[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Proposed Rules]
[Pages 3114-3116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01727]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 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. 84, No. 28 / Monday, February 11, 2019 / 
Proposed Rules  

[[Page 3114]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1209

[Document Number AMS-SC-18-0009]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposal invites comments on reallocating the membership 
of the Mushroom Council (Council) under the Agricultural Marketing 
Service's (AMS) regulations regarding a national research and promotion 
program for mushrooms. This action was recommended by the Council after 
a review of the geographic distribution of the volume of mushroom 
production throughout the United States and the volume of imports. The 
number of Council members would be revised in two of the four 
geographic regions under the program. This action is necessary to 
provide for equitable representation of producers and importers on the 
Council.

DATES: Comments must be received by March 13, 2019.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments may be submitted on the internet at: 
http://www.regulations.gov or to the Promotion and Economics Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Room 
1406-S, Stop 0244, Washington, DC 20250-0244; facsimile: (202) 205-
2800. All comments should reference the document number and the date 
and page number of this issue of the Federal Register and will be made 
available for public inspection, including name and address, if 
provided, in the above office during regular business hours or it can 
be viewed at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stacy Jones King, Marketing 
Specialist, Promotion and Economics Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW, Room 1406-S, Stop 0244, 
Washington, DC 20250-0244; telephone: (202) 720-9915; facsimile (202) 
205-2800; or electronic mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal affecting 7 CFR part 1209 is 
authorized under the Mushroom Promotion, Research, and Consumer 
Information Act of 1990 (Act) (7 U.S.C. 6101-6112).

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules and promoting flexibility. 
This action falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) exempted from Executive Order 
12866 review. Additionally, because this rule does not meet the 
definition of a significant regulatory action it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).

Executive Order 13175

    This action has been reviewed in accordance with the requirements 
of Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments. The review reveals that this regulation would not 
have substantial and direct effects on Tribal governments and would not 
have significant Tribal implications.

Executive Order 12988

    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. Section 
1930 of the Act (7 U.S.C. 6109) provides that it shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to mushrooms.
    Under section 1927 of the Act (7 U.S.C. 6106), a person subject to 
an order issued under the Act may file a written petition with USDA 
stating that an order, any provision of the order, or any obligation 
imposed in connection with the order, is not established in accordance 
with the law, and request a modification of the order or an exemption 
from the order. Any petition filed challenging an order, any provision 
of an order, or any obligation imposed in connection with the order, 
shall be filed within two years after the effective date of an order, 
provision, or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter, USDA will issue a ruling on the petition. The Act provides 
that the district court of the United States for any district in which 
the petitioner resides or conducts 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 USDA's final ruling.

Background

    This proposal invites comments on reallocating the membership of 
the Council established under the Mushroom Promotion, Research, and 
Consumer Information Order (Order). The Order is administered by the 
Council with oversight by USDA. This action was recommended by the 
Council after a review of the geographic distribution of the volume of 
mushroom production throughout the United States and the volume of 
imports. The number of Council members would be revised in two of the 
four regions under the program. This action is necessary to provide for 
equitable representation of producers and importers on the Council.
    Section 1209.30(a) of the Order specifies that the Council shall 
consist of not less than four or more than nine members who are 
mushroom producers and importers. Pursuant to Sec.  1209.30(b), for 
purposes of nominating and appointing producers to the Council, the 
United States is divided into three geographic regions and the number 
of Council members from each region are currently as follows: (1) 
Region 1: All

[[Page 3115]]

other States including the District of Columbia and the Commonwealth of 
Puerto Rico except for Pennsylvania and California--two members; (2) 
Region 2: Pennsylvania--four members; and (3) Region 3: California--two 
members. Pursuant to Sec.  1209.30(c), importers are represented by a 
single, separate region, referred to as Region 4, when imports, on 
average, equal or exceed 50,000,000 pounds of mushrooms annually.
    Section 1209.30(d) prescribes that, at least every five years, and 
not more than every three years, the Council must 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. The Council must 
recommend to the Secretary reapportionment of the regions and/or 
modification of the number of members from such regions as necessary to 
best reflect the geographic distribution of mushroom production volume 
in the United States and representation of imports, if applicable.
    Section 1209.30(e) prescribes a procedure to be used to determine 
the number of members for each region to serve on the Council, subject 
to the nine-member maximum limitation. Each region that produces, on 
average, at least 50,000,000 pounds of mushrooms annually is entitled 
to one representative on the Council. Importers are represented by a 
single, separate region, which is entitled to one representative, if 
the region imports, on average, at least 50,000,000 pounds of mushrooms 
annually. 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 must be represented by one additional member. 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 must be represented by 
two additional members. If the annual production of a region is greater 
than 260,000,000 pounds, the region must be represented by three 
additional members. Finally, if in the aggregate, regions are entitled 
to levels of representation that would exceed the nine-member limit on 
the Council, 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.\1\
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    \1\ 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 (7 CFR part 1209.2).
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    The Council met in February 2018 and reviewed the geographic 
distribution of mushroom production volume throughout the United States 
and import volume to assess whether reapportionment of the current 
regions or modification of the number of members from such regions, or 
both were warranted. Table 1 below is based on Council assessment data 
for the preceding four years (2014 through 2017).

                                          Table 1--Analysis of Council Representation Based on Assessment Data
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                                              Current                                       In millions
                 Region                       council    --------------------------------------------------------------------------------   New council
                                          representation    2014 pounds     2015 pounds     2016 pounds     2017 pounds   4-year average  representation
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1 (All other States)....................               2           202.7             205           203.8             196           201.9               3
2 (PA)..................................               4           480.6             488           477.8           502.6           487.3               4
3 (CA)..................................               2           109.5           102.3           106.7            91.2           102.4               1
4 (Imports).............................               1            98.8           110.1           119.3             132           115.1               1
                                         ---------------------------------------------------------------------------------------------------------------
                                                       9  ..............  ..............  ..............  ..............  ..............               9
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    Table 2 below provides a similar analysis based on U.S. production 
data from USDA's National Agricultural Statistics Service (NASS) and 
import data from USDA's Global Agricultural Trade System (GATS).\2\
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    \2\ NASS United States Department of Agriculture (USDA) (2018) 
Quick Stats. U.S. Department of Agriculture, National Agricultural 
Statistics Service, Washington DC. https://quickstats.nass.usda.gov/.
    GATS United States Department of Agriculture (USDA) (2018) 
Global Agricultural Trade System. U.S. Department of Agriculture, 
Foreign Agricultural Service, Washington DC. https://apps.fas.usda.gov/gats/.

                                         Table 2--Analysis of Council Representation Based on NASS and GATS Data
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                                              Current                                       In millions
                 Region                       council    --------------------------------------------------------------------------------   New council
                                          representation    2014 pounds     2015 pounds     2016 pounds     2017 pounds   4-year average  representation
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 (All other States)....................               2           208.8           217.5           221.6           223.9           218.0               3
2 (PA)..................................               4           571.7           584.0           587.4           577.6           580.2               4
3 (CA)..................................               2           101.5           105.6           109.9           101.7           104.7               1
4 (Imports).............................               1  ..............  ..............  ..............  ..............  ..............               1
                                         ---------------------------------------------------------------------------------------------------------------
                                                       9  ..............  ..............  ..............  ..............  ..............               9
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Council Recommendation

    Based on its analysis, the Council unanimously recommended 
increasing the number of members in Region 1 by one and decreasing the 
number of members in Region 3 by one. This action is necessary to 
provide for equitable representation of producers and importers on the 
Council. No changes are necessary to the number of members in Regions 2 
and 4 or to the make-up of any of the regions. Section 1209.230 which 
is currently reserved, would be added accordingly.

[[Page 3116]]

Initial Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), AMS is required to examine the impact of the proposed rule on 
small entities. Accordingly, AMS has considered the economic impact of 
this action on such entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
disproportionately burdened. The Small Business Administration (SBA) 
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 those having annual receipts of no more 
than $7.5 million.
    It is estimated that there are about 120 mushroom producers in the 
United States and about 20 importers eligible to serve on the Council. 
The majority of these producers and importers would be considered small 
entities as defined by the SBA. Persons who produce or import organic 
mushrooms or who produce or import 500,000 pounds or less on average of 
mushrooms annually for the fresh market are exempt from the 
requirements of the Order.
    This proposal invites comments on reallocating the membership of 
the Council under the Order. The Order is administered by the Council 
with oversight by USDA. This action was recommended by the Council 
after a review of the geographic distribution of the volume of mushroom 
production throughout the United States and the volume of imports. The 
number of Council members would be revised in two of the four regions 
under the program. This action is necessary to provide for equitable 
representation of producers and importers on the Council. Section 
1209.230 which is currently reserved, would be added accordingly. 
Authority for this action is provided in section 1209.30(d) of the 
Order and section 6104 of the Act (7 U.S.C. 6104).
    Regarding the economic impact of this proposed rule on affected 
entities, revising the number of members in Regions 1 and 3 would 
impose no additional costs on industry members. Eligible producers and 
importers interested in serving on the Council would have to complete a 
background questionnaire. Those requirements are addressed in the 
section below titled Reporting and Recordkeeping Requirements. The 
changes are necessary to provide for the equitable representation of 
producers and importers on the Council.
    Regarding alternatives, one option to the proposed action would be 
to maintain the status quo and not revise the number of Council members 
representing Regions 1 and 3. However, the Council's analysis of the 
assessment data and NASS and GATS data support the proposed changes. 
USDA concludes that the changes are necessary and appropriate.

Reporting and Recordkeeping Requirements

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the background form, which represents the information 
collection and recordkeeping requirements that are imposed under the 
program, have been approved previously under OMB number 0581-0093. The 
mushroom Order requires that two nominees be submitted for each vacant 
position. With regard to information collection requirements, producers 
and importers interested in serving on the Council must submit 
background forms (Form AD-755) to USDA to verify their eligibility for 
appointment to the Council. However, serving on the Council is 
voluntary, and the burden of submitting the background form would be 
offset by the benefits of serving on the Council.
    As with all Federal promotion programs, reports and forms are 
periodically reviewed to reduce information collection requirements and 
duplication by industry and public sector agencies. USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this proposed rule. AMS is committed to complying with 
the E-Government Act, to promote the use of the internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.
    Regarding outreach efforts, this action was discussed by the 
Council at its meeting held in February 2018 where the Council 
unanimously made its recommendation. All of the Council's meetings are 
open to the public and interested persons are invited to participate 
and express their views.
    AMS has performed this initial RFA regarding the impact of this 
proposed action on small entities and invites comments concerning 
potential effects of this action.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments received in response to 
this proposed 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, 7 CFR part 1209 is 
proposed to be 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 and 7 U.S.C. 7401.

0
2. Section 1209.230 is added to read as follows:


Sec.  1209.230  Reallocation of Council members.

    Pursuant to Sec.  1209.30 of the Order, the number of members on 
the Council 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--3 Members.
    (2) Region 2: The State of Pennsylvania--4 Members.
    (3) Region 3: The State of California--1 Member.
    (4) Region 4: Importers--1 Member.

    Dated: February 5, 2019.
Bruce Summers,
Administrator.
[FR Doc. 2019-01727 Filed 2-8-19; 8:45 am]
 BILLING CODE 3410-02-P