This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

26771 

Vol. 74, No. 106 

Thursday, June 4, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 28 

[Doc. # AMS–CN–09–0011; CN–09–001] 

User Fees for 2009 Crop Cotton 

Classification Services to Growers 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Agricultural Marketing 

Service (AMS) will raise user fees for 

cotton producers for 2009 crop cotton 

classification services under the Cotton 

Statistics and Estimates Act. These user 

fees also are authorized under the 

Cotton Standards Act of 1923. The 2008 

user fee for this classification service 

was $2.00 per bale. This rule will raise 

the fee for the 2009 crop to $2.20 per 

bale. The proposed fee and the existing 

reserve are sufficient to cover the costs 

of providing classification services, 

including costs for administration and 

supervision. 

DATES: Effective Date: Effective July 1, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Darryl Earnest, Deputy Administrator, 

Cotton and Tobacco Program, AMS, 

USDA, Room 2639–S, STOP 0224, 1400 

Independence Avenue, SW., 

Washington, DC 20250–0224. 

Telephone (202) 720–2145, facsimile 

(202) 690–1718, or e-mail 

darryl.earnest@usda.gov. 

SUPPLEMENTARY INFORMATION: A 

proposed rule detailing the revisions 

was published in the Federal Register 

on March 26, 2009 (74 FR 13128). A 15- 

day comment period was provided for 

interested persons to respond to the 

proposed rule. Two comments were 

received from national cotton industry 

organizations in support of the service 

and the need for the fee increase. 

Executive Order 12866 

This rule has been determined to be 

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 final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It 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. There are no administrative 

procedures that must be exhausted prior 

to any judicial challenge to the 

provisions of this rule. 

Regulatory Flexibility Act 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612) AMS has considered 

the economic impact of this action on 

small entities and has determined that 

its implementation will not have a 

significant economic impact on a 

substantial number of small businesses. 

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. There are 

an estimated 25,000 cotton growers in 

the U.S. who voluntarily use the AMS 

cotton classing services annually, and 

the majority of these cotton growers are 

small businesses under the criteria 

established by the Small Business 

Administration (13 CFR 121.201). The 

increase above the 2008 crop level as 

stated will not significantly affect small 

businesses as defined in the RFA 

because: 

(1) The fee represents a very small 

portion of the cost-per-unit currently 

borne by those entities utilizing the 

services. (The 2008 user fee for 

classification services was $2.00 per 

bale; the fee for the 2009 crop would be 

increased to $2.20 per bale; the 2009 

crop is estimated at 14,500,000 bales). 

(2) The fee for services will not affect 

competition in the marketplace; and 

(3) The use of classification services is 

voluntary. For the 2008 crop, 12,740,000 

bales were produced; and, almost all of 

these bales were voluntarily submitted 

by growers for the classification service. 

(4) Based on the average price paid to 

growers for cotton from the 2007 crop of 

53.50 cents per pound, 500 pound bales 

of cotton are worth an average of 

$267.50 each. The proposed user fee 

increase for classification services, $.20 

per bale, is less than one percent of the 

value of an average bale of cotton. 

Paperwork Reduction Act 

In compliance with OMB regulations 

(5 CFR part 1320), which implement the 

Paperwork Reduction Act (PRA) (44 

U.S.C. 3501–3520), the information 

collection requirements contained in the 

provisions to be amended by this 

proposed rule have been previously 

approved by OMB and were assigned 

OMB control number 0581–AC43. 

Fees for Classification Under the Cotton 

Statistics and Estimates Act of 1927 

This final rule will establish the user 

fee charged to producers for High 

Volume Instrument (HVI) classification 

at $2.20 per bale for the 2009 cotton 

crop. The 2009 user fee charged to 

cotton producers for HVI classification 

was calculated using new methodology, 

as was authorized by section 14201 of 

the Food, Conservation, and Energy Act 

of 2008 (Pub. L. 110–234) (2008 Farm 

Bill). In previous years, the fee was 

determined using a user-fee formula 

mandated in the Uniform Cotton 

Classing Fees Act of 1987 (Pub. L. 100– 

108, 101 Stat. 728) (1987 Act), as 

amended. This formula used the 

previous year’s base fee that was 

adjusted for inflation and economies of 

size (1 percent decrease/increase for 

every 100,000 bales above/below 12.5 

million bales with maximum 

adjustment being ±15 percent). The user 

fee was then further adjusted to comply 

with operating reserve constraints 

(between 10 and 25 percent of projected 

operating costs) specified by the 1987 

Act. 

The 2008 user fee charged to cotton 

producers for High Volume Instrument 

(HVI) classification services under the 

Cotton Statistics and Estimates Act of 

1927 (7 U.S.C. 471–476) was $2.00 per 

bale during the 2008 harvest season as 

determined by using the formula 

provided in the 1987 Act. The fee 

covered salaries, costs of equipment and 

supplies, and other overhead costs, 

including costs for administration and 

supervision. Also, the fee structure for 

the 2007 crop year was incorporated 

under the authority of the Cotton 

Standards Act of 1923 (7 U.S.C. 51–65), 

26772 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Rules and Regulations 

by an interim final rule effective 

October 1, 2007 (72 FR 56242). 

Section 14201 of the 2008 Farm Bill 

provides that: (1) The Secretary shall 

make available cotton classification 

services to producers of cotton, and 

provide for the collection of 

classification fees from participating 

producers or agents that voluntarily 

agree to collect and remit the fees on 

behalf of the producers; (2) 

classification fees collected and the 

proceeds from the sales of samples 

submitted for classification shall, to the 

extent practicable, be used to pay the 

cost of the services provided, including 

administrative and supervisory costs; (3) 

the Secretary shall announce a uniform 

classification fee and any applicable 

surcharge for classification services not 

later than June 1 of the year in which 

the fee applies; and (4) in establishing 

the amount of fees under this section, 

the Secretary shall consult with 

representatives of the United States 

cotton industry. At pages 313–314, the 

Joint Explanatory Statement of the 

committee of conference for section 

14201 stated the expectation that the 

cotton classification fee would be 

established in the same manner as was 

applied during the 1992 through 2007 

fiscal years. The classification fee 

should continue to be a basic, uniform 

fee per bale fee as determined necessary 

to maintain cost-effective cotton 

classification service. Further, in 

consulting with the cotton industry, the 

Secretary should demonstrate the level 

of fees necessary to maintain effective 

cotton classification services and 

provide the Department of Agriculture 

with an adequate operating reserve, 

while also working to limit adjustments 

in the year-to-year fee. 

Under the provisions of section 

14201, a user fee (dollar per bale 

classed) is established that, when 

combined with other sources of 

revenue, will result in projected 

revenues sufficient to reasonably cover 

budgeted costs—adjusted for inflation— 

and allow for adequate operating 

reserves to be maintained. Costs 

considered in this method include 

salaries, costs of equipment and 

supplies, and other overhead costs, such 

as facility costs and costs for 

administration and supervision. In 

addition to covering expected costs, the 

user fee is set such that projected 

revenues will generate an operating 

reserve adequate to effectively manage 

uncertainties related to crop size and 

cash-flow timing while meeting 

minimum reserve requirements set by 

the Agricultural Marketing Service, 

which require maintenance of a reserve 

fund amount equal to four months of 

projected operating costs. 

Extensive consultations regarding the 

establishment of the classification fee 

with U.S. cotton industry 

representatives were held during the 

period from September 2008 through 

January 2009 during numerous publicly 

held meetings. Representatives of all 

segments of the cotton industry, 

including producers, ginners, bale 

storage facility operators, merchants, 

cooperatives, and textile manufacturers 

were addressed in various industrysponsored forums. 

The user fee established to be charged 

cotton producers for High Volume 

Instrument (HVI) classification in 2009 

is $2.20 per bale. This fee is based on 

the pre-season projection that 14.5 

million bales will be classed by the 

United States Department of Agriculture 

during the 2009 crop year. 

Accordingly § 28.909, paragraph (b) 

will reflect the increase of the HVI 

classification fee to $2.20 per bale. 

A 5 cent per bale discount will 

continue to be applied to voluntary 

centralized billing and collecting agents 

as specified in § 28.909(c). 

Growers or their designated agents 

receiving classification data will 

continue to incur no additional fees if 

classification data is requested only 

once. The fee for each additional 

retrieval of classification data in 

§ 28.910 will remain at 5 cents per bale. 

The fee in § 28.910 (b) for an owner 

receiving classification data from the 

National database will remain at 5 cents 

per bale, and the minimum charge of 

$5.00 for services provided per monthly 

billing period will remain the same. The 

provisions of § 28.910 (c) concerning the 

fee for new classification memoranda 

issued from the National database for 

the business convenience of an owner 

without reclassification of the cotton 

will remain the same at 15 cents per 

bale or a minimum of $5.00 per sheet. 

The fee for review classification in 

§ 28.911 will increase to $2.20 per bale. 

The fee for returning samples after 

classification in § 28.911 will remain at 

50 cents per sample. 

In addition to raising user fees for the 

2009 crop cotton classification services 

to $2.20 per bale, this rule finalizes the 

provisions of the interim final rule 

published in the Federal Register at 

72FR56242 on October 3, 2007. 

Pursuant to 5 U.S.C. 553, good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because this rule maintains uniform 

user fees for 2009 crop cotton 

classification services as mandated by 

the Cotton Statistics and Estimates Act. 

The earliest harvest and classification of 

2009 cotton will occur during July, and 

the law mandates that the user fee be 

established sufficiently early so that a 

uniform fee is charged for the 

classification of the entire 2009 cotton 

crop, which will extend from July 2009 

to May 2010. Only two comments were 

received during the public comment 

period provided in the proposal, and 

both were supportive of the need for the 

user fee increase. 

List of Subjects in 7 CFR Part 28 

Administrative practice and 

procedure, Cotton, Cotton samples, 

Grades, Market news, Reporting and 

recordkeeping requirements, Standards, 

Staples, Testing, Warehouses. 

PART 28—[AMENDED] 

■ For the reasons set forth in the 

preamble, 7 CFR part 28 is amended by 

revising subpart D to read as follows: 

Subpart D—Cotton Classification and 

Market News Service for Producers 

Sec. 

Definitions 

28.901 Definitions. 

Administration 

28.902 Director. 

Classification and Market News Services 

28.903 Classification of samples. 

28.904 Market news. 

Sampling 

28.906 Sampling arrangements. 

28.907 Responsibilities of licensed gins or 

warehouses. 

28.908 Samples. 

28.909 Costs. 

Classification 

28.910 Classification of samples and 

issuance of classification data. 

28.911 Review classification. 

Limitations of Services 

28.917 Limitations of Services. 

Subpart D—Cotton Classification and 

Market News Service for Producers 

Authority: 7 U.S.C. 51–65; 7 U.S.C. 471– 

476. 

Definitions 

§ 28.901 Definitions. 

When used in the regulations in this 

subpart: 

(a) Act means the United States 

Cotton Standards Act of 1923, as 

amended (7 U.S.C. 51–65) and the 

Cotton Statistics and Estimates Act of 

1927 (7 U.S.C. 471–476), unless 

otherwise noted. 

Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Rules and Regulations 26773 

(b) Service means the Agricultural 

Marketing Service of the United States 

Department of Agriculture. 

(c) Administrator means the 

Administrator of the Agricultural 

Marketing Service, or any officer or 

employee of the Service to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated to act for the Administrator. 

(d) Division means the Cotton 

Division of the Agricultural Marketing 

Service. 

(e) Director means the Director of the 

Cotton Division, or any officer or 

employee of the Division to whom 

authority has heretofore been delegated 

or to whom authority may hereafter be 

delegated, to act for the Director. 

(f) Producer means any individual, 

partnership, corporation, association, 

trust, estate, or other legal entity, a State 

or political subdivision thereof, or any 

agency of such State or political 

subdivision producing American 

Upland or American Pima cotton in the 

capacity of landowner, landlord, tenant, 

or sharecropper. 

Administration 

§ 28.902 Director. 

The Director shall perform for and 

under the supervision of the 

Administrator, such duties as the 

Administrator may require in enforcing 

the regulations in this subpart. 

Classification and Market News 

Services 

§ 28.903 Classification of samples. 

The Director, or an authorized 

representative, upon the receipt of a 

producer’s cotton sample which 

complies with the regulations in this 

subpart shall, as hereinafter provided, 

furnish to such producer or to an agent 

designated by the producer the 

classification in accordance with the 

official cotton standards of the United 

States. 

§ 28.904 Market news. 

The Director shall cause to be 

distributed to producers of cotton and to 

others on request, timely information on 

prices for various qualities of cotton. 

Sampling 

§ 28.906 Sampling arrangements. 

(a) Cotton must be sampled by a gin 

or warehouse that holds a valid license 

to sample cotton issued pursuant to 

§§ 28.20 through 28.22. 

(b) The Director, or an authorized 

representative may direct that sampling 

be performed by employees of the 

Department of Agriculture for the 

purpose of appraising the sampling 

procedures at cotton gins or 

warehouses, or for the purpose of 

providing service to producers in 

special cases where a licensed gin or 

warehouse is not available. 

§ 28.907 Responsibilities of licensed gins 

or warehouses. 

Each licensee shall be primarily 

responsible for drawing, identifying, 

handling, and shipping samples of 

cotton in accordance with this subpart 

and with instructions furnished by the 

Director or an authorized representative 

from time to time. 

§ 28.908 Samples. 

(a) Only one sample to be submitted. 

Only one sample from each bale of 

eligible cotton shall be submitted for 

classification under this subpart. This 

does not prohibit the submission of an 

additional sample from a bale for review 

classification if the producer so desires. 

(b) Drawing of samples manual. (1) 

Each cut sample shall be drawn from 

the bale after it is tied out following the 

ginning process, and shall be 

approximately 6 ounces in weight, not 

less than 3 ounces of which are to be 

drawn from each side of the bale: 

Provided, That each sample from a bale 

of American Pima cotton shall be 

approximately 10 ounces in weight, not 

less than 5 ounces of which are to be 

drawn from each side of the bale. 

(2) Where it is necessary to draw two 

sets of samples, a single cut should be 

made in each side of the bale, and the 

portion of cotton removed from each cut 

should be broken in half across the 

layers to provide two complete samples. 

In those cases where this method would 

result in samples of insufficient length, 

it will be acceptable to split the sample 

lengthwise along the layers, provided 

the outside portion from each side is 

submitted for the official classification. 

(c) Mechanical sampling. Samples 

may be drawn in gins equipped with 

mechanical samplers approved by the 

Division and operated according to 

sampling instructions furnished by the 

Director or an authorized representative. 

Such samples shall not be less than 6 

ounces in weight. 

(d) Samples must be representative. 

Each sample must be representative of 

the bale from which drawn. 

(e) Handling samples. Samples shall 

not be dressed or trimmed and shall be 

carefully handled in such manner as not 

to cause loss of leaf, sand, or other 

material, or otherwise change their 

representative character. Samples shall 

be handled only by employees of the 

licensee prior to shipment or delivery to 

the cotton classing office of the 

Division. 

(f) Identifying and shipping samples. 

Each sample shall be identified with a 

tag, supplied or approved by the 

Division, bearing the gin or warehouse 

number of the bale from which the 

sample was drawn and the name and 

address of the producer of the bale. The 

tag shall be placed between the two 

halves of the sample, the sample tightly 

rolled and enclosed in a package or bag 

for shipment. Each package or bag shall 

be labeled or marked with the name and 

address of the licensed gin or 

warehouse. The packages shall be 

shipped or delivered direct to the cotton 

classing office serving the territory in 

which the cotton is ginned. Samples 

that were drawn by a mechanical 

sampler at the gin may be transported 

with the bales to the warehouse and 

then shipped or delivered direct to the 

classing office by the warehouse. 

(g) Request for classification. Samples 

received from a licensed gin or 

warehouse with the identification tag 

required in § 28.908(f) shall constitute a 

request for classification service by the 

producer. 

§ 28.909 Costs. 

(a) Costs incident to sampling, 

tagging, and identification of samples 

and transporting samples to points of 

shipment shall be assumed by the 

producer, but tags and containers for the 

shipment of samples and shipping 

charges via U.S. Postal Service or duly 

authorized common carrier will be 

furnished by the service. After 

classification the samples shall become 

the property of the Government. The 

proceeds of the sale of cotton samples 

shall be used to defray the costs of 

providing the services under this 

subpart. 

(b) The cost of High Volume 

Instrument (HVI) cotton classification 

service to producers is $2.20 per bale. 

(c) The Division will periodically bill 

producers or the voluntary agents 

designated by producers for the cost of 

classification. A discount of 5 cents per 

sample will be granted for services 

provide under this section when billing 

is made to voluntary agents. 

Classification 

§ 28.910 Classification of samples and 

issuance of classification data. 

(a)(1) The samples submitted as 

provided in the subpart shall be 

classified by employees of the Division 

and classification memoranda showing 

the official quality determination of 

each sample according to the official 

cotton standards of the United States 

shall be issued by any one of the 

following methods at no additional 

charge: 

26774 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Rules and Regulations 

(i) Computer diskettes, 

(ii) Computer tapes, or 

(iii) Telecommunications, with all 

long distance telephone line charges 

paid by the receiver of data. 

(2) When an additional copy of the 

classification memorandum is issued by 

any method listed in paragraph (a)(1) of 

this section, there will be a charge of 

five cents per bale. If provided as an 

additional method of data transfer, the 

minimum fee for each tape or diskette 

issued shall be $10.00. 

(b) Owners of cotton, other than 

producers, may receive classification 

data showing the official quality 

determination of each sample by means 

of telecommunications from a central 

database to be maintained by the 

Division. The fee for this service shall 

be five cents per bale, with all long 

distance telephone line charges paid by 

the receiver of data. The minimum 

charge assessed for services obtained 

from the central database be $5.00 per 

monthly billing period. 

(c) Upon request of an owner of cotton 

for which classification memoranda 

have been issued under the subpart, a 

new memorandum shall be issued for 

the business convenience of such owner 

without the reclassification of the 

cotton. Such rewritten memorandum 

shall bear the date of its issuance and 

the date or inclusive dates of the 

original classification. The fee for a new 

memorandum shall be 15 cents per bale 

or a minimum of $5.00 per sheet. 

§ 28.911 Review classification. 

(a) A producer may request one 

review classification for each bale of 

eligible cotton. The fee for review 

classification is $2.20 per bale. 

(b) Samples for review classification 

must be drawn by gins or warehouses 

licensed pursuant to §§ 28.20 through 

28.22, or by employees of the United 

States Department of Agriculture. Each 

sample for review classification shall be 

taken, handled, and submitted 

according to § 28.908 and to 

supplemental instructions issued by the 

Director or an authorized representative 

of the Director. Costs incident to 

sampling, tagging, identification, 

containers, and shipment for samples 

for review classification shall be 

assumed by the producer. After 

classification, the samples shall become 

the property of the Government unless 

the producer requests the return of the 

samples. The proceeds from the sale of 

samples that become Government 

property shall be used to defray the 

costs of providing the services under 

this subpart. Producers who request 

return of their samples after classing 

will pay a fee of 50 cents per sample in 

addition to the fee established above in 

this section. 

Limitations of Services 

§ 28.917 Limitations of Services. 

The Director, or an authorized 

representative, may suspend, terminate, 

or withhold cotton classing and market 

news services to any producer upon any 

failure of the producer to comply with 

the act or these regulations. Failure to 

remit fees for classification services 

shall result in loss of service. 

Dated: June 2, 2009. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. E9–13148 Filed 6–2–09; 4:15 pm] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2009–0036] 

Karnal Bunt; Regulated Areas 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the Karnal 

bunt regulations to remove certain areas 

or fields in Riverside County, CA, from 

the list of regulated areas based on our 

determination that those areas or fields 

meet our criteria for release from 

regulation of Karnal bunt, a fungal 

disease of wheat. This action is needed 

to relieve restrictions on certain areas or 

fields that are no longer necessary. 

DATES: This interim rule is effective 

June 4, 2009. We will consider all 

comments that we receive on or before 

August 3, 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=APHIS2009-0036 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–2009–0036, 

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– 

2009–0036. 

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: Ms. 

Lynn Evans-Goldner, Karnal Bunt 

Program Manager, Plant Pathogen and 

Weed Programs, EDP, PPQ, APHIS, 4700 

River Road, Unit 26, Riverdale, MD 

20737–1236; (301) 734–7228. 

SUPPLEMENTARY INFORMATION: 

Background 

Karnal bunt is a fungal disease of 

wheat (Triticum aestivum), durum 

wheat (Triticum durum), and triticale 

(Triticum aestivum X Secale cereale), a 

hybrid of wheat and rye. Karnal bunt is 

caused by the fungus Tilletia indica 

(Mitra) Mundkur and is spread 

primarily through the planting of 

infected seed followed by very specific 

environmental conditions matched 

during specific stages of wheat growth. 

Some countries in the international 

wheat market regulate Karnal bunt as a 

fungal disease requiring quarantine; 

therefore, without measures taken by 

the Animal and Plant Health Inspection 

Service (APHIS), United States 

Department of Agriculture, to prevent 

its spread, the presence of Karnal bunt 

in the United States could have 

significant consequences with regard to 

the export of wheat to international 

markets. 

Upon detection of Karnal bunt in 

Arizona in March of 1996, Federal 

quarantine and emergency actions were 

imposed to prevent the interstate spread 

of the disease to other wheat-producing 

areas in the United States. The 

quarantine continues in effect, although 

it has since been modified, both in 

terms of its physical boundaries and in 

terms of its restrictions on the 

production and movement of regulated 

articles from regulated areas. The 

regulations regarding Karnal bunt are set 

forth in 7 CFR 301.89–1 through 

301.89–16 (referred to below as the 

regulations). Articles regulated for 

Karnal bunt are listed in § 301.89–2. 

Conditions for determining whether an 

area is regulated for Karnal bunt are set 

forth in § 301.89–3.