[Federal Register: July 16, 2002 (Volume 67, Number 136)]
[Rules and Regulations]
[Page 46578-46579]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy02-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1209
[Doc FV-02-706 IFR]
Mushroom Promotion, Research, and Consumer Information Order;
Reallocation of Mushroom Council Membership
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule invites comments on adjusting
representation on the Mushroom Council (Council) to reflect shifts in
production since the original producer regions were established and the
increased volume of imports. These adjustments are required by the
Mushroom Promotion, Research, and Consumer Information Order (Order)
and would result in changing the number of Council members in three of
the four producer regions and adding a fifth region to provide an
importer position on the Council.
DATES: Effective date: July 17, 2002. Comments must be received by
August 15, 2002.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule to the Docket Clerk, Research and Promotion
Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing
Service (AMS), Department of Agriculture (USDA), Stop 0244, Room 2535-
S, 1400 Independence Avenue, SW., Washington, D.C. 20250-0244. Comments
should be submitted in triplicate and will be made available for public
inspection at the above address during regular business hours. Comments
may also be submitted electronically to: malinda.farmer@usda.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register. A copy of this rule may
be found at http://www.ams.usda.gov/fv/rpdocketlist.htm.
FOR FURTHER INFORMATION CONTACT: Deborah S. Simmons, Research and
Promotion Branch, FV, AMS, USDA, Room 2535-S, Stop 0244, Washington, DC
20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free); e-
mail to deborah.simmons@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).
Executive Orders 12866 and 12988
The Office of Management and Budget has waived the review process
required by Executive Order 12866 for this action.
In addition, this rule has been reviewed under E.O. 12988, Civil
Justice Reform. The rule is not intended to have retroactive effect and
will not affect or preempt any other State or Federal law authorizing
promotion or research relating to an agricultural commodity.
The Act allows producers and importers to file a written petition
with USDA if they believe that the Order, any provision of the Order,
or any obligation imposed in connection with the Order, is not
established in accordance with law. In any petition, the person may
request a modification of the Order or an exemption from the Order. The
petitioner will have the opportunity for a hearing on the petition.
Afterwards, an Administrative Law Judge (ALJ) will issue a decision. If
the petitioner disagrees with the ALJ's ruling, the petitioner has 30
days to appeal to the Judicial Officer, who will issue a final decision
on behalf of the Department. If the petitioner disagrees with the
Judicial Officer's decision, the petitioner may file, within 20 days,
an appeal in the U.S. District Court for the district where the
petitioner resides or conducts business.
Regulatory Flexibility Act and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act [5 U.S.C. 601 et
seq.], AMS has examined the economic impact of this rule on small
entities that would be affected by this rule. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
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 $5 million. Under these definitions,
the majority of producers and importers that would be affected by this
rule would be considered small entities. Producers and importers of
less than 500,000 pounds or less of mushrooms for the fresh market are
exempt from the Order.
According to the Council, there are approximately 137 non-exempt
producers and 135 non-exempt importers who are eligible to serve on the
Council.
The overall impact would be favorable for producers and importers
because the producers and importers would have more equitable
representation on the Council.
The addition of one importer position on the Council would mean two
additional nominees. However, this rule would also reduce the number of
producer nominees from 18 to 16. Therefore, there is no increase in
overall burden, but only a change in the type of respondent under the
Order.
As such, with regard to the information collection requirements
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.],
there are no new requirements contained in this rule. The information
collection requirements have been previously approved by the Office of
Management and Budget (OMB) under OMB control number 0505-0001. This
rule, however, does add a new category of respondents--importers. The
estimated burden for importer nominee information is 0.50 hours per
response with two responses once every three years. This is the same
burden that applies to producer nominees. Since producer nominees are
reduced by this rule from 18 to 16, the estimated total annual burden
on respondents associated with nominee background forms is 2.7 hours.
The estimated cost of providing nomination information by eighteen
persons eligible to be nominated to serve as members on the Council
remains at $27.00 or $1.50 per person.
In terms of alternatives to this rule, this action reflects the
volume thresholds and procedures that have been established previously
under the
[[Page 46579]]
provisions of the Order for reallocation of Council membership.
There are no federal rules that duplicate, overlap, or conflict
with this rule.
Background
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 0.21 cents per pound on any
person who produces or imports over 500,000 pounds of mushrooms for the
fresh market annually. The Order specifies that handlers are
responsible for collecting and submitting the producer assessment to
the Council, reporting their handling of mushrooms, and maintaining
records necessary to verify their reporting(s). Importers are
responsible for payment of assessments to the Council on mushrooms
imported into the United States through the U.S. Customs Service.
The Order established a Council of up to nine members. For the
purposes of establishing the Council, the United States was divided
into four producer regions.
In addition, Secs. 1209.30(a) and (c) of the Order state that
importers shall be represented by a single, separate region (referred
to as Region 5) when imports, on average (2 years), equal or exceed 35
million pounds of mushrooms annually. Currently, there is no Region 5.
Section 1209.30(d) of the Order provides that at least every five
years, the Council should 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 would
recommend reapportionment of the regions, or modification of the number
of members from such regions, or both.
Section 1209.30(e) provides that each producer region that
produces, on average, at least 35 million pounds of mushrooms annually
is entitled to one member. Further, each producer region is entitled to
an additional member for each 50 million pounds of annual production,
on average, in excess of the initial 35 million pounds required to
qualify for representation, until the nine seats on the Council are
filled. Under the Order, ``on average'' reflects a rolling average of
production or imports during the last two fiscal years.
The average production of pounds by producer region for the years
2000 and 2001 is 74.4 million pounds for Region 1; 297.2 million pounds
for Region 2; 121.6 million pounds for Region 3, and 107.8 million
pounds for Region 4. The average number of pounds imported for the
years 2000 and 2001 is 39.3 million.
As a result, the Council recommended the following changes in
Council membership:
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Members
Average earned Members Members Total Change in
Region assessed first 35 earned next earned next members per number of
pounds (in million 50 million 50 million region members
millions) pounds pounds pounds
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Region 1.......................... 74.4 1 ........... ........... 1 -1
Region 2.......................... 297.2 1 1 1 3 0
Region 3.......................... 121.6 1 1 ........... 2 -1
Region 4.......................... 107.8 1 1 ........... 2 +1
Region 5.......................... 39.3 1 ........... ........... 1 +1
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Total......................... 640.3 5 3 1 9 0
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Therefore, pursuant to Sec. 1209.30, a new Sec. 1209.230 is added
to the regulations under the Order to change the composition of the
Council. Nominations based upon the changes made in this rule would be
received for the term of office that begins on January 1, 2003.
Pursuant to 5 U.S.C. 553, it is found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and good cause exists for not postponing the effective date of
this rule until 30 days after publication in the Federal Register. This
rule should be in place as soon as possible so that the nomination
process may be conducted taking into account the changes that appear in
this rule. The new term of office begins on January 1, 2003. In
addition and for the same reasons, a 30-day period is provided for
interested persons to comment on this rule.
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, Part 1209, Chapter XI of
Title 7 is 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.
2. A new Sec. 1209.230 is added to read as follows:
Sec. 1209.230 Reallocation of council members.
Pursuant to Sec. 1209.30 of the Order, the regions and their number
of members on the Council shall be as follows:
Region 1: Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas,
Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana,
Nebraska, New York, New Hampshire, North Dakota, Ohio, Rhode Island,
South Dakota, Vermont, Wisconsin, and Wyoming--1 Producer Member.
Region 2: Delaware, Maryland, New Jersey, Pennsylvania, the
District of Columbia, West Virginia, and Virginia--3 Producer Members.
Region 3: Alaska, Arizona, California, Hawaii, Idaho, Nevada,
Oregon, Utah, and Washington--2 Producer Members.
Region 4: Alabama, Arkansas, Florida, Georgia, Louisiana,
Mississippi, New Mexico, North Carolina, Oklahoma, the Commonwealth of
Puerto Rico, South Carolina, Tennessee, and Texas--2 Producer Members.
Region 5:--1 Importer Member.
Dated: July 10, 2002.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-17764 Filed 7-15-02; 8:45 am]
BILLING CODE 3410-02-P
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