[Federal Register: June 5, 2009 (Volume 74, Number 107)]
[Proposed Rules]
[Page 26984-26989]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn09-16]
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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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[[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.
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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. 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:
Jeanette.Palmer@ams.usda.gov.
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