Federal Register / Vol. 74, No. 54 / Monday, March 23, 2009 / Rules and Regulations 12053 

Anticipated 2008–09 expenses 

($76,492), minus the difference between 

the 2008 beginning reserve ($62,647) 

and the desired 2009 ending reserve 

($54,311), divided by the total estimated 

2008–09 shipments (1,944,444 9-kilo 

volume-fill containers). This formula 

results in the assessment rate of $0.035 

per 9-kilo volume-fill container or 

equivalent. As mentioned earlier, 

kiwifruit shipments for the year are 

estimated at 1,944,444 9-kilo volume-fill 

containers which should provide 

$68,056 in assessment income. An 

additional $100 in penalty and interest 

income is also anticipated, bringing the 

total projected 2008–09 revenue to 

$68,156. Income generated through this 

rate, plus interest income and reserve 

funds, will provide sufficient funds to 

meet the anticipated expenses of 

$76,492 and should result in a July 2009 

ending reserve of $54,311 which is 

within the maximum reserve of 

approximately one fiscal year’s 

expenses permitted by the order 

(§ 920.42). 

According to NASS, the season 

average grower price for years 2006 and 

2007 were $911 and $950 per ton, 

respectively. These prices provide a 

range within which the 2008–09 season 

average grower price could fall. 

Dividing these average grower prices by 

2,000 pounds per ton provides a price 

per pound range of $0.46 to $0.48. 

Multiplying these per-pound prices by 

19.8 pounds (the weight of a 9-kilo 

volume-fill container) yields a 2008–09 

price range estimate of $9.11 to $9.50 

per 9-kilo volume-fill container of 

assessable kiwifruit. 

To calculate the percentage of grower 

revenue represented by the assessment 

rate, the assessment rate of $0.035 per 

9-kilo volume-fill container is divided 

by the low and high estimates of the 

price range. The estimated assessment 

revenue for the 2008–09 fiscal year as a 

percentage of total grower revenue 

would thus likely range between 0.368 

and 0.384 percent. 

This action continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers and may reduce 

the burden on producers. In addition, 

the Committee’s meeting was widely 

publicized throughout the California 

kiwifruit industry and all interested 

persons were invited to attend the 

meeting and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the October 14, 

2008, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

kiwifruit handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this 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. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 12, 2008 (73 FR 

75537). Copies of that rule were also 

mailed or sent via facsimile to all 

kiwifruit handlers. Finally, the interim 

final rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

February 10, 2009, and no comments 

were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplate

Data.do?template=Template

N&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 920 

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 920—KIWIFRUIT GROWN IN 

CALIFORNIA 

■ Accordingly, the interim final rule 

amending 7 CFR part 920, which was 

published at 73 FR 75537 on December 

12, 2008, is adopted as a final rule 

without change. 

Dated: March 18, 2009. 

Craig Morris, 

Acting Associate Administrator. 

[FR Doc. E9–6249 Filed 3–20–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Docket No. AMS–FV–08–0066; FV08–930– 

2 FIR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Change to Fiscal 

Period 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule changing the fiscal period 

prescribed under the tart cherry 

marketing order (order). The order 

regulates the handling of tart cherries 

grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington and Wisconsin and is 

administered locally by the Cherry 

Industry Administrative Board (Board). 

This rule continues in effect an action 

that changed the fiscal period from July 

1 through June 30 to October 1 through 

September 30. This will improve the 

administration and the fiscal operation 

of the Board. 

DATES: Effective date April 22, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella or Kenneth G. 

Johnson, Marketing Order 

Administration Branch, F&V, AMS, 

USDA, Unit 155, 4700 River Road, 

Riverdale, Maryland 20737, telephone: 

(301) 734–5243; Fax: (301) 734–5275 or 

e-mail at Patricia.Petrella@usda.gov or 

Kenneth.Johnson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491; Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

930 (7 CFR part 930) (order) regulating 

the handling of tart cherries grown in 

the States of Michigan, New York, 


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12054 Federal Register / Vol. 74, No. 54 / Monday, March 23, 2009 / Rules and Regulations 

Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin. The order 

is effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. This rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. This rule will 

not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling. 

This rule continues in effect an action 

that changed the fiscal period from July 

1 through June 30 to October 1 through 

September 30. This action was 

unanimously recommended by the 

Cherry Industry Administrative Board 

(Board) at its June 19, 2008 meeting. 

Section 930.7 of the order currently 

defines fiscal period as the 12-month 

period beginning on July 1 of any year 

and ending on June 30 of the following 

year or such other period as the Board, 

with approval of the Secretary, may 

establish. 

According to the Board, the July 

through June fiscal period is 

inconsistent with needs of the industry, 

the Board’s changed activities, and its 

cash flow. 

The Board’s and industry’s activities 

have changed since the order’s 

inception. Initially, the Board’s 

activities consisted primarily of the 

administrative duties associated with 

the marketing order, and relatively 

moderate expenditures were incurred 

for that purpose. The Board and 

industry’s focus has recently changed to 

include promotional activities, and 

annual expenditures have increased 

significantly. The majority of the 

Board’s expenditures are now used on 

promotional activities. Changing the 

Board’s fiscal period allows the Board to 

better coordinate with its promotion 

activites and to make its fiscal cycle 

consistent with its major program 

expenditures. 

In addition, changing the fiscal period 

brings the Board’s collection of 

assessment revenues into line with 

program expenses. Handler assessments, 

which fund program expenses, are 

collected in October. This changed 

fiscal period thus enables the Board to 

receive its funding at the beginning of 

its fiscal period so the revenue to fund 

program expenses is available when 

needed. The Board believes it can 

increase its operational efficiency by 

making its fiscal period consistent with 

its promotional activities. An October 

through September fiscal period also 

brings revenue collection in line with 

funding needs of the program. 

Therefore, changing the fiscal period 

from July through June to October 

through September will improve the 

administration and fiscal operation of 

the Board. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this final regulatory 

flexibility analysis. 

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. 

Marketing orders issued pursuant to the 

Act, and rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 40 handlers 

of tart cherries who are subject to 

regulation under the tart cherry 

marketing order and approximately 900 

producers of tart cherries in the 

regulated area. Small agricultural 

service firms are defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000, and small 

agricultural producers are defined as 

those having annual receipts of less than 

$750,000. 

A majority of the producers and 

handlers are considered small entities 

under SBA’s standards. There were 37 

handlers operating during the 2007– 

2008 season, the last completed crop 

year. Eight of these handlers, 

representing 20.5 percent of all handlers 

and 69.3 percent of production, 

processed more than 10 million pounds 

of cherries. Six handlers, representing 

15.4 percent of all handlers and 16.9 

percent of production, processed more 

than 5 million pounds and less than 10 

million pounds of cherries. Seven 

handlers, representing 17.9 percent of 

all handlers and 9.6 percent of 

production, processed between 2.1 and 

5 million pounds of cherries. The 16 

remaining handlers, representing 43.2 

percent of all handlers and 4.1 percent 

of production, processed less than 2 

million pounds of cherries. Handlers 

accounting for 10 million pounds or 

more cherries would be classified as 

large businesses. Thus, a majority of tart 

cherry handlers (79.5 percent by 

number) could be classified as small 

entities. 

During the 3-year period 2005–2007, 

production of tart cherries averaged 259 

million pounds. Dividing the total 

production by the average number of 

growers, the average grower produces 

about 386,000 pounds of tart cherries 

annually. With grower returns of about 

25 cents per pound, average annual 

revenues would be $96,497. At 25 cents 

per pound, a grower would have to 

produce 3 million pounds of tart 

cherries to reach the $750,000 receipt 

threshold to be classified as a large 

entity using the SBA definition for 

agricultural producers. According to 

Cherry Industry Administrative Board 

data, not more than 9 growers (1 percent 

of the average number of growers) 

produced 3 million pounds or more of 

tart cherries during the 2005–2007 crop 

years, and those growers would be 

classified as large. The remaining 99 

percent of growers would be classified 

as small entities. 

This rule continues in effect an action 

that changed the fiscal period from July 

1 through June 30 to October 1 through 

September 30. This action is 

administrative in nature and will have 

little impact on producers or handlers. 

It will allow the Board to increase its 

operational efficiency by making its 

fiscal period consistent with its 

promotional activities. It will also bring 

revenue collection in line with funding 

needs of the program. Continuing in 

effect the change to the fiscal period 

from July through June to October 

through September will improve the 

administration and fiscal operation of 

the Board. 

One alternative to this action would 

be to change the fiscal period back to 

July through June. However, this would 

not improve program administration 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 54 / Monday, March 23, 2009 / Rules and Regulations 12055 

inconsistencies in the Board’s fiscal 

operations. 

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. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

tart cherry handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this rule. 

Further, the Board’s meeting was 

widely publicized and all Board 

members and alternate Board members, 

representing both large and small 

entities, were invited to attend the 

meeting and participate in Board 

deliberations. The Board itself is 

composed of 19 members, of which 18 

members are growers and handlers and 

one represents the public. Also, the 

Board has a number of appointed 

committees to review certain issues and 

make recommendations. 

An interim final concerning this 

action was published in the Federal 

Register on December 15, 2008 (73 FR 

75927). Copies of the rule were mailed 

by the Board’s staff to all Board 

members, producers, handlers, and 

other interested persons. In addition, 

the rule was made available through the 

Internet by USDA and the Office of the 

Federal Register. That rule provided a 

60-day comment period which ended 

February 13, 2009. No comments were 

received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at the following Web site: 

http://www.ams.usda.gov/AMSv1.0/ 

ams.fetch

TemplateData.do?template=Template

N&page=MarketingOrders

SmallBusinessGuide. Any questions 

about the compliance guide should be 

sent to Jay Guerber at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

After consideration of all relevant 

material presented, including the 

Board’s recommendation, and other 

information, it is hereby found that this 

rule as hereinafter set forth, will tend to 

effectuate the declared policy of the Act. 

List of Subjects in 7 CFR Part 930 

Tart cherries, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 930 is amended as 

follows: 

PART 930—TART CHERRIES GROWN 

IN THE STATES OF MICHIGAN, NEW 

YORK, PENNSYLVANIA, OREGON, 

UTAH, WASHINGTON, AND 

WISCONSIN 

■ Accordingly, the interim final rule 

amending 7 CFR 930, which was 

published at 73 FR 75927 on December 

15, 2008, is adopted as a final rule 

without change. 

Dated: March 18, 2009. 

Craig Morris, 

Acting Associate Administrator. 

[FR Doc. E9–6250 Filed 3–20–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 77 

[Docket No. APHIS–2008–0124] 

Tuberculosis in Cattle and Bison; State 

and Zone Designations; New Mexico 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the bovine 

tuberculosis regulations to establish two 

separate zones with different 

tuberculosis risk classifications for the 

State of New Mexico. The entire State of 

New Mexico has been classified as 

modified accredited advanced; however, 

all its affected herds are located in a 

small area along the State’s eastern 

border. We have determined that New 

Mexico meets our requirements for zone 

classification. Therefore, we are 

removing New Mexico from the list of 

modified accredited advanced States, 

adding an area consisting of Curry and 

Roosevelt Counties, NM, to the list of 

modified accredited advanced zones, 

and adding the remainder of the State to 

the list of accredited-free zones. This 

action relieves restrictions on the 

interstate movement of cattle and bison 

from these areas of New Mexico outside 

of the modified accredited advanced 

zone in two counties. 

DATES: This interim rule is effective 

March 23, 2009. We will consider all 

comments that we receive on or before 

May 22, 2009. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=APHIS2008-0124 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• Postal Mail/Commercial Delivery: 

Please send two copies of your comment 

to Docket No. APHIS–2008–0124, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A–03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737–1238. Please state that your 

comment refers to Docket No. APHIS– 

2008–0124. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue, SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

FOR FURTHER INFORMATION CONTACT: Dr. 

C. William Hench, Senior Staff 

Veterinarian, National Tuberculosis 

Eradication Program, Veterinary 

Services, APHIS, 2150 Centre Ave., 

Bldg. B, MSC 3E20, Ft. Collins, CO 

80526; (970) 494–7378. 

SUPPLEMENTARY INFORMATION: 

Background 

Bovine tuberculosis is a contagious 

and infectious granulomatous disease 

caused by the bacterium Mycobacterium 

bovis. Although commonly defined as a 

chronic debilitating disease, bovine 

tuberculosis can occasionally assume an 

acute, rapidly progressive course. While 

any body tissue can be affected, lesions 

are most frequently observed in the 

lymph nodes, lungs, intestines, liver, 

spleen, pleura, and peritoneum. 

Although cattle are considered to be the 

true hosts of M. bovis, the disease has 

been reported in several other species of 

both domestic and nondomestic 

animals, as well as in humans. 

At the beginning of the past century, 

tuberculosis caused more losses of 

livestock than all other livestock 

diseases combined. This prompted the 

establishment in the United States of the 

National Cooperative State/Federal 


dwashington3 on PROD1PC60 with RULES