[Federal Register Volume 74, Number 107 (Friday, June 5, 2009)]
[Proposed Rules]
[Pages 26984-26989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13152]


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

[[Page 26984]]



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 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].
    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

[[Page 26985]]

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 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

[[Page 26986]]

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 
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.

[[Page 26987]]

    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 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. 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 daylight-standard 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

[[Page 26988]]

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 daylight-standard 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 Sec.  1209.30, paragraphs (a), (b), (c), (d), and (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 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

[[Page 26989]]

other regions otherwise eligible at that increment level.
* * * * *
    3. In Sec.  1209.38, paragraphs (l) and (m) are redesignated as 
paragraphs (m) and (n) respectively and new paragraph (l) is added 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 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