[Federal Register Volume 72, Number 52 (Monday, March 19, 2007)]
[Rules and Regulations]
[Pages 12701-12704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1315]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

[Docket No. : AMS-FV-07-0019; FV-06-704 IFR]


Mushroom Promotion, Research, and Consumer Information Order; 
Reallocation of Mushroom Council Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule amends, on an interim basis, provisions of the 
Mushroom Promotion, Research, and Consumer Information Order (Order) to 
reapportion membership of the Mushroom Council (Council) to reflect 
shifts in United States mushroom production. Specifically, the 
amendments reapportion the Order's four United States geographic 
regions, and reallocate Council member representation in two of the 
four United States geographic regions (Regions 1 and 4). The Council, 
which administers the

[[Page 12702]]

Order, proposed the amendments in conformance with Order requirements 
to review--at least every 5 years and not more than every three years--
the geographic distribution of United States mushroom production volume 
and import volume, and recommend changes accordingly. The amendments 
will be effective for the 2008 Council appointments.

DATES: Effective date: March 20, 2007. Comments must be submitted on or 
before April 18, 2007.

ADDRESSES: Interested persons are invited to submit written comments on 
the Internet at http://www.regulations.gov or to the Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244-
Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; 
Fax: (202) 205-2800. Comments, which should reference the docket 
number, title of action, date, and page number of this issue of the 
Federal Register, will be made available for public inspection at the 
above address during regular business hours.

FOR FURTHER INFORMATION CONTACT: Daniel Manzoni, Marketing Specialist, 
or Sonia N. Jimenez, Chief, Research and Promotion Branch, FV, AMS, 
USDA, Stop 0244-Room 0634-S, Washington, DC 20250-0244; telephone (202) 
720-9915 or (888) 720-9917 (toll free).

SUPPLEMENTARY INFORMATION: This rule is issued under the Mushroom 
Promotion, Research, and Consumer Information Order [7 CFR part 1209]. 
The Order is authorized under the Mushroom Promotion, Research, and 
Consumer Information Act of 1990 (Act) [7 U.S.C. 6101-6112].

Executive Order 12866

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. The rule is not intended to have a retroactive effect 
and will not affect or preempt any other State or Federal law 
authorizing promotion or research relating to an agricultural 
commodity.
    The Act provides that any person subject to the Order may file a 
written petition with the Department of Agriculture (Department) if 
they believe that the Order, any provision of the Order, or any 
obligation imposed in connection with the Order, is not established in 
accordance with law. In any petition, the person may request a 
modification of the Order or an exemption from the Order. The 
petitioner is afforded the opportunity for a hearing on the petition. 
After a hearing, the Department would rule on the petition. The Act 
provides that the district court of the United States in any district 
in which the petitioner resides or conducts business shall have the 
jurisdiction to review the Department's ruling on the petition, 
provided a complaint is filed not later than 20 days after the date of 
the entry of the ruling.

Initial Regulatory Flexibility Analysis and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601 et seq.], the Agricultural Marketing Service (AMS) has examined the 
economic impact of this rule on small entities that would be affected 
by this rule. The purpose of the RFA is to fit regulatory actions to 
the scale of business subject to such actions in order that small 
businesses will not be unduly or 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 (importers) as 
having receipts of no more than $6,500,000 million. Under these 
definitions, there are 97 producers and 18 importers subject to the 
Order, and thus, eligible to serve on the Council. The majority of 
these producers and importers are considered small entities as defined 
by the Small Business Administration. Producers and importers of less 
than 500,000 pounds or less of mushrooms for the fresh market are 
exempt from the Order.
    The Order provides for the establishment of a Council consisting of 
at least four members and not more than nine members. For the purpose 
of nominating and appointing producers to the Council, the United 
States is divided into four geographic regions (Regions 1, 2, 3, and 4) 
with Council member representation allocated for each region based on 
the geographic distribution of mushroom production. For importers 
(referred to as Region 5), one Council member seat is allocated when 
imports, on average, exceeds 35,000,000 pounds of mushrooms annually. 
The Order also specifies that the Council will review--at least every 
five years and not more than every three years--the geographic 
distribution of United States mushroom production volume and import 
volume, and recommend changes accordingly.
    At its June 2006 meeting, the Council reviewed mushroom production 
volume in the United States and import volume for the July 1, 2002, 
through June 30, 2005, yearly periods. Based on the data, the Council 
reviewed and discussed reapportionment proposals. After considerable 
discussion, the Council approved a reapportionment proposal for 
recommendation to the Department. The Council recommends 
reapportionment of the Order's four United States geographic regions, 
and the reallocation of Council member representation in two of the 
four United States regions (Regions 1 and 4) to reflect shifts in 
United States mushroom production.
    This rule adopts, on an interim basis, the Council's recommendation 
to change the four United States geographic regions as follows: Region 
1--the States of Colorado, Oklahoma, Wyoming, Washington, Oregon, 
Florida, Illinois, Tennessee, Texas and Utah; Region 2--the State of 
Pennsylvania; Region 3--the State of California; and Region 4--all 
other States including the District of Columbia and the Commonwealth of 
Puerto Rico. Also, the amendments will change the number of Council 
member representatives from one member to three members for Region 1 
and from two members to zero members for Region 4. Representation for 
Region 2, Region 3, and importers remain unchanged at three members, 
two members, and one member, respectively.
    The overall impact of the amendments will be favorable for 
producers and importers because the producers and importers would have 
more equitable representation on the Council based on United States 
mushroom production volume and import volume.
    In accordance with the Office of Management and Budget (OMB) 
regulation [5 CFR part 1320] which implements the Paperwork Reduction 
Act of 1995 [44 U.S.C. Chapter 35], the information collection 
requirements under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 
et seq.], there are no new requirements contained in this rule. The 
information collection requirements have been previously approved by 
the Office of Management and Budget (OMB) under OMB control number 
0581-0093. In terms of alternatives to this rule, this action reflects 
the volume thresholds and procedures that have been established 
previously under the provisions of the Order for reallocation of 
Council membership.
    There are no Federal rules that duplicate, overlap, or conflict 
with this rule.

[[Page 12703]]

Background

    The Order is authorized under the Mushroom Promotion, Research, and 
Consumer Information Act of 1990 [7 U.S.C. 6101-6112], and is 
administered by the Council. Under the Order, the Council administers a 
nationally coordinated program of research, development, and 
information designed to strengthen the fresh mushroom's position in the 
market place and to establish, maintain, and expand markets for fresh 
mushrooms. The program is financed by an assessment of $0.0043 cents 
per pound on any person who produces or imports over 500,000 pounds of 
mushrooms for the fresh market annually. Under the Order, handlers 
collect and remit producer assessments to the Council, and assessments 
paid by importers are collected and remitted by the United States 
Customs Service.
    The Order provides for the establishment of a Council consisting of 
at least four members and not more than nine members. For the purpose 
of nominating and appointing producers to the Council, the United 
States is divided into four geographic regions (Regions 1, 2, 3, and 4) 
with Council member representation allocated for each region based on 
the geographic distribution of mushroom production. For importers 
(referred to as Region 5), one Council member seat is allocated when 
imports, on average, exceeds 35,000,000 pounds of mushrooms annually.
    Section 1209.30 of the Order provides that at least every five 
years, the Council should review changes in the geographic distribution 
of mushroom production volume throughout the United States and import 
volume, using the average annual mushroom production and imports over 
the preceding four years. Based on the review, the Council is required 
to recommend reapportionment of the regions or modification of the 
number of members from such regions, or both, to reflect shifts in the 
geographic distribution of mushroom production volume and importer 
representation.
    The Order provides that each producer region that produces, on 
average, at least 35 million pounds of mushrooms annually is entitled 
to one member. Further, each producer region is entitled to an 
additional member for each 50 million pounds of annual production, on 
average, in excess of the initial 35 million pounds required to qualify 
for representation, until the nine seats on the Council are filled. For 
purposes of this rule and as provided under the Order, ``on average'' 
reflects a rolling average of production or imports during the last 
three fiscal years.
    Under the current Order, regions and Council member representation 
for each region are the following: Region 1: Colorado, Connecticut, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, 
Michigan, Minnesota, Missouri, Montana, Nebraska, New York, New 
Hampshire, North Dakota, Ohio, Rhode Island, South Dakota, Vermont, 
Wisconsin, and Wyoming--1 producer member; Region 2: Delaware, 
Maryland, New Jersey, Pennsylvania, the District of Columbia, West 
Virginia, and Virginia--3 producer members; Region 3: Alaska, Arizona, 
California, Hawaii, Idaho, Nevada, Oregon, Utah, and Washington--2 
producer members; Region 4: Alabama, Arkansas, Florida, Georgia, 
Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, the 
Commonwealth of Puerto Rico, South Carolina, Tennessee, and Texas--2 
producer members; and Region 5: Importers--1 member. Based on data for 
July 1, 2002, through June 30, 2005, there is about 725 million pounds 
of mushrooms assessed on average annually under the Order. Currently, 
the Order's Regions 1, 2, 3, 4, and 5 represent 32 million pounds, 382 
million pounds, 133 million pounds, 113 million pounds, and 65 million 
pounds, respectively. Since Region 1 represents 32 million pounds of 
mushroom production, the region no longer qualifies for member 
representation because production within the region falls below the 35 
million pounds Order requirement.
    Based on data for the July 1, 2002, through June 30, 2005, the 
Order is revised to reapportion membership of the Council to reflect 
shifts in the geographic distribution of mushroom production. The 
annual average production of mushrooms for the Order's Regions 1, 2, 3, 
4, and 5 as adopted in this rule will be 168 million pounds, 382 
million pounds, 109 million pounds, 0 million pounds, and 65 million 
pounds. As adopted in this rule, Regions 1, 2, and 3 will be comprised 
of states with mushroom production, and Region 4 will be comprised of 
all other states with no mushroom production.
    Based on a review of United States mushroom production volume and 
import volume, this interim final rule adopts amendments to change the 
four United States geographic regions as follows: Region 1--the States 
of Colorado, Oklahoma, Wyoming, Washington, Oregon, Florida, Illinois, 
Tennessee, Texas and Utah; Region 2--the State of Pennsylvania; Region 
3--the State of California; and Region 4--all other States including 
the District of Columbia and the Commonwealth of Puerto Rico. Also, the 
amendments will change the number of Council member representatives 
from one member to three members for Region 1 and from two members to 
zero members for Region 4. Representation for Region 2, Region 3, and 
importers remain unchanged at three members, two members, and one 
member, respectively. The amendments, which represent shifts in 
mushroom production volume, will provide more equitable producer and 
importer representation on the Council based on U.S. mushroom 
production volumes and import volumes.
    Nominations and appointments to the Council are conducted pursuant 
to Sec. Sec.  1209.30 and 1209.230. Nominations for Council positions 
for terms of office that will begin January 1, 2008 will be based on 
the amendments contained in this rule.
    Pursuant to 5 U.S.C. 553, it is found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and good cause exists for not postponing the effective date of 
this rule until 30 days after publication in the Federal Register. This 
rule should be effective as soon as possible to allow the nomination 
process to be conducted based on the changes to the establishment and 
membership provision of this rule. The new term of office begins on 
January 1, 2008. In addition and for the same reasons, a 30-day period 
is provided for interested persons to comment on this rule.

List of Subjects in 7 CFR Part 1209

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Mushroom promotion, Reporting and 
recording, requirements.

0
For the reasons set forth in the preamble, 7 CFR part 1209 is amended 
as follows:

PART 1209--MUSHROOM PROMOTION, RESEARCH, AND CONSUMER INFORMATION 
ORDER

0
1. The authority citation for 7 CFR part 1209 continues to read as 
follows:

    Authority: 7 U.S.C. 6101-6112.


0
2. Section 1209.230 is revised to read as follows:


Sec.  1209.230  Reallocation of council members.

    Pursuant to Sec.  1209.30 of the Order, the regions and their 
number of

[[Page 12704]]

members on the Council shall be as follows:
    (a) Region 1: Colorado, Florida, Illinois, Oklahoma, Oregon, 
Tennessee, Texas, Utah, Washington, and Wyoming--3 Members.
    (b) Region 2: Pennsylvania--3 Members.
    (c) Region 3: California--2 Members.
    (d) Region 4: All other States, the District of Columbia, and the 
Commonwealth of Puerto Rico--0 Members.
    (e) Region 5: Importers--1 member.

    Dated: March 13, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-1315 Filed 3-14-07; 11:37 am]
BILLING CODE 3410-02-P