[Federal Register Volume 67, Number 136 (Tuesday, July 16, 2002)]
[Rules and Regulations]
[Pages 46578-46579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17764]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

[Doc  FV-02-706 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 interim final rule invites comments on adjusting 
representation on the Mushroom Council (Council) to reflect shifts in 
production since the original producer regions were established and the 
increased volume of imports. These adjustments are required by the 
Mushroom Promotion, Research, and Consumer Information Order (Order) 
and would result in changing the number of Council members in three of 
the four producer regions and adding a fifth region to provide an 
importer position on the Council.

DATES: Effective date: July 17, 2002. Comments must be received by 
August 15, 2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule to the Docket Clerk, Research and Promotion 
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing 
Service (AMS), Department of Agriculture (USDA), Stop 0244, Room 2535-
S, 1400 Independence Avenue, SW., Washington, D.C. 20250-0244. Comments 
should be submitted in triplicate and will be made available for public 
inspection at the above address during regular business hours. Comments 
may also be submitted electronically to: [email protected]. All 
comments should reference the docket number and the date and page 
number of this issue of the Federal Register. A copy of this rule may 
be found at http://www.ams.usda.gov/fv/rpdocketlist.htm.

FOR FURTHER INFORMATION CONTACT: Deborah S. Simmons, Research and 
Promotion Branch, FV, AMS, USDA, Room 2535-S, Stop 0244, Washington, DC 
20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free); e-
mail to [email protected].

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).

Executive Orders 12866 and 12988

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.
    In addition, this rule has been reviewed under E.O. 12988, Civil 
Justice Reform. The rule is not intended to have 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 allows producers and importers to file a written petition 
with USDA 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 will have the opportunity for a hearing on the petition. 
Afterwards, an Administrative Law Judge (ALJ) will issue a decision. If 
the petitioner disagrees with the ALJ's ruling, the petitioner has 30 
days to appeal to the Judicial Officer, who will issue a final decision 
on behalf of the Department. If the petitioner disagrees with the 
Judicial Officer's decision, the petitioner may file, within 20 days, 
an appeal in the U.S. District Court for the district where the 
petitioner resides or conducts business.

Regulatory Flexibility Act and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act [5 U.S.C. 601 et 
seq.], AMS has examined the economic impact of this rule on small 
entities that would be affected by this rule. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    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 $5 million. Under these definitions, 
the majority of producers and importers that would be affected by this 
rule would be considered small entities. Producers and importers of 
less than 500,000 pounds or less of mushrooms for the fresh market are 
exempt from the Order.
    According to the Council, there are approximately 137 non-exempt 
producers and 135 non-exempt importers who are eligible to serve on the 
Council.
    The overall impact would be favorable for producers and importers 
because the producers and importers would have more equitable 
representation on the Council.
    The addition of one importer position on the Council would mean two 
additional nominees. However, this rule would also reduce the number of 
producer nominees from 18 to 16. Therefore, there is no increase in 
overall burden, but only a change in the type of respondent under the 
Order.
    As such, with regard to 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 0505-0001. This 
rule, however, does add a new category of respondents--importers. The 
estimated burden for importer nominee information is 0.50 hours per 
response with two responses once every three years. This is the same 
burden that applies to producer nominees. Since producer nominees are 
reduced by this rule from 18 to 16, the estimated total annual burden 
on respondents associated with nominee background forms is 2.7 hours. 
The estimated cost of providing nomination information by eighteen 
persons eligible to be nominated to serve as members on the Council 
remains at $27.00 or $1.50 per person.
    In terms of alternatives to this rule, this action reflects the 
volume thresholds and procedures that have been established previously 
under the

[[Page 46579]]

provisions of the Order for reallocation of Council membership.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.

Background

    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 0.21 cents per pound on any 
person who produces or imports over 500,000 pounds of mushrooms for the 
fresh market annually. The Order specifies that handlers are 
responsible for collecting and submitting the producer assessment to 
the Council, reporting their handling of mushrooms, and maintaining 
records necessary to verify their reporting(s). Importers are 
responsible for payment of assessments to the Council on mushrooms 
imported into the United States through the U.S. Customs Service.
    The Order established a Council of up to nine members. For the 
purposes of establishing the Council, the United States was divided 
into four producer regions.
    In addition, Secs. 1209.30(a) and (c) of the Order state that 
importers shall be represented by a single, separate region (referred 
to as Region 5) when imports, on average (2 years), equal or exceed 35 
million pounds of mushrooms annually. Currently, there is no Region 5.
    Section 1209.30(d) 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 would 
recommend reapportionment of the regions, or modification of the number 
of members from such regions, or both.
    Section 1209.30(e) 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. Under the Order, ``on average'' reflects a rolling average of 
production or imports during the last two fiscal years.
    The average production of pounds by producer region for the years 
2000 and 2001 is 74.4 million pounds for Region 1; 297.2 million pounds 
for Region 2; 121.6 million pounds for Region 3, and 107.8 million 
pounds for Region 4. The average number of pounds imported for the 
years 2000 and 2001 is 39.3 million.
    As a result, the Council recommended the following changes in 
Council membership:

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                                                   Members
                                      Average       earned      Members      Members       Total      Change in
              Region                  assessed     first 35   earned next  earned next  members per   number of
                                    pounds  (in    million     50 million   50 million     region      members
                                     millions)      pounds       pounds       pounds
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Region 1..........................         74.4            1  ...........  ...........            1           -1
Region 2..........................        297.2            1            1            1            3            0
Region 3..........................        121.6            1            1  ...........            2           -1
Region 4..........................        107.8            1            1  ...........            2           +1
Region 5..........................         39.3            1  ...........  ...........            1           +1
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    Total.........................        640.3            5            3            1            9            0
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    Therefore, pursuant to Sec. 1209.30, a new Sec. 1209.230 is added 
to the regulations under the Order to change the composition of the 
Council. Nominations based upon the changes made in this rule would be 
received for the term of office that begins on January 1, 2003.
    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 in place as soon as possible so that the nomination 
process may be conducted taking into account the changes that appear in 
this rule. The new term of office begins on January 1, 2003. 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 
recordkeeping requirements.

    For the reasons set forth in the preamble, Part 1209, Chapter XI of 
Title 7 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. A new Sec. 1209.230 is added 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 members on the Council shall be as follows:
    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.
    Region 5:--1 Importer Member.

    Dated: July 10, 2002.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-17764 Filed 7-15-02; 8:45 am]
BILLING CODE 3410-02-P