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###### Department of Agriculture

###### Agricultural Marketing Service

          - 7 CFR Part 922
          - [Doc. No. AMS-FV-09-0038; FV09-922-1 FIR]

# AGENCY:

Agricultural Marketing Service, USDA.

# ACTION:

Affirmation of interim final rule as final rule.

# SUMMARY:

The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule which decreased the assessment rate established for the Washington Apricot Marketing Committee (Committee) for the 2009-2010 and subsequent fiscal periods from $2.00 to $1.00 per ton of apricots handled. The Committee locally administers the marketing order, which regulates the handling of apricots grown in designated counties in Washington. The decreased assessment rate is necessary to align the Committee's expected revenue with its proposed 2009-2010 budget.

# DATES:

*Effective Date: October 20, 2009*.                    

# FOR FURTHER INFORMATION CONTACT:

                        Robert 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@ams.usda.gov*                         or                         *GaryD.Olson@ams.usda.gov.*

                        Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:                         *http://www.ams.usda.gov/​AMSv1.0/​ams.fetchTemplateData.do?​template=​TemplateN&​page=​MarketingOrdersSmallBusinessGuide;​*                         or by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237;                               ( print page 53401)    *telephone:*                         (202) 720-2491;                         *fax:*                         (202) 720-8938; or                         *e-mail: Jay.Guerber@ams.usda.gov.*

# SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 922 (7 CFR part 922), 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.”

USDA is issuing this rule in conformance with Executive Order 12866.

Under the order, Washington apricot handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable apricots for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on April 1 and ends on March 31.

                    In an interim final rule published in the                     **Federal Register**                     on July 29, 2009, and effective July 30, 2009 (74 FR 37496, Doc. No. AMS-FV-09-0038; FV09-922-1 IFR), § 922.235 was amended by decreasing the assessment rate established for the Committee for the 2009-2010 and subsequent fiscal periods from $2.00 to $1.00 per ton of apricots handled. Because of the projections of a large crop this season, the Committee recommended the assessment rate decrease in order to maintain assessment income at a level proportionate to the current budget.                

## Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612), 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 producers of fresh apricots in the regulated production area and approximately 22 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.

Based on information compiled by the National Agricultural Statistics Service, the value of Washington's total apricot production in 2008 was $6,601,000. Based on 300 apricot producers, the average annual producer revenue from the sale of Washington apricots last year was approximately $22,000 per producer. In addition, based on Committee records and 2008 f.o.b. prices ranging from $20.00 to $26.00 per 24-pound loose-pack carton as reported by AMS Market News Service, the average annual revenue per handler in 2008 was $357,197. Therefore, the majority of Washington apricot producers and handlers may be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2009-2010 and subsequent fiscal periods from $2.00 to $1.00 per ton. The Committee unanimously recommended 2009-2010 expenditures of $7,843 and the decreased assessment rate at the May 21, 2009, meeting. The recommended assessment rate is $1.00 less than the rate in effect since the beginning of the 2008-2009 fiscal period. With an estimated 2009-2010 apricot crop of 7,600 tons, assessment income combined with funds from the Committee's monetary reserve should be adequate to cover budgeted expenses. The Committee recommended decreasing the assessment rate by 50 percent due to its estimate that the crop this season would approximately be twice the size of the crop actually harvested last year. With current crop and expense estimates, the Committee estimates that its reserve fund at the end of the 2009-2010 fiscal period will be about $8,300. This is equal to approximately one fiscal period's operational expenses as authorized by the order (§ 922.42).

The major expenditures recommended by the Committee for the 2009-2010 fiscal period include $4,800 for the management fee and $3,043 for operational expenses. In comparison, budgeted expenses for the 2008-2009 seasons were $4,800 and $2,293, respectively.

The Committee discussed alternatives to this rule. With the potential for a much larger crop this season, assessment rates over $1.00 per ton were not seriously considered because of the potential of generating too much income and thus increasing the reserve fund to an amount higher than program requirements allow.

A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2009-2010 season could average about $1,000 per ton. Therefore, the estimated assessment revenue for the 2009-2010 fiscal period as a percentage of total producer revenue could approximate 0.1 percent.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers of Washington apricots. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. The Committee's meeting was widely publicized throughout the Washington apricot industry and all interested persons were invited to attend and participate in the Committee's deliberations on all issues. Like all Committee meetings, the May 21, 2009, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This action does not impose additional reporting or recordkeeping requirements on 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. Furthermore, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

                    Comments on the interim final rule were requested by September 28, 2009. No comments were received. Therefore, for the reasons given in the interim final rule, USDA is adopting the interim final rule as a final rule without change. To view the interim final rule on the Internet, navigate to:                     *http://www.regulations.gov/​search/​Regs/​home.html#documentDetail?​R=​09000064809fd6a6.*

This action also affirms information contained in the interim final rule pertaining to Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).

                    After consideration of all relevant material presented, it is found that finalizing the interim final rule, without change, as published in the                     **Federal Register**                     (74 FR 37496, July 29, 2009) will tend to effectuate the declared policy of the Act.                

      ( print page 53402)    

# List of Subjects in 7 CFR Part 922

      - Apricots
      - Marketing agreements
      - Reporting and recordkeeping requirements

# PART 922—APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

Accordingly, the interim final rule amending 7 CFR part 922, which was published at 74 FR 37496 on July 29, 2009, is adopted as a final rule without change.

Dated: October 9, 2009.

Rayne Pegg,

Administrator, Agricultural Marketing Service.

[FR Doc. E9-25121 Filed 10-16-09; 8:45 am]

BILLING CODE 3410-02-P