[Federal Register Volume 87, Number 210 (Tuesday, November 1, 2022)]
[Proposed Rules]
[Pages 65683-65687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23661]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 87, No. 210 / Tuesday, November 1, 2022 / 
Proposed Rules  

[[Page 65683]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1206

[Doc. No. AMS-SC-21-0101]


Adjustments to Mango Board Representation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This proposal invites comments on changes to the 
representation of the National Mango Board (Board) under the Mango 
Promotion, Research and Information Order (Order). This action would 
allocate the seven foreign producer Board seats to the top five mango 
exporting countries, based on mango volume exported to the United 
States, with an additional seat allocated to the top exporting country, 
and one at-large seat. In addition, the proposal would require no more 
than one Board member be employed by or be affiliated with the same 
company. The Board administers the Order with oversight by Agricultural 
Marketing Service (AMS). This rule was recommended by the Board and is 
issued with the concurrence of AMS.

DATES: Comments must be received by January 3, 2023.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. All comments must be submitted through 
the Federal e-rulemaking portal at https://www.regulations.gov and 
reference the document number and the date and page number of this 
issue of the Federal Register. All comments submitted in response to 
this proposed rule will be included in the rulemaking record and will 
be made available to the public. Please be advised that the identity of 
the individuals or entities submitting comments will be made public on 
the internet at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: George Webster, Marketing Specialist, 
Mid Atlantic Branch, Market Development Division, Specialty Crops 
Program, AMS, USDA, 1400 Independence Avenue SW, Room 1406-S, Stop 
0244, Washington, DC 20250-0244; Telephone: (202) 365-4172; or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under the Order (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. Agricultural Marketing Service (AMS) has assessed 
the impact of this proposed rule on Indian tribes and determined that 
this rule would 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 proposed 
changes to the regulations will be shared during an upcoming quarterly 
call, and tribal leaders will be informed about the proposed revisions 
to the regulation and the opportunity to submit comments. AMS will work 
with the USDA Office of Tribal Relations to ensure meaningful 
consultation is provided as needed with regards to this change to the 
Order.

Executive Order 12988

    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have 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 may file a written petition with United States Department 
of Agriculture (USDA) 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, USDA will issue a ruling on the 
petition. The 1996 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 USDA's final ruling.

Background

    This proposed rule invites comments on adjustments to the Board's 
representation under the Order. The Board administers the Order with 
oversight by AMS. The Order took effect in November 2004 (69 FR 59120), 
and assessment collection began in January 2005 for fresh mangos. The 
program is funded by assessments on first handlers and importers of 
fresh mangos, and it focuses on maintaining and expanding existing 
markets and uses for fresh mangos through its research, promotion, and 
information efforts. This proposed action would allocate the seven 
foreign producer Board seats as follows: one to each of the top five 
exporting countries, based on mango volume exported to the United 
States; one additional seat allocated to the top exporting country; and 
one at-large seat allocated to a foreign producer from any country

[[Page 65684]]

exporting mangos to the United States. This would help ensure that the 
countries that export the most mangos to the U.S. would be represented 
on the Board. Conforming changes would also be made to the nomination 
procedures to facilitate the reallocation of foreign producer Board 
seats.
    Additionally, the proposal would require that no more than one 
member per company be represented on the Board at the same time. This 
change would give more companies an opportunity to serve on the Board. 
The proposed changes were recommended by the Board at its meeting on 
November 18, 2021. The Board was not unanimously in favor of this 
recommendation. The resulting vote from the motion was as follows; ten 
members voted in favor, three members were not in favor, two members 
abstained from voting, one member was absent, and two Board seats were 
vacant. At the Board's meeting on March 15, 2022, AMS presented two 
options regarding the transition period of the foreign producer Board 
seats: (1) Gradually make these changes as Board terms cycled out; or 
(2) Enact these changes immediately and potentially risk having to ask 
one or more Board members to step down from their position in order to 
meet the new representation requirements. However, if after the 2023 
Board is selected, the foreign producer seats align with the 
representation requirements, no action would be needed. After much 
discussion, the Board recommended that these changes be enacted 
immediately. The resulting vote from the motion was 11 members in 
favor, four members not in favor, two members absent, and one Board 
seat was vacant.

Adjustment of Membership

    Section 1206.30(a) of the Order currently specifies that the Board 
be composed of 18 members--eight importers, one first handler, two 
domestic producers, and seven foreign producers--appointed by the 
Secretary of Agriculture (Secretary). The importer seats are allocated 
based on the volume of mangos imported into U.S. Customs and Border 
Protection (Customs) Districts identified by name and code number 
defined in the Harmonized Tariff Schedule of the United States. There 
are four districts, with two seats allocated for District I; three 
seats allocated for District II; two seats allocated for District III; 
and one seat allocated for District IV.
    The seven foreign producer seats are currently chosen by the 
Secretary from nominations provided by organizations of foreign mango 
producers and foreign mango producers who self-nominate. Both the mango 
industry and the Board have stated that the top countries exporting 
mango to the U.S. need representation on the Board to help oversee 
assessment allocation and be more involved in improving fruit quality, 
volume, demand, and consumption of mangos in the U.S.
    Sections 1206.36(m) and 1206.77 of the Order allow for the Board to 
recommend changes to the Order as the Board considers appropriate. On 
November 18, 2021, and again on March 15, 2022, the Board reviewed data 
from the USDA, Foreign Agricultural Service (FAS), Global Agricultural 
Trade System (GATS).\1\ After reviewing the data, discussion, and the 
Board wanting representation for each of the top five countries that 
export mangos to the U.S., the Board recommended the following: (1) 
five of the seven foreign producer seats shall be allocated to foreign 
producers from the top five exporting countries to the U.S.; (2) one 
additional foreign producer seat shall be allocated to the top 
exporting country; and (3) one seat shall be considered at-large, which 
means it may be allocated to a foreign producer from any country that 
exports mangos to the U.S. The data is summarized in Table 1 below:
---------------------------------------------------------------------------

    \1\ https://apps.fas.usda.gov/gats/default.aspx.

                     Table 1--Annual U.S. Fresh Mango Import Quantities by Country of Origin
                                              [In 10,000 lb units]
----------------------------------------------------------------------------------------------------------------
                                       2019            2020            2021           Average         Percent
----------------------------------------------------------------------------------------------------------------
Mexico..........................          71,733          75,623          74,466          73,941            62.9
Peru............................          11,855          16,297          16,013          14,722            12.5
Ecuador.........................           9,775          11,696          11,968          11,147             9.5
Brazil..........................           8,809          10,629          11,379          10,272             8.7
Guatemala.......................           2,959           2,427           3,385           2,924             2.5
Haiti...........................           1,839           2,562           2,671           2,357               2
Other (15 countries)............           1,718           1,849           3,180           2,249             1.9
                                 -------------------------------------------------------------------------------
    Total.......................         108,689         121,083         123,062         117,611
----------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Agriculture Global Agricultural Trade System.

    As shown in Table 1, over the past three years (2019-2021) 96.1 
percent of the total fresh-whole mango imported into the United States 
was supplied by five countries: Mexico with 62.9%, Peru with 12.5%, 
Ecuador with 9.5%, Brazil with 8.7%, and Guatemala with 2.5%.
    Furthermore, each of these countries is the main supplier of mango 
to U.S markets during specific times of the year. Therefore, the 
performance and success of each of the top five countries exporting 
mangos to the U.S. during their season affects the U.S. mango market, 
not just during their season but for subsequent mango suppliers as 
well.
    The Board believes that it is important that each of the top five 
countries exporting mangos to the U.S. be represented on the Board. 
Further, because Mexico currently provides the majority of mangos 
exported to the United States, it is valuable to have multiple 
representatives providing insight on the situation of the mango 
industry in that country. Therefore, this proposal would allocate five 
of the seven foreign producer Board seats to each of the top five 
countries based on the three-year average mango volume exported to the 
United States, with an additional seat allocated to the top exporting 
country (currently Mexico). One at-large seat would continue to be 
allocated to a foreign producer from any country exporting mangos to 
the United States.
    This proposed change would allow the Board's membership to better 
reflect the distribution of foreign mangos exported to the United 
States, while providing an opportunity for a more diverse pool of 
candidates. AMS oversees the mango program and

[[Page 65685]]

participates in Board meetings. This proposed action is consistent with 
AMS's priorities and oversight of the Order.
    The Board is currently conducting nominations for three foreign 
producer seats whose three-year term of office begins January 1, 2023. 
All three foreign producer members whose seats are expiring on December 
31, 2022, are in their second consecutive term and are therefore not 
eligible for re-appointment. Starting on January 1, 2023, the Board 
will have foreign producer members from the following countries: Mexico 
(two), Peru (one), Guatemala (one), with three open seats.
    Depending upon what countries the Secretary chooses for the three 
open seats for the 2023 Board, in order to align with the proposed 
foreign producer representation, one of these open seats would need to 
be from Ecuador and one seat would need to be from Brazil, with one at-
large member from any country that exports mango to the U.S. Since the 
Secretary's selections are not known, and this realignment is not 
currently in place, the members chosen for the three open seats whose 
terms begin January 1, 2023, would have to be reviewed by the Board and 
USDA. Should this proposal be adopted, six of the seven Board foreign 
producer seats would need to represent all five top exporting 
countries, based on the 2019-2021 three-year average volume imported 
into the U.S. as determined from the USDA, FAS data. Currently, that 
would mean that the seven foreign producer seats would be distributed 
as follows: Mexico two seats, Peru one seat, Ecuador one seat, Brazil 
one seat, Guatemala one seat, and one at-large seat.
    After AMS review of the current Board representation, if the 
foreign producer seats are aligned with the representation 
requirements, no action would be taken. If the representation 
requirements are not met, one or more Board members may need to step 
down from their role if established as proposed. The Board discussed 
two options: (1) to allow Board members to cycle off the Board as their 
terms expire; or (2) to enact the proposed representation provisions 
immediately and potentially risk asking members to step down. The Board 
voted during their March 15, 2022, meeting to move forward with option 
2, to immediately enact the changes. AMS oversees the mango program and 
participates in all Board meetings, and the Secretary is responsible 
for the selection of all Board members. As such, all effort would be 
undertaken to avoid disruption of the Board as currently established 
should the changes that are herein proposed be adopted.
    Once the Board is appointed and realigned to represent the top five 
countries exporting mangos to the United States, every three years 
thereafter, the Board will review the USDA, FAS, data and if warranted, 
recommend to the USDA changes to the top five exporting countries to 
the United States. These recommendations would need to be made before 
the nomination process begins the following year.

Nominations and Appointments

    Section 1206.31 establishes the procedures for nominations to 
obtain Board nominees for appointment. The Board discussed at its 
November 18, 2021, meeting, and several other occasions, allowing 
individuals from the same or related companies to serve on the Board at 
the same time. Occurrences of this nature have increased over time, 
especially from companies who participate in the nomination process. 
The concerns are mainly from U.S. importers who believe that the same 
few companies continue to have additional representatives appointed to 
the Board while they are already represented on the Board.
    This situation has occurred multiple times since the Board's 
inception. However, with an industry focus on increasing the diversity 
of the Board, the Board recommended limiting the number of Board 
members that may represent any one affiliated business interest, 
however organized. Therefore, this proposal would amend Sec.  1206.31 
of the Order to add paragraph (i), which provides that no more than one 
Board member shall be employed by or be affiliated with a single or 
multiple corporations, companies, or partnerships or any other legal 
entities with common ownership, foreign or domestic.
    This change is intended to help increase the number of 
organizations represented on the Board, and expand the diversity of 
experience, expertise, and location of members on the Board. This 
proposed action is consistent with AMS's priorities and oversight of 
the Order.

Vacancies

    Section 1206.33 establishes procedures for vacancies on the Board. 
It describes what to do if the Board member is no longer a member of 
the category for which they are appointed, if a member is not able to 
fulfill their position, and how to fill an unexpired term. With the 
Board's proposal to have no more than one member on the Board per 
company, this section will be updated. Section 1206.33(d) would be 
added to address the situation where, if a Board member becomes 
employed or affiliated with another Board member's company during their 
term, such position would automatically become vacant.

Initial Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), AMS has considered the economic impact of this action 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 
service firms as those having annual receipts of no more than $30 
million (13 CFR part 121). First handlers and importers would be 
considered agricultural service firms.
    According to the most recent U.S. Agricultural Census, which was 
published in 2017, a limited number of mangos are produced in the U.S. 
and territories of California, Florida, Hawaii, Texas, and Puerto Rico. 
The majority of U.S. demand for mangos is met by imports. In 2017, the 
U.S. had a total of 3,328 acres of mangos, up 322 acres (11 percent) 
from 2012. The Agricultural Census does not breakdown the allocation of 
acreage by state. According to USDA Foreign Agricultural Service data 
obtained from the Global Agricultural Trade System (GATS), five 
countries account for 96.1 percent of fresh mango imports. These 
countries and their respective share of the imports (from January 2019 
to December 2021) include Mexico (62.9%); Peru (12.5%); Ecuador (9.5%); 
Brazil (8.7%); and Guatemala (2.5%).
    The following are not subject to the assessment: mango producers, 
first handlers and importers who market or import less than 500,000 
pounds of mangos, and mangos exported out of the United States.
    According to Customs data, in 2021 there were 295 importers and 2 
first handlers. Of these entities, 95 were subject to assessments under 
the Order and had 2021 import quantities of 500,000 pounds or more. 
There were 3 entities with import valuations exceeding $30 million 
dollars. Therefore, the majority of assessed importers and first 
handlers (92 out of 95) may be considered small businesses.
    The proposed rule seeks to increase the pool of nominees from 
countries that export mangos to the United States. The Board wants to 
receive

[[Page 65686]]

representation from all growing regions that export mangos into the 
United States. The proposed rule provides an opportunity to increase 
diversity and would not place undue economic burden on small business 
importers and first handlers as they are eligible to serve on the 
Board. Domestic and foreign producers that are classified as small 
business entities are also not burdened since they are not subject to 
assessment under the Order, still such individuals are eligible to 
serve on the Board along with importers and first handlers.
    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.
    Regarding alternatives, the Board discussed in detail the option to 
keep the foreign producer Board member seat allocation as-is. The Board 
reviewed information provided from the staff that showed, since the 
Board's formation, all foreign producer appointments have been from the 
same five countries (Mexico, Guatemala, Peru, Ecuador, and Brazil), and 
that in 2022 the Board will have seven foreign producers representing 
only three countries. The Board believes that foreign producer 
representation should be from each of the top five countries exporting 
mangos to the United States, and to have an at-large seat available to 
a foreign producer from any country exporting mangos to the United 
States. As such, this change is being proposed to help realign the 
Board's membership to better reflect the distribution of foreign grown 
mangos exported to the U.S. AMS oversees the mango program and 
participates in Board meetings. This proposed action is consistent with 
AMS's priorities and oversight of the Order.
    The Board also considered allowing more than one member per company 
to sit on the Board at the same time. Throughout the history of the 
National Mango Board, there have been multiple instances where Board 
members from the same company served on the Board at the same time. 
However, the Board members agreed that the industry has grown and 
evolved and, therefore, it is important to increase the industry's 
participation on the Board and increase the diversity of individuals 
serving on the Board. This proposed action would revise the Order to 
provide that no more than one member shall be employed by or be 
affiliated with the same company. This change was proposed to help 
increase the opportunity for more company representatives to serve on 
the Board and to expand the diversity of experience, expertise, and 
location of members. AMS encourages efforts to increase the diversity 
of representation on the Board.
    Regarding outreach efforts, the Board discussed this action during 
Board meetings in 2020, and in meetings during March and November of 
2021, and the Board meeting in March 2022. This proposed action was 
also presented during the Foreign Mango Organization meeting in 
February 2022. Attendees from this meeting included representatives 
from the following countries: Mexico, Ecuador, Peru, Guatemala, Brazil, 
Colombia, and the Dominican Republic. All of the Board's meetings are 
open to the public and interested persons are invited to participate 
and express their views.
    We have performed this initial RFA analysis regarding the impact of 
the proposed action on small entities and we invite comments concerning 
the potential effects of this action. 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 or citizen 
access to Government information and services, and for other purposes.
    AMS has determined that this proposed rule is consistent with and 
would effectuate the purpose of the 1996 Act.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments received in response to 
this proposed rule by the date specified will be considered prior to 
finalizing this action.

List of Subjects in 7 CFR Part 1206

    Administrative practice and procedure, Advertising, Agricultural 
research, Consumer information, Mango, Marketing agreements, Reporting 
and recording requirements.

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR part 1206 as follows:

PART 1206--MANGO RESEARCH, PROMOTION, AND INFORMATION

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

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

0
2. In Sec.  1206.30, revise paragraph (c) and add paragraph (d) to read 
as follows:


Sec.  1206.30  Establishment and membership.

* * * * *
    (c) Foreign producers. The seven Board seats for foreign producers 
of mangos shall be allocated based on a three-year average volume of 
mangos exported to the United States from a foreign country as follows:
    (1) Five of the seven seats shall be allocated to foreign producers 
from the top five exporting countries to the United States;
    (2) One additional seat shall be allocated to the top exporting 
country that exports the most mangos to the United States; and,
    (3) The one remaining seat shall be considered at-large, which 
means it may be allocated to a foreign producer from any country that 
exports mangos to the United States.
    (d) Adjustment of membership. The Board seats will be adjusted as 
follows:
    (1) At least once every five years, the producer and importer seats 
shall be reviewed. The Board will review the geographical distribution 
of production of mangos in the United States, the geographical 
distribution of the importation of mangos into the United States, the 
quantity of mangos produced in the United States, and the quantity of 
mangos imported into the United States. The review will be based on 
Board assessment records and statistics from the Department. If 
warranted, the Board will recommend to the Department that membership 
on the Board be altered to reflect any changes in geographical 
distribution of domestic mango production and importation, and the 
quantity of domestic production and imports. To ensure equitable 
representation, additional first handlers may be added to the Board to 
reflect increases in domestic production.
    (2) Every three-years the foreign producer seats shall be reviewed. 
A three-year average volume of mangos exported from a foreign country 
to the United States will determine the top five mango exporting 
countries. The three-year average will be based on import volume data 
from the USDA, Foreign Agricultural Service, Global Agricultural Trade 
System for the three complete preceding years. If warranted,

[[Page 65687]]

the Board will recommend to the Department that foreign producer 
membership on the Board be altered to reflect the three-year average 
volume of mangos exported to the United States by the top five 
exporting countries.
0
3. In Sec.  1206.31, revise paragraph (g) and add paragraph (i) 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 as specified in Sec.  1206.30.
* * * * *
    (i) No more than one member shall be employed by or be affiliated 
with a single or multiple corporations, companies, or partnerships or 
any other legal entities with common ownership, foreign or domestic.
0
4. In Sec.  1206.33, add paragraph (d) to read as follows:


Sec.  1206.33  Vacancies.

* * * * *
    (d) In the event that a Board member becomes employed or affiliated 
with another Board member's corporation, company, partnership or other 
legal entity during the Board member's term, such position shall 
automatically become vacant.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-23661 Filed 10-31-22; 8:45 am]
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