[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: 
<a href="/cdn-cgi/l/email-protection#ace1cddec0c9c2c982eec9d8d8dfecd9dfc8cd82cbc3da"><span class="__cf_email__" data-cfemail="dd90bcafb1b8b3b8f39fb8a9a9ae9da8aeb9bcf3bab2ab">[email protected]</span></a>.

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]
BILLING CODE P


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