[Federal Register Volume 84, Number 35 (Thursday, February 21, 2019)]
[Rules and Regulations]
[Pages 5335-5346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02859]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 35 / Thursday, February 21, 2019 /
Rules and Regulations
[[Page 5335]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1206
[Document No. AMS-SC-17-0002]
Mango Promotion, Research and Information Order; Amendment To
Include Frozen Mangos
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the Agricultural Marketing Service's (AMS)
regulations regarding a fresh mango national research and promotion
program to include frozen mangos as a covered commodity under the Mango
Promotion, Research and Information Order. The importers of frozen
mangos will be assessed one cent ($0.01) per pound on frozen mangos.
Also, the National Mango Board's (Board) membership will be expanded
from 18 to 21 with the addition of two importers of frozen mangos and
one foreign processor.
DATES: Effective March 25, 2019.
Collection and remittance of frozen mangos assessments and
applicable reporting will begin July 22, 2019.
FOR FURTHER INFORMATION CONTACT: Jeanette Palmer, 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) 720-9915; facsimile: (202) 205-2800;
email: [email protected].
SUPPLEMENTARY INFORMATION: This final rule affecting 7 CFR part 1206 is
authorized under the Commodity Promotion, Research, and Information Act
of 1996 (1996 Act) (7 U.S.C. 7411-7425).
Executive Orders 12866, 13563, and 13771
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 OMB
exempted from Executive Order 12866 review. Additionally, because this
rule does not meet the definition of a significant regulatory action it
does not trigger the requirements contained in Executive Order 13771.
See OMB's Memorandum titled ``Interim Guidance Implementing Section 2
of the Executive Order of January 30, 2017, titled ``Reducing
Regulation and Controlling Regulatory Costs'' (February 2, 2017).
Executive Order 13175
This final 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 final 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
This rule amends the AMS' regulations regarding a fresh mango
national research and promotion program to include frozen mangos as a
covered commodity. The program is administered by the Board with
oversight by USDA. This rule will add definitions to the regulations
for ``frozen mangos'' and ``foreign processor of frozen mangos'';
expand the Board's membership from 18 to 21 by adding two importers of
frozen mangos and one foreign processor of frozen mangos; assess frozen
mangos at a rate of $0.01 per pound; exempt from assessment importers
who import less than 200,000 pounds of frozen mangos annually; and make
clarifying and conforming changes to other provisions of the program.
This action was recommended by the Board in November 2016 and will
allow frozen mango stakeholders to participate in a coordinated effort
to maintain and expand the market for frozen mangos. This rule will
also update the definition for the term ``Board'' to reflect current
practices. Additionally, AMS has requested approval by OMB for the new
information collection requirements necessary to include frozen mangos
under the program.
Overview of Current Mango Program
The fresh mango research and promotion program took effect in
November 2004 (69 FR 59120) and assessment collection began in January
2005. Under the current program, assessments are collected from first
handlers and importers of 500,000 pounds or more of fresh mangos
annually. Assessments are used by the Board for projects designed to
maintain
[[Page 5336]]
and expand existing markets for fresh mangos in the United States.
Table 1 below shows the volume, value and price per pound for fresh
mango imports into the United States from 2005 through 2016.\1\ Imports
of fresh mangos have increased from about 575 million pounds in 2005
(valued at about $169 million) to almost 985 million pounds in 2016
(valued at $420 million). The price per pound for fresh mango imports
has increased from $0.29 in 2005 to $0.43 in 2016. In 2016, about 45
percent of the mangos imported into the United States were from Mexico,
22 percent were from Ecuador, and 18 percent were from Peru.
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\1\ https://apps.fas.usda.gov/gats/default.aspx.
Table 1--Volume, Value and Price/Pound for Fresh Mango Imports 2005-2016
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Imports (pounds)
Year (A) Value (B) Price/pound (C)
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2016................................................ 984,554,112 $420,291,061 $0.43
2015................................................ 861,384,226 401,260,865 0.47
2014................................................ 827,108,732 372,298,536 0.45
2013................................................ 766,477,061 296,953,865 0.39
2012................................................ 706,690,535 248,410,276 0.35
2011................................................ 810,404,105 284,744,341 0.35
2010................................................ 706,690,535 248,410,276 0.35
2009................................................ 633,703,998 217,448,516 0.34
2008................................................ 655,825,602 210,884,833 0.32
2007................................................ 650,918,405 196,062,305 0.30
2006................................................ 644,579,545 209,650,045 0.33
2005................................................ 575,057,320 169,117,171 0.29
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Column C equals Column B divided by Column A.
Assessment revenue under the fresh mango program increased from
$3,293,825 \2\ in 2007 to $7,374,170 \3\ in 2016. In 2016, less than
one percent of the total assessments were from domestic handlers as the
vast majority of assessments were collected from importers. The current
assessment rate under the program for fresh mangos is $0.0075 per
pound, pursuant to Sec. 1206.42(b).
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\2\ National Mango Promotion Board, Financial Statements Year
Ending December 31, 2007; Cross, Fernandez & Riley, LLP, Accountants
and Consultants; April 18, 2008; p. 13.
\3\ National Mango Promotion Board, Financial Statements and
Supplementary Information Years Ending December 31, 2016 and 2015;
BDO USA, LLP; March 15, 2017; p. 17.
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Since 2008, the Board has invested over $34 million of industry
funds to help increase mango consumption among U.S. consumers. The
Board has funded promotional programs with consumers, retailers and
restaurants within the United States. Retail stores of all sizes are
promoting mangos all year round, while restaurants all over the country
are offering their customers more mango dishes. Consumers are learning
more about mangos from multiple media sources and the demand for mangos
increased partly due to the Board's investments in educating consumers
about the health benefits of eating mangos.
There have been two economic studies done since the program's
inception in 2004 that assessed the effectiveness of the Board's
programs. The studies were conducted by Dr. Ronald Ward at the
University of Florida and published in 2011 and 2016 and are titled
``Estimating the Impact of the National Mango Board's Programs on the
U.S. Demand for Mangos.'' The 2016 study built on the 2011 study and
found that, for each dollar spent by the Board, approximately 11 to 12
times that was generated in sales. This return on investment indicates
the program's success in increasing the demand for mangos. The studies
are available from USDA or the Board.
Frozen Mango Data
Table 2 below shows the volume, value and price per pound of frozen
mango imports into the United States from 2005 through 2016.\4\ Imports
of frozen mangos have increased from almost 32 million pounds in 2005
(valued at about $14 million) to almost 118 million pounds in 2016
(valued at $101 million). The price per pound of frozen mango imports
has increased from $0.46 in 2005 to $0.86 in 2016. In 2016, over half
of the imports of frozen mangos into the United States were from
Mexico, 33 percent were from Peru, and 2 percent were from Guatemala.
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\4\ https://apps.fas.usda.gov/gats/default.aspx.
Table 2--Volume, Value and Price/Pound for Frozen Mango Imports 2005-2016
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Imports (pounds)
Year (A) Value (B) Price/pound (C)
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2016................................................ 117,724,239 $101,204,418 $0.86
2015................................................ 139,492,136 131,155,555 0.94
2014................................................ 116,950,534 82,257,399 0.70
2013................................................ 128,109,849 80,929,782 0.63
2012................................................ 91,630,515 54,466,961 0.59
2011................................................ 88,121,973 49,291,591 0.56
2010................................................ 64,688,410 38,581,629 0.60
2009................................................ 30,178,419 21,619,646 0.72
2008................................................ 51,756,422 32,298,845 0.62
2007................................................ 52,832,786 29,982,510 0.57
2006................................................ 44,351,020 22,447,677 0.51
2005................................................ 31,657,933 14,473,533 0.46
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Column C equals Column B divided by Column A.
[[Page 5337]]
Board Recommendation
Because of the current program's success at increasing the fresh
mango market, those who sell frozen mangos have been interested in
becoming part of the program. Mango producers often sell their mangos
for use by both the fresh and processed markets. Handlers and importers
may include all mango product categories in their businesses. However,
current Board promotion efforts only support mangos for the fresh
market.
Thus, the Board recommended amending part 1206 to include frozen
mangos. This will allow frozen mango stakeholders to participate in a
coordinated effort to maintain and expand the existing market for
frozen mangos. These efforts will be accomplished through Board
activities including promotion, research, consumer information,
education and industry information. By collaborating within the
existing national mango promotion program, frozen mango stakeholders
can provide to consumers more information on the various uses and
benefits of frozen mangos in order to increase demand for the
commodity.
Accordingly, several changes to part 1206 will be necessary to
expand the program to include frozen mangos. These changes are
described in the following paragraphs. Authority for the Board to
recommend changes to part 1206 is provided in Sec. 1206.36(m).
Definitions
Frozen Mangos
The term ``mangos'' is defined in Sec. 1206.11 to mean all fresh
fruit of Mangifera indica L. of the family Anacardiaceae. The term will
be revised to mean the fruit of Mangifera indica L. of the family
Anacardiaceae and will include both fresh and frozen mangos. Separate
definitions will be added in new paragraphs (a) and (b) of Sec.
1206.11 for fresh and frozen mangos, respectively. ``Fresh mangos''
will mean mangos in their fresh form. ``Frozen mangos'' will mean
mangos which are uncooked or cooked by steaming or boiling in water,
and then frozen, whether or not containing added sugar or other
sweetening agent.
Foreign Processor of Frozen Mangos
A definition will be added to part 1206 for ``foreign processor of
frozen mangos.'' Section 1206.8, which currently defines the term
``foreign producer'' will be redesignated as Sec. 1206.8a, and a new
Sec. 1206.8 will define the term ``foreign processor of frozen
mangos'' or ``foreign processor'' to mean any person: (a) Who is
engaged in the preparation of frozen mangos for market to the United
States and/or who owns or shares the ownership and risk of loss of such
mangos; and (b) who exports frozen mangos to the United States. As
described later in this document, a foreign processor will have a seat
on the Board.
Additionally, Sec. Sec. 1206.6 and 1206.9, which define the terms
``first handler'' and ``importer,'' respectively, to mean entities that
handle or import 500,000 pounds or more of mangos annually will be
revised to remove the references to volume. There are other sections in
part 1206 that apply to all first handlers and importers regardless of
the volume of mangos handled or imported (i.e., Sec. 1206.61 regarding
books and records and Sec. 1206.62 regarding confidential treatment
thereof). Thus, the definition of the terms ``first handler'' and
``importer'' will be revised to mean all such entities, regardless of
the volume of mangos handled or imported. Other sections of part 1206
where the volume handled or imported is relevant will specify the
applicable figure.
Mango Board
Establishment and Membership
Section 1206.30(a) regarding establishment and membership of the
Board specifies that the Board be composed of 18 members--8 importers,
1 first handler, 2 domestic producers and 7 foreign producers. This
section will be revised to add three Board seats--two for importers of
frozen mangos and one for a foreign processor of frozen mangos.
The Board's rationale for recommending the addition of three seats
representing the frozen mango industry is based on a review of import
data. Table 3 below shows fresh and frozen mango import data for 2014-
2016.\5\ Fresh and frozen mango imports account for an average of 88
and 12 percent, respectively, of the total volume of mango imports for
the 3-year period.
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\5\ https://apps.fas.usda.gov/gats/default.aspx.
Table 3--Fresh and Frozen Mango Import Volumes 2014-2016
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Total fresh and
Year Fresh mango imports Frozen mango imports frozen mango
(pounds) (pounds) imports (pounds)
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2016.................................. 984,554,112.............. 117,724,239.............. 1,102,278,350
2015.................................. 861,384,226.............. 139,492,136.............. 1,000,876,362
2014.................................. 827,108,732.............. 116,950,534.............. 944,059,266
3-Year Average........................ 891,015,690.............. 124,722,303.............. 1,015,737,993
Percent of Total...................... 88 percent \1\........... 12 percent \2\........... ..................
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\1\ This figure equals the 3-year average of 891,015,690 for fresh mango imports divided by the total mango
import figure of 1,015,737,993, multiplied by 100.
\2\ This figure equals the 3-year average of 124,722,303 for frozen mango imports divided by the total mango
import figure of 1,015,737,993, multiplied by 100.
Imports of fresh mangos account for over 99 percent of the
assessments under the current program. On the current 18-member Board,
15 out of the 18 seats (about 83 percent) are for importers and foreign
producers. If three Board seats are added to represent frozen mango
imports (two importers and one foreign processor), then 18 of the new
21-member Board (almost 87 percent) will represent foreign mangos.
Further, 3 of the 18 foreign-product seats (importers and foreign
producers) will represent frozen imported mangos (almost 17 percent)
and the remaining 15 seats (over 83 percent) will represent fresh
imported mangos. USDA concludes that the Board's recommendation
regarding frozen mango representation on the Board is
[[Page 5338]]
reasonable and Sec. 1206.30(a) will be revised accordingly.
Additionally, a sentence will be added to Sec. 1206.30(a) to
specify that first handler Board members must receive 500,000 pounds or
more of fresh mangos annually from producers, and importer Board
members must import 500,000 pounds or more of fresh mangos or 200,000
pounds or more of frozen mangos annually. These requirements are part
of the current de minimis exemption for the program (see Sec. 1206.43
Exemptions), added to the Establishment and Membership section in Sec.
1206.30 for clarification as to who is covered under the program.
Section 1206.30(b) defines Customs Districts within the United
States that are used for allocating importer Board seats based on the
volume of mangos imported into each respective district. This section
will be revised to state that the two Board seats for importers of
frozen mangos shall be allocated for importers who import into any of
the districts (or ``at-large'') defined in paragraphs (1) through (4)
of Sec. 1206.30(b). The Board recommended that these two seats be at-
large to allow nominees from all four districts. This can encourage
participation on the Board from this new importer group regardless of
their location.
Nominations and Appointments
Section 1206.31 prescribes procedures for nominating and appointing
Board members. Board staff solicits nominees for first handler, fresh
mango importer, and domestic producer member positions and voting is
conducted by mail ballot. Nominees to fill the foreign producer member
positions are solicited from foreign producers and from foreign
producer organizations. From the nominations, the Secretary of
Agriculture (Secretary) then selects the members of the Board.
This section will be revised to specify procedures for nominating
foreign processors and importers of frozen mangos. The procedures will
be similar to those in place for first handlers and importers of fresh
mangos. Nominees to fill the foreign processor seat will be solicited
from foreign mango organizations and from foreign processors. Foreign
mango organizations will submit two nominees for each position, and
foreign processors can submit their own name or the names of other
foreign processors directly to the Board. The nominees will represent
the major countries exporting frozen mangos to the United States.
Nominees to fill the two at-large seats on the Board will be
solicited from all known importers of frozen mangos. The members from
each district will select the nominees for the two at-large positions
on the Board. Two nominees will be submitted for each position. The
names of the nominees will be placed on a ballot that will be sent to
importers of frozen mangos in each of the four 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 will be
submitted to USDA as the first and second choice nominees.
Accordingly, in Sec. 1206.31, paragraph (e), which prescribes
nomination procedures for fresh mango importers, will be revised to
clarify that the procedures pertain to fresh mango importers. Further,
paragraph (h) will be redesignated as paragraph (k), a new paragraph
(h) will be added to specify procedures for nominating foreign
processors, and a new paragraph (i) will be added to specify procedures
for nominating frozen mango importers.
A new paragraph (j) will be added to Sec. 1206.31 to clarify that
first handler nominees for a Board position must receive more than
500,000 pounds of fresh mangos annually from producers, and importers
must import 500,000 pounds or more of fresh mangos annually or 200,000
pounds or more of frozen mangos annually.
Term of Office
Section 1206.32 specifies that Board members serve for a 3-year
term of office. Members may serve a maximum of two consecutive 3-year
terms. This section will be revised to include the new positions for
importers of frozen mangos and foreign processors. Similar to the other
Board members, the term of office for the new positions will be 3
years, and no member can serve on the Board for more than two
consecutive 3-year terms.
Procedure
Section 1206.34(a) specifies that a quorum for the current 18-
member Board consists of 10 members. This rule will increase the number
of Board seats from 18 to 21, which necessitates an increase in quorum
requirements. Therefore, this section will be revised to specify that a
quorum at a Board meeting exists when at least 11 of the 21 Board
members are present.
Assessments
Section 1206.42(b) specifies that the assessment rate is three
quarters of a cent ($0.0075) per pound on all mangos (fresh). Pursuant
to paragraph (d) of Sec. 1206.42, import assessments are collected
through U.S. Customs and Border Protection (Customs). Pursuant to
paragraph (e) of that section, first handlers must submit their
assessments to the Board on a monthly basis.
In its deliberations on the proposed assessment rate for frozen
mangos, the Board considered the current assessment rate for fresh
mangos of $0.0075 per pound. Board members took into account that it
takes 2.5 pounds of fresh mangos to make one pound of frozen mangos.\6\
If the fresh equivalent assessment rate were applied to frozen mangos,
frozen mango importers would pay an assessment of approximately $0.019
per pound, which is 2.5 times the fresh mango assessment rate.
Additionally, according to the Board, manufacturing costs are higher
for frozen mangos than for fresh mangos because the fruit has been
processed.
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\6\ Kader, Adel A.; Fresh Cut Mangos as a Value-Added Product
(Literature Review and Interviews); October 2. 2008; page 20.
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The Board also considered assessment revenue as a percentage of
value. Board members refer to this computation as the ``Mango
Reinvestment Rate'' or MRR. To compute this for fresh mangos,
assessment revenue is divided by the value of imported fresh product.
The 3-year average for 2014-2016 for fresh mangos is 1.71 percent. The
computation is shown in Table 4 below.
Table 4--Assessment Revenue as Percentage of Value for Fresh Mangos
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Assessment Revenue as a
Year revenue Value percent of value
(A) (B) (C)
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2016................................................... $7,374,170 $101,204,418 1.75
2015................................................... 6,785,156 131,155,555 1.69
[[Page 5339]]
2014................................................... 6,249,918 82,257,399 1.68
3-yr average........................................... ................. ................. 1.71
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Column C is computed by dividing Column A by Column B, and multiplying that figure by 100.
The 1.71 percent MRR was shared with importers and processors of
frozen mangos. A majority of the importers and processors contacted
indicated that, while the MRR computation seems equitable, expenses are
higher and the profit margins are lower for frozen mangos. The industry
members contacted indicated that a MRR between 1.0 and 1.5 percent was
more in line with what they saw as equitable for the frozen mango
industry.
Thus, the Board ultimately recommended an assessment rate for
frozen mangos of $0.01 per pound. As shown in Table 5 below, this
computes to an average MRR of 1.21 percent for 2014-2016. Additionally,
only imports of frozen mangos will be assessed at this rate because
first handlers in the United States receive only fresh mangos from
producers.
Table 5--Projected Assessment Revenue as Percentage of Value for Frozen Mangos
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Assessment Projected Revenue as a
Year Imports Value rate (per assessment percent of
(pounds) pound) revenue value
(A) (B) (C) (D) (E)
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2016............................ 117,724,239 $101,204,418 $0.01 $1,177,242 1.16
2015............................ 139,492,136 131,155,555 0.01 1,394,921 1.06
2014............................ 116,950,534 82,257,399 0.01 1,169,505 1.42
3-yr average.................... .............. .............. .............. .............. 1.21
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Column D is computed by multiplying Column B by Column C.
Column E is computed by dividing Column A by Column B, and multiplying that figure by 100.
Accordingly, in Sec. 1206.42, paragraph (b) will be revised to
specify an assessment rate of $0.01 per pound for frozen mangos, and
paragraph (d)(2) will be revised to include the numbers for frozen
mangos listed in the Harmonized Tariff Schedule (HTS) of the United
States and update the HTS numbers for fresh mango imports. Section
517(d) of the 1996 Act (7 U.S.C. 7416) provides authority for one or
more rates of assessment to be levied under a research and promotion
program.
Exemptions
Section 1206.43 specifies that first handlers and importers of less
than 500,000 pounds of mangos (fresh) may claim an exemption from the
assessment obligation. The Board recommended revising the section to
specify that importers of less than 200,000 pounds of frozen mangos be
exempt from assessment. This amount was derived by taking into account
the ratio for converting fresh mangos into frozen mangos (2.5 pounds of
fresh to make 1 pound of frozen). Multiplying the factor 0.4 (1 pound
frozen divided by 2.5 pounds fresh) by the fresh mango exemption of
500,000 pounds computes to 200,000 pounds. Paragraphs (a) and (b) in
Sec. 1206.43 will be revised accordingly. (First handlers only receive
fresh mangos from domestic producers. Thus, the exemption threshold for
frozen mangos will only apply to importers.)
Subpart B of part 1206 specifies procedures for conducting a
referendum. In Sec. 1206.101, paragraphs (c) and (d), respectively,
define eligible first handlers and importers as those that handle or
import 500,000 pounds or more of mangos (fresh) annually. This section
will be revised to specify that importers of 200,000 pounds or more of
frozen mangos will be eligible to vote in referenda.
Further, this rule will revise the term ``Board'' as defined in
Sec. 1206.2 from the ``National Mango Promotion Board'' to ``National
Mango Board'' to reflect current practices. The term as it appears in
Sec. 1206.30 and in the undesignated heading preceding Sec. 1206.30
will also be revised to read ``National Mango Board.'' Finally, this
rule will update the OMB control number specified in Sec. 1206.78 from
0581-0209 to 0581-0093.
Final Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the final 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 2016 assessment 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 2016 Customs data,\7\ there are about 275 importers of
fresh mangos and 190 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.
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\7\ https://www.cbp.gov/trade/automated.
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This rule amends AMS' regulations regarding a fresh mango national
[[Page 5340]]
research and promotion program to include frozen mangos as a covered
commodity. The program is administered by the Board with oversight by
USDA. This rule will add definitions for frozen mangos (Sec. 1206.11)
and foreign processor of frozen mangos (Sec. 1206.8); expand the
Board's membership from 18 to 21 by adding two importers of frozen
mangos and one foreign processor of frozen mangos (Sec. Sec. 1206.30
and 1206.31); assess frozen mangos at a rate of $0.01 per pound (Sec.
1206.42); exempt from assessment importers who import less than 200,000
pounds of frozen mangos annually (Sec. 1206.43); and make clarifying
and conforming changes to other provisions in part 1206 (revisions will
be made to clarify the definitions for first handler (Sec. 1206.6) and
importer (Sec. 1206.9); quorum requirements will be revised (Sec.
1206.34); and definitions for importers eligible to vote in referenda
will be revised (Sec. 1206.101)). Authority for amending part 1206 is
provided in Sec. 1206.36(m) and in section 514 of the 1996 Act. This
rule will also update the definition of term ``Board'' to reflect
current practices (Sec. 1206.2, the heading preceding Sec. 1206.30,
and Sec. 1206.30). Section 1206.2 provides authority for revising the
term ``Board.'' Finally, this rule will update one of the OMB numbers
(0581-0209) listed in Sec. 1206.78.
Mango producers are not subject to assessment under the program.
Currently, first handlers and importers of less than 500,000 pounds of
fresh mangos annually are exempt from assessment. Further, organic
mangos and exports of U.S. mangos are also exempt from assessment under
the program.
Regarding the economic impact of this rule on affected entities,
importers of 200,000 pounds or more of frozen mangos annually will pay
an assessment of $0.01 per pound. Based on Customs \8\ data, of the 190
importers of frozen mangos, about 60 imported 200,000 pounds or more in
2016 and will pay assessments, and thus 130 importers imported less
than 200,000 pounds and will be exempt from paying assessments under
the program. Exempt importers will be able to apply to the Board for a
refund of assessments funds collected by Customs. Those requirements
are detailed in the section of this document titled Paperwork Reduction
Act. (The update to the term Board is administrative in nature.)
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Regarding the impact of this final rule action on the industry as a
whole, as shown previously in Table 3, imports of frozen mangos
averaged about 125 million pounds annually from 2014-2016. At an
assessment rate of $0.01 per pound, this would equate to about $1.25
million per year in assessment revenue.
Further, this rule will allow frozen mango stakeholders to
participate in a coordinated effort to maintain and expand the existing
market for frozen mangos in the United States. These efforts will be
accomplished through Board activities including promotion, research,
consumer information, education and industry information. By
collaborating within the existing national mango promotion program,
frozen mango stakeholders could provide to consumers more information
on the various uses and benefits of frozen mangos in order to increase
demand for the commodity.
With regard to alternatives, the Board contemplated the merits of
collecting assessments for all processed mangos (i.e., frozen as well
as juice and concentrate). The Board's staff attended several process
tradeshows, conferences, and other events to garner support for the
mango program. After several outreach activities, the frozen mango
industry demonstrated the highest positive response of the other
process categories to be included under the mango program.
As for alternative assessment rates, as previously mentioned, the
Board considered the current assessment rate for fresh mangos of
$0.0075 per pound. However, if the fresh equivalent assessment rate
were applied to frozen mangos, frozen mango importers would pay an
assessment of approximately $0.019 per pound, which is 2.5 times the
fresh mango assessment rate. (It takes 2.5 pounds of fresh mangos to
make one pound of frozen mangos.) Additionally, according to the Board,
manufacturing costs are higher for frozen mangos than for fresh mangos
because the fruit has been processed.
The Board also considered assessment revenue as a percentage of
value. Board members refer to this computation as the ``Mango
Reinvestment Rate'' or MRR. To compute this for fresh mangos,
assessment revenue is divided by the value of imported fresh product.
The 3-year average for 2014-2016 for fresh mangos is 1.71 percent. The
computation was shown previously in Table 4. The 1.71 percent MRR was
shared with importers and processors of frozen mangos. A majority of
the importers and processors contacted indicated that, while the MRR
computation seems equitable, expenses are higher and the profit margins
are lower for frozen mangos. Industry members contacted indicated that
a MRR between 1.0 and 1.5 percent was more in line with what they saw
as equitable for the frozen mango industry. Thus, the Board ultimately
recommended an assessment rate for frozen mangos of $0.01 per pound. As
shown previously in Table 5, this computes to an average MRR of 1.21
percent for 2014-2016.
The Board also considered alternative exemption thresholds. When
the Board initially contemplated expanding the mango program, it
considered including all categories of processed mangos, including
juice, concentrate and frozen. Each of these categories has a different
conversion ratio, or amount of fresh mangos that it takes to make the
respective processed fruit. At that time, the Board considered an
exemption threshold of 45,000 pounds. When the Board decided to pursue
amending the program to include only frozen mangos, the Board also
decided to recommend an exemption threshold of 200,000 pounds. This was
based on the industry average ratio of 0.4 for converting fresh mangos
into frozen mangos (2.5 pounds of fresh mangos to make one pound of
frozen mangos). Multiplying the fresh mango exemption threshold of
500,000 pounds by the 0.4 ratio equals 200,000 pounds. Thus, the Board
recommended an exemption threshold of 200,000 pounds for frozen mangos.
This action will impose additional reporting and recordkeeping
requirements upon importers and processors of frozen mangos. Importers
and foreign processors of frozen mangos eligible to and interested in
serving on the Board must submit a nomination form to the Board
indicating their desire to serve or nominate another industry member to
serve on the Board. Importers can cast a ballot and vote for candidates
to serve on the Board. Frozen mango importer and foreign processor
nominees must submit a background form to the Secretary to ensure they
are qualified to serve on the Board.
Additionally, importers of frozen mangos who import less than
200,000 pounds annually can request an exemption from paying
assessments. Importers of organic frozen mangos can submit a request to
the Board for an exemption from assessment for their organic mango
imports. Importers can also request a refund of assessments paid
through Customs.
Finally, frozen mango importers who want to participate in future
referenda on the program will have to complete a ballot for submission
to the Secretary.
New forms are required to collect the referenced information. These
forms will be submitted to OMB for approval under OMB Control No. 0581-
0314.
[[Page 5341]]
Specific burdens for the forms are detailed later in this document in
the section titled Paperwork Reduction Act. As with all Federal
promotion programs, reports and forms are periodically reviewed to
reduce information requirements and duplication by industry and public
sector agencies. Finally, there are no Federal rules that duplicate,
overlap, or conflict with this rule.
In regard to outreach efforts, in 2015 the Board commissioned a
survey to determine industry support for expanding the coverage of part
1206. Processed mango importers responded in favor of amending the
program. The survey respondents represented 72 percent of the imported
processed mango volume. The Board also hosted a webinar in June 2015
and invited all known importers of processed mangos to participate.
Fifteen industry members participated in the webinar. Of the attendees,
95 percent supported expanding the program to include processed mangos.
Two importers of frozen mangos participated in the Board's meeting in
September 2015 where this issue was discussed.
In 2016, Board representatives attended tradeshows and conferences
for processed fruit products in the U.S. and visited several mango
producing regions and receiving ports in order to meet with processors
and importers to discuss amending the program. Board representatives
attended 21 meetings with frozen mango importers of record. The Board
subsequently conducted another survey where 74 companies were contacted
via electronic mail and telephone calls. Of the companies that
participated in the survey, 71 percent were in favor of expanding the
program to include frozen mangos. The Board continues to educate and
update the mango industry on its marketing activities.
A proposed rule concerning this action was published in the Federal
Register on April 6, 2018 (83 FR 14771). A notice was published on July
12, 2018 (83 FR 32215) to open and extend the comment period. The Board
sent the proposed rule to the associations that represent the fresh
mango associations. In addition, the Board disseminated the proposed
rule via the internet by providing links to the proposal in its
industry newsletter and website. The proposal was also made available
through the internet by USDA and the Office of the Federal Register. A
60-day comment period ending June 5, 2018, and a 30-day comment period
extension ending August 13, 2018, which is a total of 90 days, were
provided to allow interested persons to submit comments.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS requested approval of the new information collection
and recordkeeping requirements for the frozen mango industry.
Information collection and recordkeeping requirements for the fresh
mango program (part 1206) have previously been approved under OMB
control nos. 0581-0093 and 0505-0001. AMS will submit a Justification
for Change to merge this new burden for frozen mangos into the
currently approved collection for fresh mangos.
Title: Frozen mango research, promotion and consumer information
program.
OMB Number: 0581-0314.
Expiration Date of Approval: 3 years from approval date.
Type of Request: New information collection for research and
promotion programs.
Abstract: The information collection requirements in the request
are essential to carry out the intent of the 1996 Act. The information
collection concerns a recommendation received by USDA to amend the
fresh mango national research and promotion program (part 1206) to
include frozen mangos. The program is currently financed by an
assessment on first handlers and importers of 500,000 pounds or more
fresh mangos annually. The program is administered by the Board with
oversight by USDA.
In November 2016, the Board recommended amending part 1206 to
include frozen mangos. Importers of 200,000 or more frozen mangos
annually will pay assessments. The Board will be expanded from 18 to 21
members by adding two importers of frozen mangos and one foreign
processor of frozen mangos. This action will allow frozen mango
stakeholders to participate in a coordinated effort to maintain and
expand the market for frozen mangos.
In summary, the information collection requirements regarding
frozen mangos pertain to Board nominations, the collection of
assessments, and referenda. Frozen mango importers and foreign
processors interested in serving on the Board must submit a
``Nomination Form'' to the Board indicating their desire to serve or to
nominate another industry member to serve on the Board. They can submit
a ``Nomination Ballot'' to the Board where they will vote for
candidates to serve on the Board. Also, nominees must submit a
background information form, ``AD-755,'' to the Secretary to ensure
they are qualified to serve. Frozen mango importers of less than
200,000 pounds annually can submit a request, ``Application for
Exemption from Assessments,'' to the Board and request a refund of any
assessments paid using the form ``Application for Reimbursement of
Assessment.'' (Import assessments will be collected by Customs and
remitted to the Board.) Importers of organic frozen mangos could also
apply to the Board for an exemption from assessment. Finally, importers
of frozen mangos will have the opportunity to vote in future referenda
on the program.
This new information collection will impose a total burden of
167.37 hours and 287.48 responses for 190 respondents. New information
collection requirements that are included in this rule pertaining to
the frozen mango industry include:
(1) Nomination Form
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response.
Respondents: Importers of 200,000 pounds or more of frozen mangos
annually and foreign processors.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: .33 (1 every 3
years).
Estimated Total Annual Burden on Respondents: 1.65 hours.
(2) Nomination Ballot
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response.
Respondents: Importers of 200,000 pounds or more of frozen mangos
annually and foreign processors.
Estimated Number of Respondents: 30.
Estimated Number of Responses per Respondent: .33 (1 every 3
years).
Estimated Total Annual Burden on Respondents: 2.48 hours.
(3) Application for Exemption From Assessments
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response. Upon
approval, the applicant will receive exemption certification.
Respondents: Importers of less than 200,000 pounds of frozen mangos
annually.
Estimated Number of Respondents: 130.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 32.5 hours.
[[Page 5342]]
(4) Application for Reimbursement of Assessment
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response.
Respondents: Importers of less than 200,000 pounds of frozen mangos
annually.
Estimated Number of Respondents: 130.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 32.5 hours.
(5) Organic Exemption Request Form
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response.
Respondents: Importers of 200,000 pounds or more of organic frozen
mangos annually.
Estimated Number of Respondents: 5.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 1.25 hours.
(6) Referendum Ballot
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.25 hour per response.
Respondents: Importers of 200,000 pounds or more of frozen mangos
annually.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: .20 (1 every 5
years).
Estimated Total Annual Burden on Respondents: 1.0 hours.
(7) Background Information Form AD-755 (OMB Form No. 0505-0001)
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 0.5 hour per response.
Respondents: Importers of 200,000 pounds or more of frozen mangos
and foreign processors.
Estimated Number of Respondents: 6.
Estimated Number of Responses per Respondent: .33 (1 every 3
years).
Estimated Total Annual Burden on Respondents: 1.0 hour.
(8) A Requirement To Maintain Records Sufficient To Verify Reports
Submitted Under Part 1206
Estimate of Burden: Public recordkeeping burden for keeping this
information is estimated to average 0.5 hour per record keeper
maintaining such records.
Recordkeepers: Importers of frozen mangos.
Estimated Number of Recordkeepers: 190 (130 exempt and 60
assessment payers).
Estimated Total Recordkeeping Hours: 95 hours.
An estimated 190 respondents will provide information to the Board.
The estimated cost of providing the information to the Board by
respondents would be $2,870.90. This total has been estimated by
multiplying 95 total hours required for reporting and recordkeeping by
$30.22, the average mean hourly earnings of importers. Data for
computation of this hourly rate was obtained from the U.S. Department
of Labor Statistics.
The revisions to the fresh mango program have been carefully
reviewed, and every effort has been made to minimize any unnecessary
recordkeeping costs or requirements, including efforts to utilize
information already submitted under other programs administered by USDA
and other state programs.
The forms require the minimum information necessary to effectively
carry out the requirements of the program, and their use is necessary
to fulfill the intent of the 1996 Act. Such information can be supplied
without data processing equipment or outside technical expertise. In
addition, there are no additional training requirements for individuals
filling out reports and remitting assessments to the Board. The forms
are simple, easy to understand, and place as small a burden as possible
on the person required to file the information.
The information to be included on these forms is not available from
other sources because such information relates specifically to
individual importers and processors of frozen mangos who are subject to
the provisions of the 1996 Act. Therefore, there is no practical method
for collecting the required information without the use of these forms.
The proposed rule published on April 6, 2018, with a 60-day comment
period ended on June 5, 2018. A notice was published on July 12, 2018,
in the Federal Register, to reopen the comment period for an additional
30 days until August 13, 2018. Additionally, comments were invited on
the information collection requirements prescribed in the Paperwork
Reduction Act section of this rule. The proposed rule provided for a
90-day comment period which ended August 13, 2018. No comments were
received regarding the information collection.
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
The proposed rule published in the Federal Register on April 6,
2018, provided a 60-day comment period that ended June 5, 2018. A
notice published on July 12, 2018, reopened the comment period for an
additional 30 days that ended on August 13, 2018. In total, nineteen
comments were received. Of the 19 comments, 14 comments were in favor,
3 comments in opposition, and 2 commented without taking a position on
the proposal. Two of the supporting comments were responding to a
commenter who opposed the proposed amendment.
Comments in Support
In general, eight commenters in favor of the proposed rule agreed
that the combined marketing efforts of the two industries will likely
result in the greater demand for mango consumption for both industries.
Also, three commenters stated by expanding the program to include
frozen mangos, it would leverage mango exposure to consumers whether
fresh or frozen in foodservice.
In addition, three commenters stated if the Board creates new
opportunities for frozen mangos, consumers will discover the health
benefits of frozen mangos and the ease of use, shelf stability, and
consistency in supply which will help grow the mango industry as a
whole.
One commenter stated an organization conducted a survey in 2014 of
frozen mango companies and 68 percent of the frozen mango processing
companies responded that promoting process mango would increase their
sales. Of the U.S. respondents alone, 75 percent of companies believed
promoting frozen mangos would improve sales.
Also, one commenter discussed how the Board spent several years and
financial resources conducting outreach meetings to gauge the interest
level of the mango processing community. The same commenter further
states the Board staff attended a processed mango conference in
multiple years to provide details on the proposed amendment and receive
feedback from the conference attendees. Additionally, the same
commenter states the goal of the proposed amendment is to strengthen
the mango industry for fresh and frozen mango products which will
benefit growers, processors, importers, and distributers in the mango
industry.
[[Page 5343]]
One commenter stated that the Board considers the proposed
assessment rate of $0.01 per pound for frozen mangos to be equitable.
The same commenter states the proposed three new seats on the Board
should be proportional to the revenue that would be generated by adding
frozen mangos to the program. In other words, if the proposed frozen
mango assessment rate is lowered, the number of new Board seats should
be reduced from three to two seats. The commenter believes this
modification would be more in line with the additional funds that would
be generated from the frozen mango assessment revenue at a lower
assessment rate. USDA will not modify the assessment rate or reduce the
number of new Board seats for the frozen mango importers and foreign
processors because USDA believes the proposal submitted by the Board
appears to be equitable based on the projected revenue that frozen
mangos is expected to generate shown in Table 5.
In addition, the same commenter stated the decision to broaden the
program to include frozen mangos should be decided in a referendum by
those who will be subject to assessment under the expanded program,
both fresh mango handlers and importers and frozen mango importers.
USDA agrees. Section 518(d) of the 1996 Act (7 U.S.C. 7417(d)) states
that the Secretary may conduct a referendum at any time to determine
whether the continuation, suspension, or termination of the order or a
provision of the order is favored by persons eligible to vote under the
program. Once this final rule becomes effective, USDA will conduct a
referendum to allow importers and handlers of fresh mangos and
importers of frozen mangos to vote on whether they approve the
continuation of the program with the inclusion of frozen mangos.
Comments Opposed
One commenter in opposition to the proposed rule stated that the
more the Board promotes fresh mangos, the fewer mangos that are
available to the frozen industry. As presented in the proposal, imports
of frozen mangos have increased from almost 32 million pounds in 2005
(valued at about $14 million) to almost 118 million pounds in 2016
(valued at $101 million). The price per pound for frozen mango imports
has increased from $0.46 in 2005 to $0.86 in 2016. Based on the data
presented, frozen mango imports has increased during the Board's
marketing promotions for fresh mangos.
Two commenters stated there would be a conflict to add frozen
mangos to the current fresh mango program. USDA does not perceive this
proposal as a conflict of interest between the fresh and frozen mango
industries. USDA provides oversight to other commodity boards such as
the U.S. Highbush Blueberry Council and the National Potato Promotion
Board that consist of both fresh and processed industry members. USDA's
experience is that both fresh and processed commodity industries
benefit from participation in a research and promotion program. The
same commenters expressed concerns about how the Board would use the
assessment revenue collected on imports of frozen mangos. When the
Board begins the collection of assessments on the imports of frozen
mangos, the Board which includes the new frozen members will develop a
sound marketing strategy to promote frozen mangos which must be
approved by USDA.
Furthermore, two commenters stated the proposed assessment rate of
one cent per pound on frozen mangos was higher than the assessment rate
of three quarters of a cent per pound on fresh mangos. The commenters
argue that the additional cost of frozen mango product will make the
product much less competitive in the marketplace. As stated in the
proposal, in the Board's deliberations on the proposed assessment rate
for frozen mangos, the Board considered the current assessment rate for
fresh mangos of three quarters of a cent per pound. Board members took
into account that it takes 2.5 pounds of fresh mangos to produce one
pound of frozen mangos. If the fresh equivalent assessment rate were
applied to frozen mangos, frozen mango importers would pay an
assessment of approximately $0.019 per pound, which is 2.5 times the
fresh mango assessment rate. According to the Board, manufacturing
costs are higher for frozen mangos than for fresh mangos because the
fruit has been processed. The Board recommended an assessment rate for
frozen mangos of one cent per pound. As shown in Table 5 of the
proposal, this computes to an average MRR of 1.21 percent for 2014-
2016. USDA accepts the Board's recommendation to assess frozen mangos
at one cent per pound based on the data provided in Table 5 of the
proposal.
Two commenters stated that other processed mango categories such as
canned, dried, and concentrate mangos were not included in the
proposal. As stated in the proposed rule, the Board contemplated the
merits of assessing all processed mangos. The Board's staff attended
several conferences, tradeshows, and other events to garner support for
the mango program. After the Board's outreach activities were
conducted, the frozen mango industry demonstrated the highest level of
interest of the other process categories to be included in the mango
program. USDA accepts the Board's recommendation to include frozen
mangos in the mango program.
Furthermore, one commenter stated that other processed mango
categories such as canned, dried, and concentrate mangos would not be
subject to assessments. This commenter is correct. The processed mangos
categories for asceptic, canned, concentrate, and dried mangos will not
be subject to assessments based on the proposed rule.
One commenter stated it was not clear whether the proposal to
include frozen mangos is to augment the Board's annual assessment
revenue or if the added revenue is expected to target specific frozen
mango production strategies. As presented in the proposed rule, if
frozen mango is included in the mango program and assessment
collections begins, the Board will use the additional assessment
revenue to maintain and expand the existing market for frozen mangos.
These efforts would be accomplished through Board activities including
promotion, research, consumer and industry information.
The same commenter stated the program does not outline any specific
proposal that prioritizes frozen mangos in its future research and
promotion programs. The specifics on how assessment funds would be
invested to promote frozen mango are not outlined in the proposal
because collection of assessments on frozen mangos has yet to begin.
When the Board begins the collection of assessments on the imports of
frozen mangos, the Board will develop a sound marketing strategy to
promote frozen mangos that must be approved by USDA. In addition, when
the two new importers of frozen mangos and one foreign frozen mango
processor members of the Board have been seated, they too can
participate in the development of the budget for research and marketing
strategies for both frozen and fresh mangos.
One commenter stated that though the proposal clarified that three
new seats would be added to the Board's membership--two for frozen
importers and one for a frozen processor--it did not make clear to what
extent these entities could be involved in both the fresh mango
production and frozen mango processing. The two additional seats for
importers of frozen mango can be filled by a person who imports fresh
and frozen mangos as long as they meet
[[Page 5344]]
the requirements as discussed in the Nomination and Appointments
section of this final rule. Also, for the additional seat of the
foreign processor of frozen mangos, a person can be nominated for both
the foreign processor of frozen mangos and foreign producer of fresh
mango positions. For example, an individual can be nominated for a
frozen importer seat, if the individual had imported 200,000 pounds or
more of frozen mangos in a year. The same individual could also submit
their name to the Board for a fresh importer seat, if they imported
500,000 or more of fresh mangos.
As stated in the Nomination and Appointment section of the
proposal, the Board staff will solicit the names of frozen mango
importers who import 200,000 pounds or more of frozen mangos annually
for a frozen mango importer seat and the voting will be conducted by
mail ballot. For the mail ballot, all eligible frozen mango importers
will have the opportunity to vote for the candidates who are nominated
for the two importer of frozen mango seats on the Board. For the
foreign mango processor seat, nomination of the foreign processor for
the frozen mangos seat will be solicited from foreign mango
organizations and foreign processors. The Board staff will submit the
names to the Secretary for selection of appointment. The candidate will
only be selected for one seat on the Board. The candidate must be a
member of the industry sector that they were appointed by the Secretary
to represent.
The same commenter stated the Board membership revision should
clarify whether the Board can be comprised of more than one individual
from the same or sister entities on behalf of fresh or the frozen
operations. The current program allows for members to serve on the
Board from the same business entity or related entity for fresh mangos.
The same can be afforded to the frozen mango seats if the candidates
meet the qualification requirements outlined in the Nomination and
Appointments section of the proposed rule.
Also, the same commenter stated it is in the best interest of the
entire mango industry to have more marketing support for frozen mangos
than fresh to increase demand. It is the commenter's opinion that this
will generate higher overall value that will benefit mango growers, as
well as both the fresh and frozen mango business. The allocation of the
Board revenues will be the decision of the Board membership that would
consist of both frozen and fresh mango industry stakeholders. The
Board's annual budget recommendation will be submitted to USDA for
approval.
Comments With No Position
One commenter wanted a clarification of a statement written in the
Regulatory Flexibility Act section that reads as follows: ``According
to the Board, there are five first handlers of fresh mangos. Based on
2016 assessment data, the majority of first handlers handled less than
$7.5 million worth of fresh mangos and would thus be considered small
entities.'' The same commenter stated the above could imply two
scenarios, and the commenter is unsure which scenario is correct.
Scenario (i): There are five first handlers of fresh mangos, most of
which are small (handled less than $7.5 million worth of mangos in
2016). Scenario (ii): Because the majority of worldwide first handlers
are small, the AMS only recognizes five handlers who handled more than
$7.5 million worth of mangos in 2016. Scenario (i) correctly states the
intended meaning of the quoted language from the proposed rule.
One commenter requested a 30-day comment period extension to allow
the frozen mango industry sufficient time to address their concerns
about the proposal. The Department granted the commenter's request for
a 30-day extension. The comment period had originally closed on June 5,
2018, after a 60-day comment period, but it was extended by a notice
published on June 12, 2018, that announced the 30-day comment period
would end on August 13, 2018. USDA allowed interested parties a total
of 90 days to comment on the proposal that was published on April 6,
2018, in the Federal Register.
USDA has considered all comments received and has not made any
changes based on those comments.
After consideration of all relevant matters presented, including
the information and recommendation submitted by the Board and other
available information, it is hereby found that this rule, as
hereinafter set forth, is consistent with and will effectuate the
purposes of the 1996 Act.
As stated previously, section 518(d) of the 1996 Act states that
the Secretary may conduct a referendum at any time to determine whether
the continuation, suspension, or termination or the order or a
provision of a program is favored by persons eligible to vote under
that program. Once this final rule becomes effective, USDA will conduct
a referendum to allow importers and handlers of fresh mangos and
importers of frozen mangos to vote on whether they approve of the
continuation of the program with the inclusion of frozen mangos. The
results of the referendum will be published in a press release.
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 part 1206 continues to read as follows:
Authority: 7 U.S.C. 7411-7425 and 7401.
0
2. Revise Sec. 1206.2 to read as follows:
Sec. 1206.2 Board.
Board or National Mango Board means the administrative body
established pursuant to Sec. 1206.30, or such other name as
recommended by the Board and approved by the Department.
0
3. 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 fresh 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
4. Amend section 1206.8 by revising the section heading, redesignating
the introductory text as paragraph (a) introductory text and paragraphs
(1) and (2) as paragraphs (a)(1) and (2), respectively, and by adding
paragraph (b).
The addition reads as follows:
Sec. 1206.8 Foreign producers and foreign processor of frozen mangos
or foreign processor.
* * * * *
(b) Foreign processor of frozen mangos or foreign processor means
any person:
(1) Who is engaged in the preparation of frozen mangos for market
to the United States and/or who owns or shares the ownership and risk
of loss of such mangos; and
(2) Who exports frozen mangos to the United States.
0
5. Revise Sec. 1206.9 to read as follows:
[[Page 5345]]
Sec. 1206.9 Importer.
Importer means any person importing 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
6. Revise Sec. 1206.11 to read as follows:
Sec. 1206.11 Mangos.
Mangos means the fruit of Mangifera indica L. of the family
Anacardiaceae. For purposes of this Order, the term mangos includes:
(a) Fresh mangos, which means mangos in their fresh form; and
(b) Frozen mangos, which means mangos that are uncooked or cooked
by steaming or boiling in water, and then frozen, whether or not
containing added sugar or other sweetening agent.
0
7. Revise the undesignated center heading preceding Sec. 1206.30, and
in Sec. 1206.30, revise paragraphs (a) and (b) to read as follows:
National Mango Board
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 of fresh
mangos; one first handler of fresh mangos; two domestic producers of
fresh mangos; seven foreign producers of fresh mangos; two importers of
frozen mangos; and one foreign processor of frozen mangos. First
handler Board members must receive 500,000 pounds or more of fresh
mangos annually from producers, and importer Board members must import
500,000 pounds or more of fresh mangos or 200,000 pounds or more of
frozen 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 fresh mangos
shall be allocated based on the volume of fresh 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. Two at-large
seats shall be allocated for importers of frozen mangos who import into
any of the four defined districts.
* * * * *
0
9. In Sec. 1206.31, revise paragraph (e), redesignate paragraph (h) as
paragraph (k), add new paragraph (h), and add paragraphs (i) and (j).
The revision and additions read as follows:
Sec. 1206.31 Nominations and appointments.
* * * * *
(e) Nominees to fill the fresh mango importer positions on the
Board shall be solicited from all known importers of fresh 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 fresh 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 fresh importers' first and second choice nominees.
* * * * *
(h) Nominees to fill the foreign processor of frozen mangos
position on the Board shall be solicited from foreign mango
organizations and from foreign processors. Foreign mango organizations
shall submit two nominees for each position, and foreign processors may
submit their name or the names of other foreign processors directly to
the Board. The nominees shall represent the major countries exporting
frozen mangos to the United States.
(i) Nominees to fill the at-large positions on the Board shall be
solicited from all known importers of frozen mangos. The members from
each district shall select the nominees for the two at-large 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 importers of
frozen mangos in each of the four 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 first and second choice nominees.
(j) First handler nominees must receive 500,000 pounds or more of
fresh mangos annually from producers, and importer nominees must import
500,000 pounds or more of fresh mangos or 200,000 pounds or more of
frozen mangos annually.
* * * * *
0
10. 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 and foreign processor 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
11. 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 eleven voting members are present.
* * * * *
0
12. In Sec. 1206.42, revise paragraphs (b) and (d)(1) through (3) and
add paragraph (d)(4) to read as follows:
Sec. 1206.42 Assessments.
* * * * *
(b) The assessment rate on all fresh mangos shall be three quarters
of a cent ($0.0075) per pound (or $0.0165 per kg). The assessment rate
on all frozen mangos shall be one cent ($0.01) per pound (or $0.022 per
kg). The assessment rates will be reviewed periodically and may be
modified by the Board with the approval of the Department.
* * * * *
(d) * * *
(1) The assessment rate for imported fresh mangos that are
identified by the numbers 0804.50.4045, 0804.50.4055, 0804.50.6045, and
0804.50.6055 in the Harmonized Tariff Schedule (HTS) of the United
States shall be the same or equivalent to the rate for mangos produced
in the United States.
(2) The import assessment shall be uniformly applied to imported
frozen mangos that are identified by the numbers 0811.90.5200 in the
Harmonized Tariff Schedule (HTS) of the United States shall be the same
or equivalent to the rate for mangos produced in the United States.
(3) 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 fresh mango and frozen mangos,
assessments will continue to be collected based on the new numbers.
(4) The assessments due on imported mangos shall be paid when they
enter or are withdrawn for consumption in the United States.
* * * * *
0
13. In Sec. 1206.43, revise paragraphs (a) and (b) to read as follows:
Sec. 1206.43 Exemptions.
(a) Any first handler of less than 500,000 pounds of fresh mangos
per calendar year, or importer of less than
[[Page 5346]]
500,000 pounds of fresh mangos or less than 200,000 pounds of frozen
mangos per calendar year may claim an exemption from the assessments
required under Sec. 1206.42. 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 fresh 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 fresh mangos or less than 200,000
pounds of frozen mangos for the fiscal period for which the exemption
is claimed.
* * * * *
0
14. Revise Sec. 1206.78 to read as follows:
Sec. 1206.78 OMB control number.
The control numbers assigned to the information collection
requirements of this part by the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35,
are OMB control number 0505-0001 and OMB control number 0581-0093.
0
15. 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 fresh 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 fresh mangos or 200,000 or more pounds of frozen mango 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, 0804.50.6055, and
0811.90.5200, during the representative period. Importation occurs when
mangos originating outside of the United States are released from
custody by Customs 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 Customs, as well as any persons who
act on behalf of others, as agents or brokers, to secure the release of
mangos from Customs when such mangos are entered or withdrawn for
consumption in the United States.
(e) Mangos means the fruit of Mangifera indica L. of the family
Anacardiaceae. The term mangos includes:
(1) Fresh mangos, which means in their fresh form; and
(2) Frozen mangos, which means mangos that are uncooked or cooked
by steaming or boiling in water, and then frozen, whether or not
containing added sugar or other sweetening agent.
* * * * *
Dated: February 14, 2019.
Bruce Summers,
Administrator.
[FR Doc. 2019-02859 Filed 2-20-19; 8:45 am]
BILLING CODE 3410-02-P