,000 or more pounds
of mangos; this volume was added for the purpose of clarity.
Section 1206.8, which defines the term ``foreign producers and
foreign processor of frozen mangos or foreign processor'', was 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 was revised to mean
all fresh fruit of Mangifera indica L. of the family Anacardiaceae. The
term ``frozen mangos'' was removed as it is no longer a covered
commodity.
Section 1206.30, which establishes the Board's membership, was
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 have been removed from the Board. 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, were restored to section 1206.30 as
paragraphs (b)(1)-(b)(4).
[[Page 33493]]
Section 1206.31, which describes the procedures for nominating and
appointing Board members to the Board, was 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,
was revised to remove the references to importers of frozen mangos and
foreign processors.
Section 1206.42 specifies the assessment rate for fresh mangos and
frozen mangos. Paragraph (b) was 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), was removed from the Order. Assessments on frozen mango
importers have been terminated.
Subpart B of part 1206 specifies procedures for conducting a
referendum. In Sec. 1206.101, paragraphs (c), (d), and (e) were
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, the interim final rule updated the OMB control number
specified in Sec. 1206.108 from 0581-0209 to 0581-0093.
Sections 1206.34 and 1206.43 from the interim final rule are being
further revised. 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
was revised to specify that a quorum at a Board meeting exists when at
least 10 of the 18 Board members are present. A comment was received
requesting a quorum at Board meetings be when at least one more than
half of the voting members are present. The comment was accepted, and
the section is revised in this final rule.
In Sec. 1206.43, paragraphs (a) and (b) were revised to remove
references to frozen mango exemptions as frozen mangos are no longer a
covered commodity. In making these changes, paragraph (a) was
inadvertently changed to exempting domestic first handlers when the
intent was to simply remove frozen mangos as a covered commodity, and
therefore, further revision is needed.
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 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 adopts the following proposed changes in the interim rule
without change and 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.
Sections 1206.34 and 1206.43 from the interim final rule are being
further revised for clarification in this rule.
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.
[[Page 33494]]
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.
Analysis of Comments
An interim final rule was published in the Federal Register on
February 24, 2021, providing a 60-day comment period that ended April
26, 2021. This rule will adopt most of the changes in the interim final
rule. One comment was received requesting a change to section 1206.34
Procedures, concerning what constitutes a quorum at a Board meeting.
Section 1206.34 was changed due to the reduction of the Board from 21
to 18, a decrease in quorum requirements was necessary, and therefore,
changed from 11 to at least 10 of the 18 Board members are present. The
commenter stated that this is problematic when the Board is not at full
capacity and recommends a quorum at Board meetings be when at least one
more than half of the voting members are present. USDA believes that
this comment has merit and is revising section 1206.34 Procedures to
specify that a quorum at a Board meeting exists when at least one more
than half of the voting members are present.
In addition, USDA made a correction to section 1206.43 Exemptions
to clarify a change that was made inadvertently exempting domestic
first handlers when the intent was to simply remove frozen mangos as a
covered commodity. Therefore, the section has been corrected to exempt
first handlers or importers of less than 500,000 pounds of mangos per
calendar year, and domestically exported mangos.
After consideration of all relevant matters presented, including
comments, the referendum vote and other available information, it is
hereby found that finalizing the interim final rule, with the changes
below, as published in the Federal Register [86 FR 11094] on February
24, 2021, will tend to effectuate the purposes of the 1996 Act.
List of Subjects in 7 CFR Part 1206
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Mango promotion, Reporting and
recording requirements.
Accordingly, the interim final rule amending 7 CFR part 1206, which
was published in the February 24, 2021, Federal Register [86 FR 11094],
is adopted as final with the following changes:
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. 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 one more than half of the voting members are present.
* * * * *
0
3. In Sec. 1206.43, revise paragraph (a) 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. Mangos produced domestically and exported
from the United States may annually claim an exemption from the
assessments required under Sec. 1206.42.
* * * * *
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-13317 Filed 6-24-21; 8:45 am]
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