This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

26984 

Vol. 74, No. 107 

Friday, June 5, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1209 

[Doc. No. AMS–FV–08–0047; FV–08–702–PR 

2] 

RIN 0581–AC82 

Amendments to Mushroom Promotion, 

Research, and Consumer Information 

Order and Referendum Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This rule proposes to amend 

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 as well as 

to add language to the powers and 

duties section of the Order allowing the 

Council the power to develop and 

propose good agricultural and handling 

practices and related activities for 

mushrooms. Section 10104 of the Food, 

Conservation and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. No. 110–246) 

amended sections 1925(b)(2) and (c) of 

the Mushroom Promotion, Research, 

and Consumer Information Act of 1990 

(Act) [7 U.S.C. 6101–6112]. Specifically, 

section 10104 changes the Act’s 

requirements for geographic regions 

used to appoint producer members of 

the Council from four to three, and 

adjusts the pounds required by each 

region for Council membership, which 

will reallocate Council member 

representation in two of the three 

producer geographic regions (Regions 1 

and 2). Section 10104 also added 

language to the powers and duties 

section of the Act that authorizes the 

Council to develop and propose good 

agricultural practices and related 

activities for mushrooms. This rule 

proposes changes to the Order based on 

these amendments to the Act. A 

referendum will be conducted among 

eligible producers and importers of 

mushrooms to determine whether they 

favor the amendments to the Order. 

DATES: To be eligible to vote, mushroom 

producers and importers must have 

produced or imported on average over 

500,000 pounds of mushrooms annually 

from January 1, 2007, through December 

31, 2008. The referendum will be 

conducted by mail ballot from July 6, 

2009 through July 17, 2009. Ballots must 

be received by the referendum agents no 

later than the close of business, Eastern 

daylight-standard time, July 17, 2009, to 

be counted. 

ADDRESSES: Copies of the Order may be 

obtained from: Referendum Agent, 

Research and Promotion Branch, Fruit 

and Vegetable Programs, AMS, USDA, 

1400 Independence Avenue, SW., Stop 

0244, Room 0632–S, Washington, DC 

20250–0244; fax: (202) 205–2800; toll 

free (888) 720–9917 or at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Jeanette Palmer, Marketing Specialist, 

Research and Promotion Branch (RPB), 

Fruit and Vegetable Programs (FVP), 

AMS, USDA, 1400 Independence 

Avenue, SW., Room 0632, Stop 0244, 

Washington, DC 20250–0244; telephone: 

(202) 720–9915 or (888) 720–9917 (toll 

free); or facsimile: (202) 205–2800; or email: Jeanette.Palmer@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under the Mushroom 

Promotion, Research, and Consumer 

Information Order (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]. 

A proposed rule was published in the 

Federal Register on April 7, 2009 [74 FR 

15677], with a thirty-day comment 

period which closed on May 7, 2009. 

Pursuant to section 1209.300 of the 

Order, a referendum will be conducted 

among mushroom producers and 

importers to determine whether the 

reapportion of membership on the 

Council reflecting shifts in United States 

mushroom production as well as to add 

language to the powers and duties 

section of the Order allowing the 

Council the power to develop and 

propose good agricultural and handling 

practices and related activities for 

mushrooms is favored by persons voting 

in the referendum. 

The representative period for 

establishing voter eligibility for the 

referendum shall be the period from 

January 1, 2007, through December 31, 

2008. Section 1924(b)(3) of the Act 

requires that the Order be approved by 

a majority of producers and importers 

voting in the referendum which 

majority, on average, annually produces 

and imports into the United States more 

than 50 percent of mushrooms annually 

produced and imported by all those 

persons voting in the referendum. Only 

mushroom producers and importers 

who either produced or imported, on 

average, over 500,000 pounds of 

mushrooms annually during the 

representative period will be eligible to 

vote in the referendum. Mushroom 

producers and importers who have 

received an exemption from assessment 

for the entire representative period are 

ineligible to vote. The referendum shall 

be conducted by mail ballot from July 6, 

2009 through July 17, 2009. Ballots must 

be received by the referendum agents no 

later than the close of business, Eastern 

daylight-standard time, July 17, 2009, to 

be counted. 

Executive Order 12866 

This rule has been determined not 

significant for purposes of Executive 

Order 12866 and therefore has not been 

reviewed by the Office of Management 

and Budget (OMB). 

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 effect or 

preempt any State, Federal, or local 

laws, regulations, or policies 

authorizing promotion or research 

relating to an agricultural commodity, 

unless they represent an irreconcilable 

conflict with this rule. 

Under section 1927 of the Act, a 

person subject to an Order may file a 

written petition with the Department 

stating that the Order, any provision of 

the Order, or any obligation imposed in 

connection with the Order, is not in 

accordance with the law, and requesting 

a modification of the Order or an 

exemption from the Order. Any petition 

filed challenging the Order, any 

provision of the Order, or any obligation 

imposed in connection with the Order, 

shall be filed within two years after the 

effective date of the Order, provision, or 

obligation subject to challenge in the 


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petition. The petitioner will have the 

opportunity for a hearing on the 

petition. Thereafter, the Department will 

issue a ruling on the petition. The Act 

provides that the district court of the 

United States in any district in the 

petitioner resides or carries on business 

shall have the 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 the Department’s 

final ruling. 

Initial Regulatory Flexibility Analysis 

and Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601– 

612], 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 $7,000,000. There are 

approximately 107 producers and 18 

importers subject to the Order, and thus, 

eligible to serve on the Council. The 

majority of these producers and 

importers would not be considered 

small entities as defined by the Small 

Business Administration. Producers and 

importers of 500,000 pounds or less on 

average of mushrooms for the fresh 

market are exempt from the Order. 

The current 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. Currently, 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. 

Section 10104 of the 2008 Farm Bill 

amended sections 1925(b)(2) and (c) of 

the Mushroom Promotion, Research, 

and Consumer Information Act of 1990 

[7 U.S.C. 6101–6112]. Specifically, 

section 10104 reapportioned the Act’s 

requirements for geographic regions that 

represent the geographic distribution of 

mushroom production in order to 

appoint producer members of the 

Council from four to three, and adjusted 

the pounds required by each region 

(including importers) for Council 

membership. This proposal would 

change the current five geographic 

regions to four as follows: Region 1—all 

other States including the District of 

Columbia and the Commonwealth of 

Puerto Rico except for Pennsylvania and 

California; Region 2—the State of 

Pennsylvania; Region 3—the State of 

California; and Region 4—importers. 

Finally, section 10104 added language 

to the powers and duties section of the 

Act that authorizes the Council to 

develop and propose good agricultural 

and handling practices, and related 

activities for mushrooms. 

In 1990, there were 466 mushroom 

farms in 26 states, as reported by the 

National Agricultural Statistics Service 

(NASS). Mushrooms farms, like many 

other agricultural sectors, have 

experienced significant consolidation. 

In 2007, NASS reported 279 mushroom 

farms in 18 states. Pennsylvania, the 

largest mushroom producing state, 

produced 332.5 million pounds in 1990. 

Last year, NASS reported that 

Pennsylvania produced 496.6 million 

pounds accounting for 61 percent of the 

total volume of sales in the United 

States. According to the Council, 

changing economic conditions over the 

past 18 years, coupled with innovations 

in production methods, advancements 

in cold chain management and longrange transportation options have all 

contributed to mushroom farming 

operations becoming larger, but fewer in 

number. Currently, there are 107 entities 

in 11 states which are subject to the Act, 

and therefore eligible for nomination to 

the Council. Several of these entities are 

owned by companies which have 

multiple operations in different states. 

The Act states that no more than one 

member may be appointed to the 

Council from nominations submitted by 

any one producer or importer. 

According to NASS, at present 73 

percent of all domestic producers 

subject to the Act are located in the state 

of Pennsylvania. The value of sales for 

mushrooms shipped from Pennsylvania 

grew 16 percent from July 1, 2004 to 

June 30, 2008. Of the remaining 29 

producers subject to the Act, not located 

in Pennsylvania, 59 percent reside in 

the state of California, with the 

remaining 12 producers scattered among 

9 states. The value of sales for 

mushrooms shipped from California 

increased 8 percent from July 1, 2004 to 

June 30, 2008, while the value of sales 

for mushrooms shipped from the rest of 

the United States (excluding 

Pennsylvania) declined 3 percent. 

Pennsylvania and California alone 

account for 77 percent of all domestic 

producers subject to the Act and are 

growing in terms of fresh pounds 

produced and shipped, and thus are 

likely to remain viable regions for the 

foreseeable future. Pennsylvania’s 

designation as one of the three regions 

in the United States ensures that it 

receives representation relative to its 

production. With nearly 60 percent of 

the remaining producers subject to the 

Act and growing, California would also 

benefit from a regional designation. In 

reviewing the geographical regions, the 

Department also reviewed the importer 

seats to ensure that importers are 

adequately represented based on annual 

production numbers. Importers have a 

four year average annual production 

from January 1, 2004, through December 

31, 2007, of 68 million pounds. 

Therefore, according to the changes 

made to the Act and the proposed 

changes to the Order, importer 

representation on the Council will 

remain the same. 

Section 1925(b)(2) of the Act, 

Appointments, states that in making 

appointments of members to the 

Council, the Secretary shall take into 

account, to the extent practicable, the 

geographical distribution of mushroom 

production throughout the United 

States, and the comparative volume of 

mushrooms imported into the United 

States. 

According to the Council, the 

reduction in the number of regions from 

four to three for domestic production 

and the increase in pounds required for 

seats in each region will more 

accurately reflect the current status of 

mushroom production in the United 

States. 

This rule proposes to change the five 

current geographic regions as follows: 

Region 1—all other States including the 

District of Columbia and the 

Commonwealth of Puerto Rico except 

for Pennsylvania and California; Region 

2—the State of Pennsylvania; Region 

3—the State of California; and Region 

4—importers. 

In accordance with amendments to 

the Act, this proposed rule would also 

increase the threshold for regional 

representation on the Council from a 

production average of at least 35 million 

pounds to at least 50 million pounds 

annually. Each region that produces on 

average, at least 50 million pounds of 


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26986 Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Proposed Rules 

mushrooms annually shall be entitled to 

one representative on the Council. 

This proposed rule would also change 

the way additional members are 

appointed to the Council. Pursuant to 

the amendments to the Acts made by 

the 2008 Farm Bill, and subject to the 

9-member limit of members on the 

Council, the Secretary shall appoint 

additional members to the council from 

a region that attains additional pounds 

of production as follows: 

(i) If the annual production of a region 

is greater than 110,000,000 pounds, but 

less than or equal to 180,000,000 

pounds, the region shall be represented 

by 1 additional member. 

(ii) If the annual production of a 

region is greater than 180,000,000 

pounds, but less than or equal to 

260,000,000 pounds, the region shall be 

represented by 2 additional members. 

(iii) If the annual production of a 

region is greater than 260,000,000 

pounds, the region shall be represented 

by 3 additional members. 

Should, in the aggregate, regions be 

entitled to levels of representation that 

would exceed the nine-member limit on 

the Council under the Act, the seat or 

seats assigned would be assigned to that 

region or those regions with greater onaverage production or import volume 

than the other regions otherwise eligible 

at that increment level. 

With regard to alternatives, this 

proposed rule reflects the provisions of 

the Act as amended. 

Section 1925(c) of the Act was also 

amended by the 2008 Farm Bill to 

include language that authorizes the 

Council to develop and propose to the 

Secretary programs for good agricultural 

and good handling practices and related 

activities for mushrooms. Therefore, this 

proposed rule recommends an 

amendment to Section 1209.38 of the 

Order to include the following language: 

‘‘to develop and propose to the 

Secretary programs for good agricultural 

and good handling practices and related 

activities for mushrooms’’. 

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. 

Section 1924(b)(3) of the Act provides 

for referenda to be conducted to 

ascertain approval of changes to the 

Order prior to going into effect. Such 

amendments to the Order become 

effective, if the Secretary determines 

that the Order has been approved by a 

majority of the producers and importers 

of mushrooms voting in the referendum, 

which majority, on average, annually 

produces and imports into the United 

States more than 50 percent of 

mushrooms annually produced and 

imported by all those voting in the 

referendum. Accordingly, before these 

changes are made to the Order, a 

referendum will be conducted among 

eligible producers and importers of 

mushrooms. 

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], there 

are no new information collection 

requirements contained in this rule 

because the number of producer 

members will remain unchanged at nine 

producer members. The information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) under 

OMB control number 0581–0093. 

There are no federal rules that 

duplicate, overlap, or conflict with this 

rule. 

We have performed this Initial 

Regulatory Flexibility Analysis 

regarding the impact of this proposed 

amendment to the Order on small 

entities. We did not receive any 

comments on the Regulatory Flexibility 

Analysis. 

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 $0.005 

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 and Border Protection. 

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 million pounds 

of mushrooms annually. 

Section 1209.30(d) of the Order 

provides that at least every five years, 

and not more than every three years, the 

Council shall 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. 

Under section 1209.230 of the 

regulations, current regions and Council 

member representation for each region 

are as follows: Region 1: Colorado, 

Oklahoma, Wyoming, Washington, 

Oregon, Florida, Illinois, Tennessee, 

Texas and Utah—3 producer members; 

Region 2: the State of Pennsylvania—3 

producer members; Region 3: the State 

of California—2 producer members; 

Region 4: all other States including the 

District of Columbia and the 

Commonwealth of Puerto Rico—0 

producer members; and Region 5: 

importers—1 member. Based on data 

from the Council, from the period 

beginning January 1, 2004, through 

December 31, 2007, there is 

approximately 746 million pounds of 

mushrooms assessed on average 

annually under the Order. Currently, the 

Order’s Regions 1, 2, 3, 4, and 5 

represent 172 million pounds, 363 

million pounds, 110 million pounds, 15 

million pounds, and 68 million pounds, 

respectively, based on a four year 

average from January 1, 2004, through 

December 31, 2007. Since Region 4 

represents 15 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 the amendments to the Act 

made by section 10104 of the Farm Bill, 

and a review of United States 

mushroom production volume and 

import volume, this proposal would 

change the current five geographic 

regions to four as follows: Region 1—all 

other States including the District of 

Columbia and the Commonwealth of 

Puerto Rico except for Pennsylvania and 

California; Region 2—the State of 

Pennsylvania; Region 3—the State of 

California; and Region 4—importers. 


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The current Order also provides that 

each producer region that produces, on 

average, at least 35 million pounds of 

mushrooms annually is entitled to one 

member. The current Order also states 

that importers shall be represented by a 

single, separate region, and are also 

entitled to one representative, if on 

average, at least 35 million pounds of 

mushrooms are imported annually. 

Further, the current Order states that 

each region shall be entitled to 

representation by an additional Council 

member for each 50 million pounds of 

annual production or imports, on 

average, in excess of the initial 35 

million pounds required to qualify the 

region for representation, until the nine 

seats on the Council are filled. Section 

1209.12 of the Order provides that ‘‘on 

average’’ means a rolling average of 

production or imports during the last 

two fiscal years, or such other period as 

may be determined by the Secretary. For 

purposes of this rule, and as provided 

under the Order, ‘‘on average’’ reflects a 

rolling average of production or imports 

during the last four fiscal years. 

Section 1209.30(e)(4)(iii) of the 

current Order, provides that should 

regions be entitled to levels of 

representation that would exceed the 

nine-member limit on the Council under 

the Act, the regions shall be entitled to 

representation on the Council as 

follows: Each region with 50 million 

pounds of annual production or 

imports, on average, in excess of the 

initial 35 million pounds required to 

qualify the region for representation 

shall be assigned one additional 

representative on the Council, except 

that if under such assignments all five 

regions, counting importers as a region, 

if applicable, would be entitled to 

additional representatives, that region 

with the smallest on-average volume, in 

terms of production or imports, will not 

be assigned an additional 

representative. According to section 

1209.30(f) of the current Order, in 

determining the volume of mushrooms 

produced in the United States or 

imported into the United States, the 

Council and the Secretary shall: (1) 

Only consider mushrooms produced or 

imported by producers and importers, 

respectively, as those terms are defined 

in sections 1209.8 and 1209.15; and (2) 

used the information received by the 

Council under section 1209.60, and data 

published by the Department. 

In addition, the current Order 

provides that if after members are 

assigned to the regions, less than the 

entire nine seats on the Council have 

been assigned to regions, the remaining 

seats on the Council shall be assigned to 

each region for each 50 million pound 

increment of annual production or 

import volume, on average, in excess of 

85 million pounds until all the seats are 

filled. If for any such 50 million pound 

increment, more regions are eligible for 

seats than there are seats available, the 

seat or seats assigned for such increment 

shall be assigned to that region or those 

regions with greater on-average 

production or import volume than the 

other regions otherwise eligible at that 

increment level. 

Pursuant to the amendments made to 

the Act made by the 2008 Farm Bill, this 

proposed rule would increase the 

threshold for regional representation on 

the Council from a production average 

of at least 35 million pounds to at least 

50 million pounds annually. Each 

region that produces on average, at least 

50 million pounds of mushrooms 

annually shall be entitled to one 

representative on the Council. 

In addition, this proposed rule would 

also change language in the Order 

regarding how additional members are 

added to the Council. Additional 

members from each region that attains 

additional pounds of production would 

now be appointed to the Council as 

follows: 

(i) If the annual production of a region 

is greater than 110,000,000 pounds, but 

less than or equal to 180,000,000 

pounds, the region shall be represented 

by 1 additional member. 

(ii) If the annual production of a 

region is greater than 180,000,000 

pounds, but less than or equal to 

260,000,000 pounds, the region shall be 

represented by 2 additional members. 

(iii) If the annual production of a 

region is greater than 260,000,000 

pounds, the region shall be represented 

by 3 additional members. 

This proposed amendment to the 

Order would change the number of 

regions and Council member 

representatives as follows: Region 1—all 

other States including the District of 

Columbia and the Commonwealth of 

Puerto Rico except for Pennsylvania and 

California; Region 2—the State of 

Pennsylvania; Region 3—the State of 

California; and Region 4—importers. 

Should, in the aggregate, regions be 

entitled to levels of representation that 

would exceed the nine-member limit on 

the Council under the Act, the seat or 

seats assigned shall be assigned to that 

region or those regions with greater onaverage production or import volume 

than the other regions otherwise eligible 

at that increment level. 

Section 1925(c) of the Act was also 

amended by the 2008 Farm Bill to insert 

language allowing the Council to 

develop and propose to the Secretary 

programs for good agricultural and good 

handling practices and related activities 

for mushrooms. Therefore, this 

proposed rule recommends an 

amendment to section 1209.38 of the 

Order to include the following line: ‘‘to 

develop and propose to the Secretary 

programs for good agricultural and good 

handling practices and related activities 

for mushrooms.’’ 

For changes to the Order to become 

effective, the proposed amendments to 

the Order must be approved by a 

majority of the producers and importers 

of mushrooms voting in a referendum, 

which majority, on average, annually 

produces and imports into the United 

States more than 50 percent of 

mushrooms annually produced and 

imported by all those voting in the 

referendum. Accordingly, a referendum 

will be conducted among eligible 

producers and importers of mushrooms. 

The referendum will be conducted by 

mail ballot from July 6, 2009 through 

July 17, 2009. The representative period 

to be eligible to vote in the referendum 

is January 1, 2007, through December 

31, 2008. 

Ballots must be received by the 

referendum agents no later than the 

close of business, Eastern daylightstandard time, July 17, 2009, to be 

counted. 

Finally, any final rule published as a 

result of this action would terminate 

section 1209.230 of the regulations 

concerning reallocation of Council 

members. 

A thirty-day comment period was 

provided to allow interested persons to 

respond to this proposal which was 

published in the Federal Register on 

April 7, 2009 [74 FR 15677]. Copies of 

the rule were made available through 

the Internet by the Department and the 

Office of the Federal Register. That rule 

provided a thirty-day comment period 

which ended May 7, 2009. Three 

comments were received by the 

deadline. 

Two commenters stated that they 

agreed with the proposed amendment to 

the Order since it will make 

representation on the Council more 

equitable and expand the powers and 

duties of the Council. However, both 

commenters disagreed that a 

referendum be conducted to implement 

the proposed amendments. One of these 

commenters stated that section 

1924(b)(3) of the Act was misinterpreted 

as requiring a referendum. The 

commenters also stated that a 

referendum would be costly and time 

consuming and would delay 

implementation of the amendments. 

The Department disagrees with the 

two commenters. Section 1924(b)(3) of 

the Act provides for referenda to be 


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26988 Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Proposed Rules 

conducted to ascertain approval of the 

Order prior to going into effect. 

Section 1924(c)(2) of the Act states 

that provisions of this subtitle 

applicable to an order shall be 

applicable to amendments to the Order. 

In order to implement the Order, a 

referendum had to be conducted, 

accordingly, a referendum is necessary 

before making changes to the Order 

based on the amendment to the Act. 

Such amendments to the Order 

become effective, if the Secretary 

determines that the Order has been 

approved by a majority of the producers 

and importers of mushrooms voting in 

the referendum, which a majority, on 

average, annually produces and imports 

in the United States more than 50 

percent of mushrooms annually 

produced and imported by those voting 

in the referendum. In addition, the 

Department will make every effort to 

conduct the referendum in the most 

expedited and cost effective manner. 

The third comment received opposed 

the program in general and therefore 

was not within the scope of this rule. 

For the proposed amendments to the 

Order to become effective, it must be 

approved by a majority of the eligible 

producers and importers voting in the 

referendum. 

Referendum Order 

It is hereby directed that a referendum 

be conducted among eligible mushroom 

producers and importers to determine 

whether the favor to amend 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 as well as to add language to 

the powers and duties section of the 

Order allowing the Council the power to 

develop and propose good agricultural 

and handling practices and related 

activities for mushrooms. 

The referendum shall be conducted 

from July 6, 2009 through July 17, 2009. 

The referendum agents will mail the 

ballots to be cast in the referendum and 

voting instructions to all known 

mushroom producers and importers 

prior to the first day of the voting 

period. Only mushroom producers and 

importers who either produced or 

imported, on average, over 500,000 

pounds of mushrooms annually during 

the representative period will be eligible 

to vote in the referendum. Mushroom 

producers and importers who received 

an exemption from assessments during 

the entire representative period are 

ineligible to vote. Any eligible 

mushroom producers and importers 

who do not receive a ballot should 

contact the referendum agent no later 

than one week before the end of the 

voting period. Ballots must be received 

by the referendum agents no later than 

the close of business, Eastern daylightstandard time, July 17, 2009, to be 

counted. 

Jeanette Palmer and Sonia Jimenez, 

RPB, FVP, AMS, USDA, Stop 0244, 

Room 0632–S, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0244, are designated as the referendum 

agents of the Department to conduct this 

referendum. The referendum procedures 

7 CFR 1209.300 through 1209.307, 

which were issued pursuant to the Act, 

shall be used to conduct the 

referendum. 

List of Subjects in 7 CFR Part 1209 

Administrative practice and 

procedure, Advertising, Consumer 

information, Marketing agreements, 

Mushroom promotion, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, it is proposed that 7 CFR part 

1209 of the Code of Federal Regulations 

be 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; 7 U.S.C. 

7401. 

2. In § 1209.30, paragraphs (a), (b), (c), 

(d), and (e) are revised to read as 

follows: 

§ 1209.30 Establishment and membership. 

(a) There is hereby established a 

Mushroom Council of not less than four 

or more than nine members. The 

Council shall be composed of producers 

appointed by the Secretary under 

§ 1209.33, except that, as provided in 

paragraph (c) of this section, importers 

shall be appointed by the Secretary to 

the Council under § 1209.33 once 

imports, on average, reach at least 

50,000,000 pounds of mushrooms 

annually. 

(b) For purposes of nominating and 

appointing producers to the Council, the 

United States shall be divided into three 

geographic regions and the number of 

Council members from each region shall 

be as follows: 

(1) Region 1: All other States 

including the District of Columbia and 

the Commonwealth of Puerto Rico 

except for Pennsylvania and 

California—2 Members. 

(2) Region 2: The State of 

Pennsylvania—4 Members. 

(3) Region 3: The State of California— 

2 Members. 

(c) Importers shall be represented by 

a single, separate region, referred to as 

Region 4, consisting of the United States 

when imports, on average, equal or 

exceed 50,000,000 pounds of 

mushrooms annually. 

(d) At least every five years, and not 

more than every three years, the Council 

shall 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, 

and, based on such review, shall 

recommend to the Secretary 

reapportionment of the regions 

established in paragraph (b) of this 

section, or modification of the number 

of members from such regions, as 

determined under the rules established 

in paragraph (e), of this section or both, 

as necessary to best reflect the 

geographic distribution of mushroom 

production volume in the United States 

and representation of imports, if 

applicable. 

(e) Subject to the nine-member 

maximum limitation, the following 

procedure will be used to determine the 

number of members for each region to 

serve on the Council under paragraph 

(d) of this section: 

(1) Each region that produces, on 

average, at least 50,000,000 pounds of 

mushrooms annually shall be entitled to 

one representative on the Council. 

(2) As provided in paragraph (c) of 

this section, importers shall be 

represented by a single, separate region, 

which shall be entitled to one 

representative, if such region imports, 

on average, at least 50,000,000 pounds 

of mushrooms annually. 

(3) If the annual production of a 

region is greater than 110,000,000 

pounds, but less than or equal to 

180,000,000 pounds, the region shall be 

represented by 1 additional member. 

(4) If the annual production of a 

region is greater than 180,000,000 

pounds, but less than or equal to 

260,000,000 pounds, the region shall be 

represented by 2 additional members. 

(5) If the annual production of a 

region is greater than 260,000,000 

pounds, the region shall be represented 

by 3 additional members. 

(6) Should, in the aggregate, regions 

be entitled to levels of representation 

under paragraphs (e)(1), (2), (3), (4) and 

(5) of this section that would exceed the 

nine-member limit on the Council under 

the Act, the seat or seats assigned shall 

be assigned to that region or those 

regions with greater on-average 

production or import volume than the 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Proposed Rules 26989 

1Public Law 110–289, 122 Stat. 2654. 

2See Division A, titled the ‘‘Federal Housing 

Finance Regulatory Reform Act of 2008,’’ Title I, 

Section 1101 of HERA. 

other regions otherwise eligible at that 

increment level. 

* * * * * 

3. In § 1209.38, paragraphs (l) and (m) 

are redesignated as paragraphs (m) and 

(n) respectively and new paragraph (l) is 

added to read as follows: 

§ 1209.38 Powers. 

* * * * * 

(l) To develop and propose to the 

Secretary programs for good agricultural 

and good handling practices and related 

activities for mushrooms. 

* * * * * 

§ 1209.230 [Removed and Reserved] 

4. Section 1209.230 is removed and 

reserved. 

Dated: June 2, 2009. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. E9–13152 Filed 6–4–09; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1230 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

Office of Federal Housing Enterprise 

Oversight 

12 CFR Part 1770 

RIN 2590–AA12 

Executive Compensation 

AGENCIES: Federal Housing Finance 

Agency; Office of Federal Housing 

Enterprise Oversight. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is proposing to issue an 

Executive Compensation regulation. The 

proposed regulation sets forth 

requirements and processes with respect 

to compensation provided to executive 

officers by the Federal National 

Mortgage Association, the Federal Home 

Loan Mortgage Corporation, the Federal 

Home Loan Banks, and the Office of 

Finance, consistent with the safety and 

soundness responsibilities of FHFA 

under the Federal Housing Enterprises 

Financial Safety and Soundness Act of 

1992, as amended by the Housing and 

Economic Recovery Act of 2008. 

DATES: Comments on the Notice of 

Proposed Rulemaking must be received 

on or before August 4, 2009. For 

additional information, see 

SUPPLEMENTARY INFORMATION. 

ADDRESSES: You may submit your 

comments on the proposed regulation, 

identified by regulatory identifier 

number (RIN) 2590–AA12 by any of the 

following methods: 

• U.S. Mail, United Parcel Post, 

Federal Express, or Other Mail Service: 

The mailing address for comments is: 

Alfred M. Pollard, General Counsel, 

Attention: Comments/RIN 2590–AA12, 

Federal Housing Finance Agency, 

Fourth Floor, 1700 G Street, NW., 

Washington, DC 20552. 

• Hand Delivered/Courier: The hand 

delivery address is: Alfred M. Pollard, 

General Counsel, Attention: Comments/ 

RIN 2590–AA12, Federal Housing 

Finance Agency, Fourth Floor, 1700 G 

Street, NW., Washington, DC 20552. The 

package should be logged at the Guard 

Desk, First Floor, on business days 

between 9 a.m. and 5 p.m. 

• E-mail: Comments to Alfred M. 

Pollard, General Counsel, may be sent 

by e-mail at RegComments@FHFA.gov. 

Please include ‘‘RIN 2590–AA12’’ in the 

subject line of the message. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. If 

you submit your comment to the 

Federal eRulemaking Portal, please also 

send it by e-mail to FHFA at 

RegComments@fhfa.gov to ensure 

timely receipt by the agency. Include 

the following information in the subject 

line of your submission: Executive 

Compensation Proposed Rule, RIN 

2590–AA12. 

FOR FURTHER INFORMATION CONTACT: 

Daniel E. Coates, Associate Director Risk 

Analysis and Research, Office of Federal 

Home Loan Bank Regulation, (202) 408– 

2959, Patrick Lawler, Associate Director, 

Office of Policy Analysis and Research, 

Chief Economist, (202) 414–3746, or 

Tina Dion, Associate General Counsel, 

(202) 414–3838 (not toll free numbers), 

Federal Housing Finance Agency, 

Fourth Floor, 1700 G Street, NW., 

Washington, DC 20552. The telephone 

number for the Telecommunications 

Device for the Deaf is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Comments 

FHFA invites comments on all aspects 

of the proposed regulation and will take 

all comments into consideration before 

issuing the final regulation. Copies of all 

comments will be posted without 

change, including any personal 

information you provide, such as your 

name and address, on the FHFA Internet 

Web site at http://www.fhfa.gov. 

In addition, copies of all comments 

received will be available for 

examination by the public on business 

days between the hours of 10 a.m. and 

3 p.m., at the Federal Housing Finance 

Agency, Fourth Floor, 1700 G Street, 

NW., Washington, DC 20552. To make 

an appointment to inspect comments, 

please call the Office of General Counsel 

at (202) 414–3751. 

II. Background 

The Federal Housing Finance Agency 

(FHFA) was created on July 30, 2008, 

when the President signed into law the 

Housing and Economic Recovery Act of 

2008 (HERA).1 HERA created a regulator 

with all of the authorities necessary to 

oversee vital components of our 

country’s secondary mortgage markets— 

the Federal National Mortgage 

Association (Fannie Mae), the Federal 

Home Loan Mortgage Corporation 

(Freddie Mac), and the Federal Home 

Loan Banks (Banks). In addition, this 

law combined the staffs of the Office of 

Federal Housing Enterprise Oversight 

(OFHEO), the Federal Housing Finance 

Board (FHFB), and the GSE mission 

office at the Department of Housing and 

Urban Development (HUD). By pooling 

the expertise of the staffs of OFHEO, 

FHFB, and HUD, Congress strengthened 

the regulatory and supervisory oversight 

of the 14 housing-related GovernmentSponsored Enterprises (GSEs). Such 

regulation of the GSEs will promote a 

stronger, safer U.S. housing finance 

system. 

More specifically, HERA amended the 

Federal Housing Enterprises Financial 

Safety and Soundness Act of 1992 (12 

U.S.C. 4501 et seq.) (Safety and 

Soundness Act or Act) to establish 

FHFA as an independent agency of the 

Federal Government.2 FHFA was 

established to oversee the prudential 

operations of Fannie Mae, Freddie Mac 

(collectively, Enterprises), and the 

Banks (collectively, regulated entities) 

and to ensure that they operate in a safe 

and sound manner including being 

capitalized adequately; foster liquid, 

efficient, competitive and resilient 

national housing finance markets; 

comply with the Act and rules, 

regulation, guidelines and orders issued 

under the Act, and the respective 

authorizing statutes of the regulated 

entities; and carry out their missions 

through activities authorized and 

consistent with the Act and their 

authorizing statutes; and that the 

activities and operations of the 

regulated entities are consistent with the 

public interest. 


erowe on PROD1PC63 with PROPOSALS-1