[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Rules and Regulations]
[Pages 17059-17062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08177]


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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: Final rule.

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SUMMARY: This rule reallocates the membership of the Mushroom Council 
(Council) under the Agricultural Marketing Service's (AMS) regulations 
regarding a national research and promotion program for mushrooms. The 
Council administers the regulations with oversight by the U.S. 
Department of Agriculture (USDA). This rule 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. This rule revises the number of Council members 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: Effective Date: May 24, 2019.

FOR FURTHER INFORMATION CONTACT: Marlene Betts, 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 rule 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 rulemaking has been determined to be not significant for purposes 
of Executive Order 13563. 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 rule 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 rule reallocates the membership of the Council established 
under the Mushroom Promotion, Research, and Consumer Information Order 
(Order). The Order (7 CFR part 1209) 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. This 
rule revises the number of Council members representing two of the four 
regions under the program. This action is necessary to provide for 
equitable representation of producers and importers on the Council.

[[Page 17060]]

    Section 1209.30(a) 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 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.
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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
                 Region                       council       2014 pounds     2015 pounds     2016 pounds     2017 pounds       4-year        New council
                                          representation                                                                      average     representation
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                                                                            In millions
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1 (All other States)....................               2           202.7             205           203.8             196           201.9               3
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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
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                                                       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
                 Region                       council       2014 pounds     2015 pounds     2016 pounds     2017 pounds   4-year average    New council
                                          representation                                                                                  representation
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                                                                                                            In millions
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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            80.6            89.5           102.0           111.3            98.5               1
                                         -----------------
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[[Page 17061]]

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, will be added accordingly.

Final 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 rule reallocates 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 rule revises the 
number of Council members 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, is being added accordingly. Authority for this 
action is provided in Sec.  1209.30(d) of the Order and section 6104 of 
the Act (7 U.S.C. 6104).
    Regarding the economic impact of this rule on affected entities, 
revising the number of members in Regions 1 and 3 will impose no 
additional costs on industry members. Eligible producers and importers 
interested in serving on the Council will 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 action regarding revising 
the number of Council members in two of four regions 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 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 a 
background form (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.
    A proposed rule concerning this action was published in the Federal 
Register on February 11, 2019 (84 FR 3114). A 30-day comment period 
ending March 13, 2019, was provided to allow interested persons to 
submit comments.

Analysis of Comment

    Eight comments were received in response to the proposed rule. Of 
those eight comments, four comments supported the reallocation of 
Council members in two regions to more accurately represent the volume 
of production, one comment was opposed, and three comments were outside 
the scope of the rulemaking.
    The comments that supported the proposed changes agreed with 
reallocating the number of members in two regions in order to more 
accurately represent the volume of production. Specifically, the 
comments supported increasing the number of member seats by one in 
Region 1 and decreasing the number of member seats by one in Region 3. 
In addition, the supporters recommended that the length of term for the 
new member in Region 1 be for a two-year term instead of the standard 
three-year term for the purpose of staggering the terms of the members 
representing Region 1. According to section 1925 of the Act (7 U.S.C. 
6104) and Sec.  1209.34 of the Order, members of the Council shall 
serve for terms of three years, except for members appointed to the 
initial Council. Since this is not the ``initial'' Council, members of 
the Council shall serve terms of three years, and therefore, the 
recommendation for a two-year term is not accepted.
    One comment disagreed with the Council membership being determined 
based on geographic production volume. The commenter wants more 
diversification by type of mushroom growing method and suggests 
consideration of seats for growers specializing in farmers market 
distribution and those using sustainable agricultural practices. 
Section 1925 of the Act (7 U.S.C. 6104) and Sec.  1209.30 of the Order 
state that the establishment and membership of the Council shall 
consider the geographical distribution of mushroom production 
throughout the U.S. and the comparative volume of mushrooms imported 
into the U.S. In addition, the Council has a diverse membership and has 
a policy to continuously pursue diverse representation in size of 
operations, experience of members, methods of production, and other 
factors to bring individuals with different perspectives to the 
Council. Further, the Council's

[[Page 17062]]

meetings are open to the public and interested persons are invited to 
participate and express their views.
    No changes have been made to the proposed rule based on the 
comments received.
    After consideration of all relevant matters presented, including 
the information and recommendations submitted by the Council, the 
comments received, and other available information, it is hereby found 
that this rule, as hereinafter set forth, is consistent with and will 
effectuate the purposes of the Act.

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 
hereby 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. Revise the heading for subpart B to read as follows:

Subpart B--Administrative Requirements

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


Sec.  1209.230  Reallocation of Council members.

    Pursuant to Sec.  1209.30, the number of members on the Council 
shall be as follows:
    (a) Region 1: All other States including the District of Columbia 
and the Commonwealth of Puerto Rico except for Pennsylvania and 
California--3 Members.
    (b) Region 2: The State of Pennsylvania--4 Members.
    (c) Region 3: The State of California--1 Member.
    (d) Region 4: Importers--1 Member.

    Dated: April 18, 2019.
Bruce Summers,
Administrator.
[FR Doc. 2019-08177 Filed 4-23-19; 8:45 am]
BILLING CODE 3410-02-P