[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Rules and Regulations]
[Pages 35142-35144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12402]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule that reapportioned the 
membership of the Mushroom Council (Council) to reflect shifts in 
United States mushroom production. The final rule continues in effect 
the realignment of the Mushroom Promotion, Research, and Consumer 
Information Order's (Order) four United States geographic regions, and 
reallocates Council member representation in two of the four United 
States geographic regions (Regions 1 and 4). The Council, which 
administers the 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. These changes to the 
Council are effective for the Secretary of Agriculture's 2008 
appointments.

DATES: Effective Date: July 27, 2007.

FOR FURTHER INFORMATION CONTACT: Daniel Manzoni, Marketing Specialist, 
or Sonia N. Jimenez, Chief, Research and Promotion Branch, Fruit and 
Vegetable Programs, AMS, USDA, Stop 0244-Room 0634-S, 1400 Independence 
Avenue, SW., Washington, DC 20250-0244; telephone (202) 720-9915 or 
(888) 720-9917 (toll free); fax: (202) 205-2800; or e-mail: 
[email protected] or [email protected].

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

[[Page 35143]]

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.

Final 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. The purpose of the RFA 
is to fit regulatory actions to the scale of businesses subject to such 
action so 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. 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 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, exceed 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 recommended 
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 the interim final rule that realigns the four 
United States geographic regions, and reallocates Council member 
representation in two of 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 number of Council member 
representation is reallocated as follows: 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 remains unchanged 
at three members, two members, and one member respectively.
    The overall impact is favorable for producers and importers because 
the producers and importers will 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 (PRA) [44 U.S.C. Chapter 35], the information collection 
requirements under the PRA, 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. This rule does not result in a change to the 
information collection and recordkeeping requirements previously 
approved. 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.

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, exceed 35,000,000 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.
    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

[[Page 35144]]

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 are 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 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 changes 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, provides 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 begin January 1, 2008 will be based on the 
amendments contained in this rule.
    An interim final rule that reapportions the four United States 
geographic regions, and reallocates Council member representation under 
the Order was published in the Federal Register on March 19, 2007 [72 
FR 12701]. The interim final rule provided for a 30-day comment period, 
which ended on April 18, 2007. One comment was received from the 
Council supporting the change.
    After consideration of all relevant material presented, including 
the Board's recommendation and other information, the interim final 
rule as published in the Federal Register (72 FR 12701, March 19, 2007) 
is adopted, as a final rule, without change.

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
Accordingly, the interim final rule amending 7 CFR part 1209, which was 
published in the March 19, 2007, Federal Register at 72 FR 12701 is 
adopted as a final rule without change.

    Dated: June 21, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E7-12402 Filed 6-26-07; 8:45 am]
BILLING CODE 3410-02-P