[Federal Register Volume 74, Number 65 (Tuesday, April 7, 2009)]
[Proposed Rules]
[Pages 15677-15681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7476]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

[Docket No.: AMS-FV-08-0047; FV-08-702]
RIN 0581-AC82


Amendments to Mushroom Promotion, Research, and Consumer 
Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule with request for comments.

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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. This rule proposes changes to the 
Order based on amendments to the Food Conservation and Energy Act.

DATES: Comments must be received by May 7, 2009.

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, 1400 
Independence Avenue, SW., Stop 0244, Room 0632-S, Washington, DC 20250-
0244; fax: (202) 205-2800. All comments should reference the docket 
number and the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the above 
office during regular business hours or can be viewed at http://www.regulations.gov.
    All comments received will be posted without change, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Kimberly Coy, Marketing Specialist, 
Research and Promotion Branch, Fruit and Vegetable Programs, 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 e-mail: [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 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 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 which 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, exceed 35,000,000 pounds of 
mushrooms annually. The

[[Page 15678]]

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 long-range 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 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 on-average 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

[[Page 15679]]

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, and we invite comments concerning the effects of this 
amendment on small businesses.

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.
    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 1902.12 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 1208.15; and (2)

[[Page 15680]]

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 on-average 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. Specific dates for 
the referendum will be announced at a later date.
    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 is provided to allow interested persons 
to respond to this proposal. A thirty-day comment period is deemed 
appropriate in order to conform the provisions of the Order to the 2008 
Farm Bill amendments as soon as possible. All written comments received 
in response to this rule by the date specified would be considered 
prior to finalizing this action.

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 Sec.  1209.30 paragraphs (a) through (e) are revised to read 
as follows:


Sec.  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 Sec.  1209.33, except that, 
as provided in paragraph (c) of this section, importers shall be 
appointed by the Secretary to the Council under Sec.  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

[[Page 15681]]

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 other regions otherwise eligible at that increment level.
    (f) * * *
    (g) * * *
    3. In Sec.  1209.38, redesignate paragraphs (l) and (m) as 
paragraphs (m) and (n), respectively, and add a new paragraph (l) to 
read as follows:


Sec.  1209.38  Powers.

* * * * *
    (l) To develop and propose to the Secretary programs for good 
agricultural and good handling practices and related activities for 
mushrooms.
* * * * *


Sec.  1209.230  [Removed]

    4. Section 1209.230 is removed.

    Dated: March 30, 2009.
Robert C. Keeney,
Acting Associate Administrator.
 [FR Doc. E9-7476 Filed 4-6-09; 8:45 am]
BILLING CODE 3410-02-P