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###### Department of Agriculture

###### Agricultural Marketing Service 

          - 7 CFR Part 1209 
          - [Docket No. : AMS-FV-07-0019; FV-06-704 IFR] 

# AGENCY:

Agricultural Marketing Service, USDA. 

# ACTION:

Interim final rule with request for comments. 

# 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                               ( print 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.                           ( print 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 §§ 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

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 

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

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

2. Section 1209.230 is revised to read as follows: 

§ 1209.230 

                            Pursuant to § 1209.30 of the Order, the regions and their number of                                   ( print 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