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

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

855 

Vol. 74, No. 6 

Friday, January 9, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 966 

[Docket No. AMS–FV–08–0081; FV08–966– 

1 FR] 

Tomatoes Grown In Florida; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

Florida Tomato Committee (Committee) 

for the 2008–09 and subsequent fiscal 

periods from $0.0325 to $0.0375 per 25- 

pound carton of tomatoes handled. The 

Committee locally administers the 

marketing order which regulates the 

handling of tomatoes grown in Florida. 

Assessments upon tomato handlers are 

used by the Committee to fund 

reasonable and necessary expenses of 

the program. The fiscal period begins 

August 1 and ends July 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: January 12, 2009. 

FOR FURTHER INFORMATION CONTACT: 

William G. Pimental, Marketing 

Specialist, or Christian D. Nissen, 

Regional Manager, Southeast Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA; 

Telephone: (863) 324–3375 Fax: (863) 

325–8793, or E-mail: 

William.Pimental@usda.gov or 

Christian.Nissen@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 final 

rule is issued under Marketing 

Agreement No. 125 and Order No. 966, 

both as amended (7 CFR part 966), 

regulating the handling of tomatoes 

grown in Florida, 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, Florida tomato 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 tomatoes 

beginning on August 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 increases the assessment 

rate established for the Committee for 

the 2008–09 and subsequent fiscal 

periods from $0.0325 to $0.0375 per 25- 

pound carton of tomatoes. 

The Florida tomato 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 of 

Florida tomatoes. 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 2007–08 and subsequent fiscal 

periods, the Committee recommended, 

and USDA approved, an assessment rate 

that would continue 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 August 14, 

2008, and unanimously recommended 

2008–09 expenditures of $2,438,200 and 

an assessment rate of $0.0375 per 25- 

pound carton of tomatoes. In 

comparison, last year’s budgeted 

expenditures were $2,101,000. The 

assessment rate of $0.0375 is $0.005 

higher than the rate currently in effect. 

The assessment increase is needed to 

offset the 2008–09 increase in education 

and promotion expenses, salaries, and 

employee retirement. Without the 

increase in the assessment rate, the 

Committee will need to utilize an 

additional $250,000 from the authorized 

reserve. Therefore, the Committee voted 

to increase the assessment rate. 

The major expenditures 

recommended by the Committee for the 

2008–09 year include $1,200,000 for 

education and promotion, $505,500 for 

salaries, $320,000 for research, and 

$77,000 for employee retirement. 

Budgeted expenses for these items in 

2007–08 were $900,000, $467,000, 

$320,000, and $71,000, respectively. 

The assessment rate recommended by 

the Committee was derived by dividing 

anticipated expenses, less anticipated 

funds from the USDA Market Access 

Program (MAP), by expected shipments 

of Florida tomatoes. Tomato shipments 

for the year are estimated at 50 million 

25-pound cartons and should provide 

$1,875,000 in assessment income. 


yshivers on PROD1PC62 with RULES
856 Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Rules and Regulations 

Income derived from handler 

assessments, along with interest income, 

MAP funds, and funds from the 

Committee’s authorized reserve, will be 

adequate to cover budgeted expenses. 

Funds in the reserve (currently 

approximately $593,000) will be kept 

within the maximum permitted by the 

order of not to exceed one fiscal period’s 

expenses as stated in § 966.44 of the 

order. 

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 

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 2008–09 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 (5 U.S.C. 

601–612) (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 100 

producers of tomatoes in the production 

area and approximately 70 handlers 

subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (SBA) as those 

having annual receipts less than 

$750,000, and small agricultural service 

firms are defined as those whose annual 

receipts are less than $7,000,000 (13 

CFR 121.201). 

Based on industry and Committee 

data, the average annual price for fresh 

Florida tomatoes during the 2007–08 

season was approximately $13.71 per 

25-pound container, and total fresh 

shipments for the 2007–08 season were 

45,177,457 25-pound cartons of 

tomatoes. Committee data indicates that 

approximately 25 percent of the 

handlers handle 94 percent of the total 

volume shipped outside the regulated 

area. Based on the average price, about 

75 percent of handlers could be 

considered small businesses under 

SBA’s definition. In addition, based on 

production data, grower prices as 

reported by the National Agricultural 

Statistics Service, and the total number 

of Florida tomato growers, the average 

annual grower revenue is below 

$750,000. Thus, the majority of handlers 

and producers of Florida tomatoes 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 

$0.0325 to $0.0375 per 25-pound carton 

of tomatoes. The Committee 

unanimously recommended 2008–09 

expenditures of $2,438,200 and an 

assessment rate of $0.0375 per 25-pound 

carton. The assessment rate of $0.0375 

is $0.005 higher than the 2007–08 rate. 

The quantity of assessable tomatoes for 

the 2008–09 season is estimated at 50 

million 25-pound cartons. Thus, the 

$0.0375 rate should provide $1,875,000 

in assessments. Income derived from 

handler assessments, along with interest 

income and funds from the Committee’s 

authorized reserve, and other income, 

should be adequate to cover budgeted 

expenses. 

The major expenditures 

recommended by the Committee for the 

2008–09 year include $1,200,000 for 

education and promotion, $505,500 for 

salaries, $320,000 for research, and 

$77,000 for employee retirement. 

Budgeted expenses for these items in 

2007–08 were $900,000, $467,000, 

$320,000, and $71,000, respectively. 

The assessment increase is needed to 

offset the 2008–09 increase in education 

and promotion expenses, salaries, and 

employee retirement. Without the 

increase in the assessment rate, the 

Committee would need to utilize an 

additional $250,000 from the authorized 

reserve. Therefore, the Committee voted 

to increase the assessment rate. 

The Committee reviewed and 

unanimously recommended 2008–09 

expenditures of $2,438,200, which 

included increases in education and 

promotion, salaries, and employee 

retirement. Prior to arriving at this 

budget, the Committee considered 

information from various sources, such 

as the Committee’s Executive 

Subcommittee, Finance Subcommittee, 

Research Subcommittee, and Education 

and Promotion Subcommittee. 

Alternative expenditure levels were 

discussed by these groups based upon 

the relative value of various education 

and promotion projects to the tomato 

industry. The assessment rate of $0.0375 

per 25-pound container of assessable 

tomatoes was determined by examining 

the anticipated expenses, expected 

shipments, MAP funds, and available 

reserves. The recommended assessment 

rate should generate $1,875,000 in 

income. Considering income from 

assessments, interest, and other sources, 

total income will be approximately 

$27,000 below the anticipated expenses, 

which the Committee determined to be 

acceptable. 

A review of historical information and 

preliminary information pertaining to 

the 2008–09 fiscal period indicates that 

the grower price for the 2008–09 season 

could range between $7.98 and $12.95 

per 25-pound carton of tomatoes. 

Therefore, the estimated assessment 

revenue for the 2008–09 season as a 

percentage of total grower revenue 

could range between 0.3 and 0.5 

percent. 

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 are 

offset by the benefits derived by the 

operation of the marketing order. In 

addition, the Committee’s meeting was 

widely publicized throughout the 

Florida tomato industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the August 

14, 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 Florida tomato 

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. As noted in the initial 

regulatory flexibility analysis, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this final rule. 


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Rules and Regulations 857 

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 October 20, 2008 (73 FR 

62218). Copies of the proposed rule 

were mailed or sent via facsimile to all 

Committee members and Florida tomato 

handlers. Finally, the proposal was 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 30-day comment period 

ending November 19, 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.fetch

TemplateData.do?template=

TemplateN&page=MarketingOrders

SmallBusinessGuide. Any questions 

about the compliance guide should be 

sent to Jay Guerber at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

After consideration of all relevant 

material presented, including the 

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 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 

handlers are already receiving tomatoes 

from the 2008–09 crop, and the 

marketing order requires that the rate of 

assessment for each fiscal period apply 

to all assessable tomatoes handled 

during such period. In addition, the 

Committee needs to have sufficient 

funds to pay its expenses which are 

incurred on a continuous basis. Further, 

handlers are aware of this rule which 

was recommended at a public meeting. 

Also, a 30-day comment period was 

provided for in the proposed rule. 

List of Subjects in 7 CFR Part 966 

Marketing agreements, Reporting and 

recordkeeping requirements, Tomatoes. 

■ For the reasons set forth in the 

preamble, 7 CFR part 966 is amended as 

follows: 

PART 966—TOMATOES GROWN IN 

FLORIDA 

■ 1. The authority citation for 7 CFR 

part 966 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 966.234 is revised to read 

as follows: 

§ 966.234 Assessment Rate. 

On and after August 1, 2008, an 

assessment rate of $0.0375 per 25-pound 

carton is established for Florida 

tomatoes. 

Dated: January 5, 2009. 

James E. Link, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–174 Filed 1–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 1 

Federal Civil Penalties Inflation 

Adjustment Act 

AGENCY: Federal Trade Commission 

(FTC). 

ACTION: Final rule amendments. 

SUMMARY: The FTC is making 

adjustments to certain civil penalty 

amounts within its jurisdiction, as 

required by law. These adjustments 

reflect inflation since the penalty 

amounts were last adjusted. 

EFFECTIVE DATE: February 9, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen R. Johnson, Attorney, Office of 

General Counsel, FTC, 600 

Pennsylvania Avenue, NW, Washington, 

DC 20580, (202) 326-2869, 

kjohnson2@ftc.gov. 

SUPPLEMENTARY INFORMATION: As 

required at least once every four years 

by the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (FCPIAA), 28 

U.S.C. 2461 note, as amended by the 

Debt Collection Improvement Act of 

1996, Pub. L. 104-134, 31001(s)(1), 110 

Stat. 1321-373, the FTC is making 

certain regulatory adjustments to civil 

penalty amounts within its jurisdiction. 

The civil penalty amounts adjusted by 

the FTC are set forth in Commission 

Rule 1.98, 16 CFR 1.98. The FTC 

published the original adjustments in 

1996. See 61 FR 54548 (Oct. 21, 1996), 

55840 (Oct. 29, 1996). No adjustments 

were warranted under the law in 2000. 

See 65 FR 69665 (Nov. 20, 2000). The 

FTC published adjustments to civil 

penalties under the Clayton Act section 

11(l) and the Energy Policy and 

Conservation Act section 525(a) in 2004. 

See 69 FR 76611 (Dec. 22, 2004). 

Adjustments are based on the increase 

in the Consumer Price Index (CPI) 

between June of the year in which the 

prior adjustment was made and June of 

the year preceding the year in which the 

adjustment is being made. Thus, for 

civil penalties adjusted in 2004, the 

relevant CPI period is between June, 

2004 and June, 2007. Within that time 

frame, the CPI has increased from 189.7 

to 208.352, or 9.8%. Applying this 

percentage increase to currently 

adjusted civil penalty amounts, the FTC 

is adjusting civil penalty amounts 

currently set at $6,500 under two 

statutes: the Clayton Act section 11(l), 

for violations of cease-and-desist orders 

issued under section 11(b) of that Act; 

and section 525(a) of the Energy Policy 

and Conservation Act, for recycled oil 

labeling violations. Each will be 

adjusted to $7,500, in accordance with 

the rounding rules of the adjustment 

statute. 

For civil penalties that were last 

adjusted in 1996, the relevant CPI 

period is between June, 1996 and June, 

2007. During this period, the CPI 

increased from 156.7 to 208.352 for a 

total percentage increase of 32.96%. 

Applying this percentage increase to the 

civil penalties as they were adjusted in 

1996 results in an increase from $11,000 

to $16,000 for civil penalties in the 

following statutes: premerger 

notification violations under the HartScott-Rodino Antitrust Improvements 

Act section 7A(g)(1), unfair or deceptive 

acts or practices under the FTC Act 

sections 5(l), (m)(1)(A) and (m)(1)(B), 

and energy conservation violations 

under the Energy Policy and 

Conservation Act section 525(b). 

Further, applying the CPI increase to 

credit reporting violations under the 

Fair Credit Reporting Act section 

621(a)(2) raises that penalty amount 

from $2,500 to $3,500. 

The FTC is amending Commission 

Rule 1.98 by modifying paragraphs (a) 

through (e), (l) and (m) and adding 

paragraph (n) to reflect these 

adjustments, which will become 

effective thirty days following 

publication. 

The FCPIAA rounding rules do not 

authorize the FTC at this time to 

increase the amounts of the other civil 

penalties within its jurisdiction. 

Increases in civil penalties of greater 

than $100 and less than or equal to 

$1,000 must be in $100 increments, and 

the increase in the CPI was not high 

enough to round up any adjustment to 

$100. Accordingly, all other paragraphs 

of Commission Rule 1.98 remain 

unchanged. 


yshivers on PROD1PC62 with RULES