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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

52171 

Vol. 73, No. 175 

Tuesday, September 9, 2008 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Docket No. AMS–FV–08–0048; FV08–948– 

2 FR] 

Irish Potatoes Grown in Colorado; 

Reinstatement of the Continuing 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule reinstates the 

continuing assessment rate established 

for the Area No. 3 Colorado Potato 

Administrative Committee (Committee) 

for the 2008–2009 and subsequent fiscal 

periods at $0.02 per hundredweight of 

potatoes handled. The Committee 

locally administers the marketing order 

regulating the handling of potatoes 

grown in northern Colorado. The 

continuing assessment rate was 

suspended for the 2006–2007 and 

subsequent fiscal periods to bring the 

monetary reserve within the program 

limit of two fiscal periods’ operating 

expenses. Assessments upon potato 

handlers are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period began 

on July 1 and ends June 30. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: September 10, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Teresa Hutchinson or Gary Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or e-mail: 

Teresa.Hutchinson@usda.gov or 

GaryD.Olson@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 Agreement 

No. 97 and Order No. 948, both as 

amended (7 CFR part 948), regulating 

the handling of potatoes grown in 

Colorado, hereinafter referred to as the 

‘‘order.’’ 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.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, Colorado potato handlers are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable potatoes 

beginning July 1, 2008, and continue 

until amended, suspended, or 

terminated. 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. Such 

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 reinstates § 948.215 of the 

order’s rules and regulations and 

establishes a continuing assessment rate 

for the Committee for the 2008–2009 

and subsequent fiscal periods at $0.02 

per hundredweight of potatoes handled. 

The Colorado potato marketing order 

provides authority for the Committee, 

with the approval of USDA, to formulate 

an annual budget of expenses and 

collect assessments from handlers to 

administer the program. The members 

of the Committee are producers and 

handlers of Colorado potatoes in Area 

No. 3. They are familiar with the 

Committee’s needs and with the costs 

for goods and services in their local area 

and are thus in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed in a public meeting. 

Thus, all directly affected persons have 

an opportunity to participate and 

provide input. 

For the 2006–2007 and subsequent 

fiscal periods, the Committee 

recommended, and USDA approved, a 

suspension of the continuing 

assessment rate that would remain 

suspended until reinstated by USDA 

upon recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on May 8, 2008, 

and unanimously recommended 2008– 

2009 expenditures of $19,497 and an 

assessment rate of $0.02 per 

hundredweight of potatoes. In 

comparison, last year’s budgeted 

expenditures were $18,697. For the 

2006–2007 fiscal period, the Committee 

recommended suspending the 

continuing assessment rate to bring the 

monetary reserve within program limits 

of approximately two fiscal periods’ 

operating expenses (§ 948.78). At that 

time, the reserve fund contained about 

$49,237. The Committee has been 

operating for the last two years by 

drawing income from its reserve. With 

a suspended assessment rate and a 

significant decrease in the number of 

potato producers and acreage in Area 

No. 3, the reserve has rapidly decreased 

to the current level of about $16,175. 

The Committee would like to maintain 

the reserve at approximately this level, 

thus reinstatement of the assessment 

rate at $0.02 per hundredweight is 

needed. 

The major expenditures 

recommended by the Committee for the 


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52172 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 

2008–2009 fiscal period include $7,800 

for salaries, $3,000 for rent expense, and 

$1,750 for office expenses. Budgeted 

expenses for these items in 2007–2008 

were also $7,800, $3,000, and $1,750, 

respectively. 

The assessment rate recommended by 

the Committee was derived by dividing 

anticipated expenses by expected 

shipments of Colorado Area No. 3 

potatoes. Colorado Area No. 3 potato 

shipments for the year are estimated at 

787,600 hundredweight which should 

provide $15,752 in assessment income. 

Income derived from handler 

assessments, rent, and interest, along 

with funds from the Committee’s 

authorized reserve, should be adequate 

to cover budgeted expenses. Funds in 

the reserve (estimated at $16,175 as of 

June 30, 2008) would be kept within the 

maximum permitted by the order 

(approximately two fiscal periods’

expenses; § 948.78). 

The assessment rate reinstated in this 

rule will continue in effect indefinitely 

unless modified, suspended, or 

terminated by USDA upon 

recommendation and information 

submitted by the Committee or other 

available information. 

Although this assessment rate will be 

in effect for an indefinite period, the 

Committee will continue to meet prior 

to or during each fiscal period to 

recommend a budget of expenses and 

consider recommendations for 

modification of the assessment rate. The 

dates and times of Committee meetings 

are available from the Committee or 

USDA. Committee meetings are open to 

the public and interested persons may 

express their views at these meetings. 

USDA will evaluate Committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

Committee’s 2008–2009 budget and 

those for subsequent fiscal periods will 

be reviewed and, as appropriate, 

approved by USDA. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA), the 

Agricultural Marketing Service (AMS) 

has considered the economic impact of 

this rule 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 the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

Based on Committee data, there are 8 

producers (7 of whom are also handlers) 

in the regulated area and 9 handlers (7 

of whom are also producers) who are 

subject to regulation under the order. 

Small agricultural producers are defined 

by the Small Business Administration 

(13 CFR 121.201) as those having annual 

receipts of less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $6,500,000. 

Based on Committee data, the 

production of Colorado Area No. 3 

potatoes for the 2007–2008 fiscal period 

was 550,026 hundredweight. Based on 

National Agricultural Statistics Service 

data, the average producer price for 

Colorado summer potatoes for 2007 was 

$7.55 per hundredweight. The average 

annual producer revenue for the 8 

Colorado Area No. 3 potato producers is 

therefore calculated to be approximately 

$519,000. Using Committee data 

regarding each individual handler’s 

total shipments during the 2007–2008 

fiscal period and a Committee estimated 

average f.o.b. price for 2007 of $9.75 per 

hundredweight ($7.55 per 

hundredweight plus estimated packing 

and handling costs of $2.20 per 

hundredweight), all of the Colorado 

Area No. 3 potato handlers ship under 

$6,500,000 worth of potatoes. Thus, the 

majority of handlers and producers of 

Colorado Area No. 3 potatoes may be 

classified as small entities. 

This rule reinstates § 948.215 of the 

order’s rules and regulations and 

establishes a continuing assessment rate 

for the Committee for the 2008–2009 

and subsequent fiscal periods at $0.02 

per hundredweight of potatoes handled. 

The reinstatement of the $0.02 

assessment rate and the 2008–2009 

expenditures of $19,497 were 

unanimously recommended by the 

Committee. The quantity of Colorado 

Area No. 3 potatoes for the 2008–2009 

fiscal period is estimated at 787,600 

hundredweight. Thus, the $0.02 rate 

should provide $15,752 in assessment 

income. Income derived from handler 

assessments, rent, and interest along 

with funds from the Committee’s 

authorized reserves should be adequate 

to meet this fiscal period’s budgeted 

expenses. 

The major expenditures 

recommended by the Committee for the 

2008–2009 fiscal period include $7,800 

for salaries, $3,000 for rent expense, and 

$1,750 for office expenses. Budgeted 

expenses for these items in 2007–2008 

were also $7,800, $3,000, and $1,750, 

respectively. 

For the 2006–2007 fiscal period, the 

Committee recommended suspending 

the continuing assessment rate to bring 

the monetary reserve within program 

limits of approximately two fiscal 

periods’ operating expenses (§ 948.78). 

At that time, the reserve fund contained 

about $49,237. The Committee has been 

operating for the last two years by 

drawing income from its reserve. With 

a suspended assessment rate and a 

significant decrease in the number of 

potato producers and acreage in Area 

No. 3, the reserve has rapidly decreased 

to the current level of about $16,175. 

The Committee would like to maintain 

the reserve at approximately this level, 

thus reinstatement of the assessment 

rate is needed. 

The Committee discussed alternatives 

to this rule, including alternative 

expenditure levels. Lower assessment 

rates were considered, but not 

recommended because they would not 

generate the income necessary to 

administer the program with adequate 

reserves. Higher assessment rates were 

also considered, but not recommended 

because they would add funds to the 

reserve. 

To calculate the assessment rate, the 

Committee deducted estimated income 

received from rent and interest from the 

total recommended budget ($19,497 ¥ 

$2,000 = $17,497). The assessment rate 

was then determined by dividing 

$17,497 by the quantity of assessable 

potatoes, which is estimated at 787,600 

hundredweight for the 2008–2009 fiscal 

period. The result was rounded to $0.02 

per hundredweight. This assessment 

rate will generate approximately $1,745 

less than anticipated expenses when 

combined with interest and rent 

income, which the Committee has 

determined to be acceptable. Funds 

from the Committee’s authorized reserve 

should be adequate to cover budgeted 

expenses not covered by income from 

assessments, interest, and rent. 

A review of historical information and 

preliminary information pertaining to 

the upcoming fiscal period indicates 

that the producer price for the 2008–

2009 fiscal period could range between 

$7.55 and $8.45 per hundredweight of 

Colorado summer potatoes. Therefore, 

the estimated assessment revenue for 

the 2008–2009 fiscal period as a 

percentage of total producer revenue 

could range between 0.24 and 0.26 

percent. 

This action reinstates the assessment 

obligation imposed on handlers. While 

assessments impose some additional 

costs on handlers, the costs are minimal 

and uniform on all handlers. Some of 


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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Rules and Regulations 52173 

the additional costs may be passed on 

to producers. However, these costs are 

offset by the benefits derived by the 

operation of the marketing order. 

In addition, the Committee’s meeting 

was widely publicized throughout the 

Colorado Area No. 3 potato industry and 

all interested persons were invited to 

attend the meeting and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the May 8, 

2008, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

This rule imposes no additional 

reporting or recordkeeping requirements 

on either small or large Colorado Area 

No. 3 potato 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. 

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. 

As noted in the initial regulatory 

flexibility analysis, USDA has not 

identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. 

A proposed rule concerning this 

action was published in the Federal 

Register on July 25, 2008 (73 FR 43375). 

Copies of the proposed rule were also 

mailed or sent via facsimile to all 

handlers. Finally, the proposal was 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 15-day comment period 

ending August 11, 2008, was provided 

for interested persons to respond to the 

proposal. 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.fetchTemplateData.do?

template=TemplateN&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. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) The 2008–2009 fiscal 

period began on July 1, 2008, and the 

marketing order requires that the rate of 

assessment for each fiscal period apply 

to all assessable potatoes handled 

during such fiscal period; (2) the 

northern Colorado potato shipping 

season began in July; (3) the Committee 

needs to have sufficient funds to pay for 

expenses which are incurred on a 

continuous basis; and (4) handlers are 

aware of this action which was 

recommended by the Committee at a 

public meeting and is similar to other 

assessment rate actions issued in past 

years. Also, a 15-day comment period 

was provided for in the proposed rule. 

List of Subjects in 7 CFR Part 948 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 948 is amended as 

follows: 

PART 948—IRISH POTATOES GROWN 

IN COLORADO 

■ 1. The authority citation for 7 CFR 

part 948 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In Part 948, the suspension of 

§ 948.215 is lifted. 

Dated: September 4, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E8–20853 Filed 9–8–08; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 71, 83, and 93 

[Docket No. APHIS–2007–0038] 

RIN 0579–AC74 

Viral Hemorrhagic Septicemia; 

Interstate Movement and Import 

Restrictions on Certain Live Fish 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are establishing 

regulations to restrict the interstate 

movement and importation into the 

United States of live fish that are 

susceptible to viral hemorrhagic 

septicemia, a highly contagious disease 

of certain fresh and saltwater fish. In 

2005 and 2006, viral hemorrhagic 

septicemia was detected in freshwater 

fish in several of the Great Lakes and 

related tributaries. The disease has been 

responsible for several large-scale dieoffs of wild fish in the Great Lakes 

region. This action is necessary to 

prevent further introductions into, and 

dissemination within, the United States 

of viral hemorrhagic septicemia. 

DATES: Effective date: This interim rule 

is effective November 10, 2008. 

Comment dates: Comments on the 

interim rule are due on or before 

November 10, 2008. Comments on the 

environmental assessment are due on or 

before October 9, 2008. 

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=APHIS2007-0038 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–2007–0038, 

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–

2007–0038. 

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. 

P. Gary Egrie, Senior Staff Veterinary 

Medical Officer, National Center for 

Animal Health Programs, VS, APHIS, 

4700 River Road Unit 46, Riverdale, MD 

20737–1231; (301) 734–0695; or Dr. 

Peter L. Merrill, Senior Staff 

Veterinarian, National Center for Import 

and Export, VS, APHIS, 4700 River 

Road Unit 39, Riverdale, MD 20737–

1231; (301) 734–8364. 

SUPPLEMENTARY INFORMATION: 


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