Apricots Grown in Designated Counties in Washington; Increased Assessment Rate, 54668-54671 [E8-22146]
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54668
Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations
notice of final rulemaking with respect
to the subject matter of this rule.
Environmental Analysis
The final rule amends the procedures
for implementing the National
Environmental Policy Act (NEPA) at 7
CFR Part 650 and would not directly
impact the environment. Agency NEPA
procedures are procedural guidance to
assist agencies in the fulfillment of
Agency responsibilities under NEPA,
but are not the Agency’s final
determination of what level of NEPA
analysis is required for a particular
action. The CEQ set forth the
requirements for establishing Agency
NEPA procedures in its regulations at 40
CFR 1505.1 and 1507.3. The CEQ
regulations do not require agencies to
conduct NEPA analyses or prepare
NEPA documentation when establishing
their NEPA procedures. The
determination that establishing Agency
NEPA procedures does not require
NEPA analysis and documentation has
been upheld in Heartwood, Inc. v. U.S.
Forest Service, 230 F.3d 947, 954–55
(7th Cir. 2000).
Paperwork Reduction Act
There are no requirements for
information collection associated with
this final rule that would require
approval under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538), NRCS has assessed the effects of
this final rule on State, local, and tribal
governments and the private sector.
This final rule does not compel the
expenditure of $100 million or more by
any State, local, or tribal governments or
anyone in the private sector. Therefore,
a statement under section 202 of the Act
is not required.
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Civil Justice Reform
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. After adoption of this
final rule, (1) all State and local laws
and regulations that conflict with this
rule or that would impede full
implementation of this rule will be
preempted; (2) no retroactive effect
would be given to this final rule; and (3)
before an action may be brought in a
Federal court of competent jurisdiction,
the administrative appeal rights
afforded persons at 7 CFR Parts 614,
780, and 11 must be exhausted.
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Federalism
NRCS has considered this final rule
under the requirements of Executive
Order 13132 issued August 4, 1999 (E.O.
13132), ‘‘Federalism.’’ The Agency has
made an assessment that the final rule
conforms with the Federalism
principles set out in this Executive
Order; would not impose any
compliance costs on the States; and
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, nor on the distribution of
power and responsibilities among the
various levels of government. Therefore,
NRCS concludes that this final rule does
not have Federalism implications.
Energy Effects
This final rule has been reviewed
under Executive Order 13211 issued
May 18, 2001 (E.O. 13211), ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use.’’ NRCS has
determined that this final rule does not
constitute a significant energy action as
defined in E.O. 13211.
For the reasons stated in the
preamble, under the authority at 42
U.S.C. 4321 et seq.; Executive Order
11514 (Rev.); 7 CFR 2.62, the Natural
Resources Conservation Service
confirms the interim rule amending 7
CFR part 650 which published at 73 FR
35883 on June 25, 2008, is adopted as
final without change.
Arlen L. Lancaster,
Chief, Natural Resources Conservation
Service.
[FR Doc. E8–22090 Filed 9–22–08; 8:45 am]
BILLING CODE 3410–16–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS–FV–08–0052; FV08–922–
1 FR]
Apricots Grown in Designated
Counties in Washington; Increased
Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule increases the
assessment rate established for the
Washington Apricot Marketing
Committee (Committee) for the 2008–09
and subsequent fiscal periods from
$1.50 to $2.00 per ton for Washington
apricots. The Committee is responsible
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for local administration of the marketing
order regulating the handling of apricots
grown in designated counties in
Washington. Assessments upon
handlers of apricots are used by the
Committee to fund reasonable and
necessary expenses of the program. The
fiscal period for the marketing order
begins April 1 and ends March 31. The
assessment rate remains in effect
indefinitely unless modified, suspended
or terminated.
DATES: Effective Date: September 24,
2008.
FOR FURTHER INFORMATION CONTACT:
Robert J. Curry or Gary D. Olson,
Northwest Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1220 SW Third Avenue,
suite 385, Portland, OR 97204;
Telephone: (503) 326–2724; Fax: (503)
326–7440; or e-mail:
Robert.Curry@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, 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.
922 (7 CFR 922), as amended, regulating
the handling of apricots grown in
designated counties in Washington,
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, apricot handlers in designated
counties in Washington 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 Washington
apricots beginning April 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
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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations
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 increases the assessment
rate established for the Committee for
the 2008–09 and subsequent fiscal
periods from $1.50 to $2.00 per ton for
Washington apricots handled.
The 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 apricots in
designated counties in Washington.
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 at a public meeting. Thus, all
directly affected persons have an
opportunity to participate and provide
input.
For the 2007–08 and subsequent fiscal
periods, the Committee recommended,
and the USDA approved, an assessment
rate of $1.50 per ton of apricots handled.
This rate continues in effect from fiscal
period to fiscal period unless modified,
suspended, or terminated by USDA
upon recommendation and information
submitted by the Committee or other
information available to USDA.
The Committee met on May 15, 2008,
and unanimously recommended 2008–
09 expenditures of $7,093. In
comparison, last year’s budgeted
expenditures were $6,743. In addition,
the Committee recommended that the
$1.50 per ton assessment rate approved
for the 2007–08 and subsequent fiscal
periods be increased by $0.50 to $2.00
per ton of apricots handled. The
Washington apricot production area
experienced freezing weather in April
this year that was predicted to have a
significant impact on apricot
production. As a result, the Committee
estimated a total fresh crop of only
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3,650 tons for this season—significantly
less than the 6,620 tons of fresh apricots
reported to the Committee by industry
handlers last season. Due to this
anticipated shortfall, the Committee
recommended that the assessment rate
be increased by $0.50 to help ensure
that budgeted expenses are adequately
covered.
The major expenditures
recommended by the Committee for the
2008–09 fiscal period include $4,800 for
the management fee, $1,000 for
Committee travel, $100 for compliance,
and $1,193 for equipment maintenance,
insurance, bonds, and miscellaneous
expenses. In comparison, major
expenditures for the 2007–08 fiscal
period included $4,800 for the
management fee, $1,000 for travel, $500
for the annual financial audit, $100 for
compliance, and $343 for equipment
maintenance, insurance, bonds, and
miscellaneous expenses.
The assessment rate recommended by
the Committee was derived by dividing
the anticipated expenses of $7,093 by
the projected 2008 3,650 ton apricot
production. Applying the $2.00 per ton
assessment rate to this crop estimate
should provide $7,300 in assessment
income. Although the 3,650 ton crop
estimate reflects the Committee’s best
current assessment of the damage the
late-season freezing temperatures may
have had on production this season,
Committee members expressed some
concern that production could
potentially end up even shorter.
Because of the crop estimate
uncertainty, the Committee felt that the
$2.00 per ton assessment rate is
warranted even though the projected
fiscal year-end reserve balance at this
time is $8,173. Although this amount is
slightly higher than the recommended
budget, the reserve would still be within
the order’s limit of approximately one
fiscal period’s operational expenses.
The assessment rate established 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
effective 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 the Committee’s
meetings are available from the
Committee or USDA. The Committee’s
meetings are open to the public and
interested persons may express their
views at these meetings. USDA will
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54669
evaluate the Committee’s
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 2008–09 budget has been
reviewed and approved by USDA.
Subsequent fiscal period budgets will
also 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.
There are approximately 300 apricot
producers within the regulated
production area and approximately 22
regulated handlers. 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.
The Washington Agricultural
Statistics Service has prepared a report
showing that the total 7,000 ton apricot
utilization sold for an average of $1,120
per ton in 2007 with a total farm-gate
value of approximately $7,827,000.
Based on the number of producers in
the production area (300), the average
annual producer revenue from the sale
of apricots in 2007 can thus be
estimated at approximately $26,090. In
addition, based on information from the
Committee and USDA’s Market News
Service, 2007 f.o.b. prices ranged from
$18.00 to $20.00 per 24-pound loosepack container, and from $20.00 to
$22.00 for 2-layer tray-pack containers.
Approximately 40 percent of the 2007
6,620 ton fresh pack-out was packed in
24-pound loose-pack containers while
the remainder was packed in 2-layer
tray-pack containers (weighing an
average of about 20 pounds each). On
the high end, this would have grossed
the 22 apricot handlers approximately
$13,151,700 in f.o.b. receipts for the
2007 crop—leaving average receipts for
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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations
each handler well below the SBA’s
$6,500,000 threshold for small
businesses. Therefore, the majority of
producers and handlers of Washington
apricots may be classified as small
entities.
This rule increases the assessment
rate established for the Committee and
collected from handlers for the 2008–09
and subsequent fiscal periods from
$1.50 to $2.00 per ton for apricots
handled under the order’s authority.
The Committee also unanimously
recommended 2008–09 expenditures of
$7,093. With a 2008–09 Washington
apricot crop estimate of 3,650 tons, the
Committee anticipates assessment
income of about $7,300. Due to the
sharply smaller crop expected this
season, the Committee recommended
the assessment rate increase to help
ensure that budgeted expenses are
adequately covered.
Although there continues to be
uncertainty this season regarding
production totals due to the mid-spring
freezing weather, income derived from
handler assessments should adequately
cover budgeted expenses. Because of the
crop estimate uncertainty, the
Committee felt the $2.00 per ton
assessment rate is warranted even
though the projected fiscal year-end
reserve balance at this time is $8,173.
Although this amount is slightly higher
than the recommended budget, the
reserve would still be within the order’s
limit of approximately one fiscal
period’s operational expenses.
The major expenditures
recommended by the Committee for the
2008–09 fiscal period include $4,800 for
the management fee, $1,000 for
Committee travel, $100 for compliance,
and $1,193 for equipment maintenance,
insurance, bonds, and miscellaneous
expenses. In comparison, major
expenditures for the 2007–08 fiscal
period included $4,800 for the
management fee, $1,000 for travel, $500
for the annual financial audit, $100 for
compliance, and $343 for equipment
maintenance, insurance, bonds, and
miscellaneous expenses.
The Committee discussed alternatives
to this increase in the assessment rate.
Leaving the assessment rate at $1.50 per
ton was discussed, but not seriously
considered since such a rate would not
have earned adequate income and
would have thus significantly depleted
the Committee’s reserves. Although a
rate of assessment somewhat less than
the recommended $2.00 per ton rate
would have potentially covered the
recommended expenses, the Committee
chose the higher rate due to the
uncertainty the members felt regarding
the 3,650 ton crop estimate. The mid-
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April freeze experienced in the growing
regions this year left doubt in some
members minds that the final pack-out
this season will even reach the 3,650 ton
estimate.
A review of historical information and
preliminary information pertaining to
the upcoming crop year indicates that
the producer price for the 2008–09
season could average about $1,000 per
ton for fresh Washington apricots.
Therefore, the estimated assessment
revenue for the 2008–09 fiscal period as
a percentage of total producer revenue
is 0.2 percent for Washington apricots.
This action increases 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
the additional costs may be passed on
to producers. However, these costs
would be offset by the benefits derived
by the operation of the order.
In addition, the Committee’s meeting
was widely publicized throughout the
Washington apricot industry and all
interested persons were invited to
attend and participate in Committee
deliberations on all issues. Like all
Committee meetings, the May 15, 2008,
meeting was a public meeting and all
entities, both large and small, were able
to express views on the issues. Finally,
interested persons were invited to
submit information on the regulatory
and informational impacts of this action
on small businesses.
This rule imposes no additional
reporting or recordkeeping requirements
on either small or large Washington
apricot 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. Additionally, 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.
A proposed rule concerning this
action was published in the Federal
Register on August 18, 2008 (73 FR
48156). Committee staff made copies of
the proposed rule available to
Committee members, handlers and other
interested persons. The proposed rule
was also made available through the
Internet by USDA and the Office of the
Federal Register. A 15 day comment
period ending September 2, 2008, was
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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 order may be
viewed at: https://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
police 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 2008–09 fiscal period
began on April 1, 2008, and the order
requires that the assessment rate for
each fiscal period apply to all assessable
apricots handled during such fiscal
period; (2) the Washington apricot
harvest and shipping season is currently
under way; (3) the Committee needs to
have sufficient funds to pay its
expenses, which are incurred on a
continuous basis; (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; and (5) a
15-day comment period was provided
for in the proposed rule.
List of Subjects in 7 CFR Part 922
Apricots, Marketing agreements,
Reporting and recordkeeping
requirements.
■ For the reasons set forth in the
preamble, 7 CFR part 922 is amended as
follows:
PART 922—APRICOTS GROWN IN
DESIGNATED COUNTIES IN
WASHINGTON
1. The authority citation for 7 CFR
part 922 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Section 922.235 is revised to read
as follows:
■
§ 922.235
Assessment rate.
On or after April 1, 2008, an
assessment rate of $2.00 per ton is
established for the Washington Apricot
Marketing Committee.
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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations
Dated: September 17, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–22146 Filed 9–22–08; 8:45 am]
BILLING CODE 3410–02–P
NUCLEAR REGULATORY
COMMISSION
10 CFR Parts 2 and 13
RIN 3150–AI45
[NRC–2008–0412]
Adjustment of Civil Penalties for
Inflation
Nuclear Regulatory
Commission.
ACTION: Final rule.
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AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) is amending its
regulations to adjust the maximum Civil
Monetary Penalties (CMPs) it can assess
under statutes within the jurisdiction of
the NRC. These changes were mandated
by Congress in the Federal Civil
Penalties Inflation Adjustment Act of
1990, as amended by the Debt
Collection Improvement Act of 1996.
The NRC is amending its regulations to
adjust the maximum CMP for a violation
of the Atomic Energy Act of 1954, as
amended, (AEA) or any regulation or
order issued under the AEA from
$130,000 to $140,000 per violation per
day. Further, the provisions concerning
program fraud civil penalties are being
amended by adjusting the maximum
CMP under the Program Fraud Civil
Remedies Act from $6,000 to $7,000 for
each false claim or statement.
DATES: This rule is effective on October
23, 2008.
ADDRESSES: You can access publicly
available documents related to this
document using the following methods:
Federal e-Rulemaking Portal: Go to
https://www.regulations.gov and search
for documents filed under Docket ID
[NRC–2008–0412]. Address questions
about NRC dockets to Carol Gallagher
301–415–5905; e-mail
Carol.Gallagher@nrc.gov.
NRC’s Public Document Room (PDR):
The public may examine and have
copied for a fee publicly available
documents at the NRC’s PDR, Public
File Area O F21, One White Flint North,
11555 Rockville Pike, Rockville,
Maryland.
NRC’s Agencywide Documents Access
and Management System (ADAMS):
Publicly available documents created or
received at the NRC are available
electronically at the NRC’s electronic
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16:35 Sep 22, 2008
Jkt 214001
Reading Room at https://www.nrc.gov/
reading-rm/adams.html. From this page,
the public can gain entry into ADAMS,
which provides text and image files of
NRC’s public documents. If you do not
have access to ADAMS or if there are
problems in accessing the documents
located in ADAMS, contact the NRC’s
PDR reference staff at 1–899–397–4209,
301–415–4737, or by e-mail to
pdr.resource@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Maxwell C. Smith, Office of the General
Counsel, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, telephone 301–415–1246, e-mail:
maxwell.smith@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
III. Procedural Background
IV. Voluntary Consensus Standard
V. Environmental Impact: Categorical
Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Congressional Review Act
I. Background
The Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended,
requires that the head of each agency
adjust by regulations the CMPs within
the jurisdiction of the agency for
inflation at least once every four years.
The NRC’s last adjustment to the CMPs
within its jurisdiction became effective
on November 26, 2004. (October 26,
2004; 69 FR 62393).
The inflation adjustment is to be
determined by increasing the maximum
CMPs by the percentage that the
Consumer Price Index (CPI) for the
month of June of the calendar year
preceding the adjustment exceeds the
CPI for the month of June in the last
calendar year in which the amount of
the penalty was last adjusted. Applying
this formula results in a 9.8 percent
increase to the maximum CMPs for
violations of the AEA. During the 2004
inflation adjustment, the CMPs for
violations of the Program Fraud Civil
Remedies Act remained unchanged.
Therefore, for this update the percentage
change to CMPs for violations of the
Program Fraud Civil Remedies Act is
the change in the CPI from June 2000
(the date it was last adjusted for
inflation) until June 2007, which is a
difference of 21 percent. In the case of
penalties greater than $1,000, but less
than or equal to $10,000, inflation
adjustment increases are to be rounded
to the nearest multiple of $1,000.
Increases are to be rounded to the
nearest multiple of $10,000 in the case
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54671
of penalties greater than $100,000 but
less than or equal to $200,000.
II. Discussion
Section 234 of the AEA limits civil
penalties for violations of the Atomic
Energy Act to $100,000 per day per
violation. In 1996, under the Debt
Collection Improvement Act (DCIA), the
NRC adjusted this figure to $110,000.
The DCIA also amended the Federal
Civil Penalties Inflation Adjustment Act
of 1990 to require that the head of each
agency adjust the CMPs within the
jurisdiction of the agency for inflation at
least once every four years. Therefore, in
2000 the NRC adjusted the maximum
CMPs to $120,000, and in 2004 the NRC
adjusted the maximum CMPs to
$130,000. The NRC is required to adjust
the CMPS within its jurisdiction again
this year. After this mandatory
adjustment for inflation, the adjusted
maximum CMP for a violation of the
AEA or any regulation or order issued
under the AEA will be $140,000 per day
per violation (rounding the amount of
the inflation adjustment increase, 9.8
percent, to the nearest multiple of
$10,000). Thus, the NRC is amending
§ 2.205 to reflect a new maximum CMP
under the AEA in the amount of
$140,000 per day per violation. The
amended maximum CMP applies only
to violations that occur after the
effective date of this final rule.
Monetary penalties under the Program
Fraud Civil Remedies Act, 31 U.S.C.
3801 and 3802, and the NRC’s
implementing regulations, § 13.3(a)(1)
and (b)(1) are currently limited to
$6,000. In 2004, when the NRC last
adjusted CMPs for inflation, these
penalties did not meet the statutory
criteria to be changed because the
inflation increase was not large enough.
The NRC must adjust CMPs for the
change in inflation since the last time
the CMPs were adjusted. For the
Program Fraud Civil Remedies Act
CMPs, this means the change in the CPI
since 2000; that difference is 21 percent.
When this change is applied to
§ 13.3(a)(1) and (b)(1) (and rounding to
the nearest multiple of $1,000) the new
penalty amount will be $7,000. Thus,
the NRC is amending § 13.3(a)(1) and
(b)(1) by increasing the maximum civil
penalty for each false statement or claim
under the Program Fraud Civil
Remedies Act from $6,000 to $7,000.
The amended CMP applies only to
violations that occur after the effective
date of this final rule.
The Commission has no discretion to
set alternative levels of adjusted civil
penalties because the amount of
inflation adjustment must be calculated
by a formula established by statute.
E:\FR\FM\23SER1.SGM
23SER1
]]>Agencies
[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54668-54671]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22146]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS-FV-08-0052; FV08-922-1 FR]
Apricots Grown in Designated Counties in Washington; Increased
Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
Washington Apricot Marketing Committee (Committee) for the 2008-09 and
subsequent fiscal periods from $1.50 to $2.00 per ton for Washington
apricots. The Committee is responsible for local administration of the
marketing order regulating the handling of apricots grown in designated
counties in Washington. Assessments upon handlers of apricots are used
by the Committee to fund reasonable and necessary expenses of the
program. The fiscal period for the marketing order begins April 1 and
ends March 31. The assessment rate remains in effect indefinitely
unless modified, suspended or terminated.
DATES: Effective Date: September 24, 2008.
FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue,
suite 385, Portland, OR 97204; Telephone: (503) 326-2724; Fax: (503)
326-7440; or e-mail: Robert.Curry@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,
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. 922 (7 CFR 922), as amended, regulating the handling of apricots
grown in designated counties in Washington, 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, apricot
handlers in designated counties in Washington 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 Washington apricots beginning
April 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
[[Page 54669]]
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 increases the assessment rate established for the
Committee for the 2008-09 and subsequent fiscal periods from $1.50 to
$2.00 per ton for Washington apricots handled.
The 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 apricots in designated counties
in Washington. 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 at a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2007-08 and subsequent fiscal periods, the Committee
recommended, and the USDA approved, an assessment rate of $1.50 per ton
of apricots handled. This rate continues in effect from fiscal period
to fiscal period unless modified, suspended, or terminated by USDA upon
recommendation and information submitted by the Committee or other
information available to USDA.
The Committee met on May 15, 2008, and unanimously recommended
2008-09 expenditures of $7,093. In comparison, last year's budgeted
expenditures were $6,743. In addition, the Committee recommended that
the $1.50 per ton assessment rate approved for the 2007-08 and
subsequent fiscal periods be increased by $0.50 to $2.00 per ton of
apricots handled. The Washington apricot production area experienced
freezing weather in April this year that was predicted to have a
significant impact on apricot production. As a result, the Committee
estimated a total fresh crop of only 3,650 tons for this season--
significantly less than the 6,620 tons of fresh apricots reported to
the Committee by industry handlers last season. Due to this anticipated
shortfall, the Committee recommended that the assessment rate be
increased by $0.50 to help ensure that budgeted expenses are adequately
covered.
The major expenditures recommended by the Committee for the 2008-09
fiscal period include $4,800 for the management fee, $1,000 for
Committee travel, $100 for compliance, and $1,193 for equipment
maintenance, insurance, bonds, and miscellaneous expenses. In
comparison, major expenditures for the 2007-08 fiscal period included
$4,800 for the management fee, $1,000 for travel, $500 for the annual
financial audit, $100 for compliance, and $343 for equipment
maintenance, insurance, bonds, and miscellaneous expenses.
The assessment rate recommended by the Committee was derived by
dividing the anticipated expenses of $7,093 by the projected 2008 3,650
ton apricot production. Applying the $2.00 per ton assessment rate to
this crop estimate should provide $7,300 in assessment income. Although
the 3,650 ton crop estimate reflects the Committee's best current
assessment of the damage the late-season freezing temperatures may have
had on production this season, Committee members expressed some concern
that production could potentially end up even shorter. Because of the
crop estimate uncertainty, the Committee felt that the $2.00 per ton
assessment rate is warranted even though the projected fiscal year-end
reserve balance at this time is $8,173. Although this amount is
slightly higher than the recommended budget, the reserve would still be
within the order's limit of approximately one fiscal period's
operational expenses.
The assessment rate established 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 effective 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 the Committee's meetings are available from the Committee or
USDA. The Committee's meetings are open to the public and interested
persons may express their views at these meetings. USDA will evaluate
the Committee's 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
2008-09 budget has been reviewed and approved by USDA. Subsequent
fiscal period budgets will also 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.
There are approximately 300 apricot producers within the regulated
production area and approximately 22 regulated handlers. 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.
The Washington Agricultural Statistics Service has prepared a
report showing that the total 7,000 ton apricot utilization sold for an
average of $1,120 per ton in 2007 with a total farm-gate value of
approximately $7,827,000. Based on the number of producers in the
production area (300), the average annual producer revenue from the
sale of apricots in 2007 can thus be estimated at approximately
$26,090. In addition, based on information from the Committee and
USDA's Market News Service, 2007 f.o.b. prices ranged from $18.00 to
$20.00 per 24-pound loose-pack container, and from $20.00 to $22.00 for
2-layer tray-pack containers. Approximately 40 percent of the 2007
6,620 ton fresh pack-out was packed in 24-pound loose-pack containers
while the remainder was packed in 2-layer tray-pack containers
(weighing an average of about 20 pounds each). On the high end, this
would have grossed the 22 apricot handlers approximately $13,151,700 in
f.o.b. receipts for the 2007 crop--leaving average receipts for
[[Page 54670]]
each handler well below the SBA's $6,500,000 threshold for small
businesses. Therefore, the majority of producers and handlers of
Washington apricots may be classified as small entities.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 2008-09 and subsequent
fiscal periods from $1.50 to $2.00 per ton for apricots handled under
the order's authority. The Committee also unanimously recommended 2008-
09 expenditures of $7,093. With a 2008-09 Washington apricot crop
estimate of 3,650 tons, the Committee anticipates assessment income of
about $7,300. Due to the sharply smaller crop expected this season, the
Committee recommended the assessment rate increase to help ensure that
budgeted expenses are adequately covered.
Although there continues to be uncertainty this season regarding
production totals due to the mid-spring freezing weather, income
derived from handler assessments should adequately cover budgeted
expenses. Because of the crop estimate uncertainty, the Committee felt
the $2.00 per ton assessment rate is warranted even though the
projected fiscal year-end reserve balance at this time is $8,173.
Although this amount is slightly higher than the recommended budget,
the reserve would still be within the order's limit of approximately
one fiscal period's operational expenses.
The major expenditures recommended by the Committee for the 2008-09
fiscal period include $4,800 for the management fee, $1,000 for
Committee travel, $100 for compliance, and $1,193 for equipment
maintenance, insurance, bonds, and miscellaneous expenses. In
comparison, major expenditures for the 2007-08 fiscal period included
$4,800 for the management fee, $1,000 for travel, $500 for the annual
financial audit, $100 for compliance, and $343 for equipment
maintenance, insurance, bonds, and miscellaneous expenses.
The Committee discussed alternatives to this increase in the
assessment rate. Leaving the assessment rate at $1.50 per ton was
discussed, but not seriously considered since such a rate would not
have earned adequate income and would have thus significantly depleted
the Committee's reserves. Although a rate of assessment somewhat less
than the recommended $2.00 per ton rate would have potentially covered
the recommended expenses, the Committee chose the higher rate due to
the uncertainty the members felt regarding the 3,650 ton crop estimate.
The mid-April freeze experienced in the growing regions this year left
doubt in some members minds that the final pack-out this season will
even reach the 3,650 ton estimate.
A review of historical information and preliminary information
pertaining to the upcoming crop year indicates that the producer price
for the 2008-09 season could average about $1,000 per ton for fresh
Washington apricots. Therefore, the estimated assessment revenue for
the 2008-09 fiscal period as a percentage of total producer revenue is
0.2 percent for Washington apricots.
This action increases 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 the
additional costs may be passed on to producers. However, these costs
would be offset by the benefits derived by the operation of the order.
In addition, the Committee's meeting was widely publicized
throughout the Washington apricot industry and all interested persons
were invited to attend and participate in Committee deliberations on
all issues. Like all Committee meetings, the May 15, 2008, meeting was
a public meeting and all entities, both large and small, were able to
express views on the issues. Finally, interested persons were invited
to submit information on the regulatory and informational impacts of
this action on small businesses.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large Washington apricot 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. Additionally, 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.
A proposed rule concerning this action was published in the Federal
Register on August 18, 2008 (73 FR 48156). Committee staff made copies
of the proposed rule available to Committee members, handlers and other
interested persons. The proposed rule was also made available through
the Internet by USDA and the Office of the Federal Register. A 15 day
comment period ending September 2, 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 order may be viewed at: https://
www.ams.usda.gov/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 police 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
2008-09 fiscal period began on April 1, 2008, and the order requires
that the assessment rate for each fiscal period apply to all assessable
apricots handled during such fiscal period; (2) the Washington apricot
harvest and shipping season is currently under way; (3) the Committee
needs to have sufficient funds to pay its expenses, which are incurred
on a continuous basis; (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; and (5) a 15-day
comment period was provided for in the proposed rule.
List of Subjects in 7 CFR Part 922
Apricots, Marketing agreements, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 922 is amended as
follows:
PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON
0
1. The authority citation for 7 CFR part 922 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 922.235 is revised to read as follows:
Sec. 922.235 Assessment rate.
On or after April 1, 2008, an assessment rate of $2.00 per ton is
established for the Washington Apricot Marketing Committee.
[[Page 54671]]
Dated: September 17, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-22146 Filed 9-22-08; 8:45 am]
BILLING CODE 3410-02-P
