AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

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: Jeanette.Palmer@ams.usda.gov.

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 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.

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 § 1206.42(b).

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.

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 § 1206.36(m).

Definitions

Frozen Mangos

The term “mangos” is defined in § 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 § 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 § 1206.8a, and a new § 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, §§ 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., § 1206.61 regarding books and records and § 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.

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 reasonable and § 1206.30(a) will be revised accordingly.

Additionally, a sentence will be added to § 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 § 1206.43 Exemptions), added to the Establishment and Membership section in § 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 § 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 § 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 § 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 § 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.

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.

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.

Accordingly, in § 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 § 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 § 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 § 1206.2 from the “National Mango Promotion Board” to “National Mango Board” to reflect current practices. The term as it appears in § 1206.30 and in the undesignated heading preceding § 1206.30 will also be revised to read “National Mango Board.” Finally, this rule will update the OMB control number specified in § 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.

This rule amends 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 for frozen mangos (§ 1206.11) and foreign processor of frozen mangos (§ 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 (§§ 1206.30 and 1206.31); assess frozen mangos at a rate of $0.01 per pound (§ 1206.42); exempt from assessment importers who import less than 200,000 pounds of frozen mangos annually (§ 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 (§ 1206.6) and importer (§ 1206.9); quorum requirements will be revised (§ 1206.34); and definitions for importers eligible to vote in referenda will be revised (§ 1206.101)). Authority for amending part 1206 is provided in § 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 (§ 1206.2, the heading preceding § 1206.30, and § 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 § 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.)

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. 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.

(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.

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 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

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

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

2. Revise § 1206.2 to read as follows:

3. Revise § 1206.6 to read as follows:

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:

5. Revise § 1206.9 to read as follows:

6. Revise § 1206.11 to read as follows:

7. Revise the undesignated center heading preceding § 1206.30, and in § 1206.30, revise paragraphs (a) and (b) to read as follows:

National Mango Board

9. In § 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:

10. Revise § 1206.32 to read as follows:

11. In § 1206.34, revise paragraph (a) to read as follows:

12. In § 1206.42, revise paragraphs (b) and (d)(1) through (3) and add paragraph (d)(4) to read as follows:

13. In § 1206.43, revise paragraphs (a) and (b) to read as follows:

14. Revise § 1206.78 to read as follows:

15. In § 1206.101, revise paragraphs (c), (d), and (e) to read as follows:

Footnotes