55146 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

excess caseload shall be divided equally

among State agencies whose approved

requests exceed their shares.

(iv) Requests from State agencies to

initiate program service for women,

infants, and children, and the elderly

shall be addressed in the following

manner. Requests to initiate service to

women, infants, and children shall

receive priority over requests to initiate

service to the elderly.

(A) State agencies with approved

State plans incorporating requests for

program initiation to provide service to

women, infants, and children shall be

assigned caseload in the same manner

described in paragraph (a)(2)(iii)(B) of

this section.

(B) State agencies with approved State

plans incorporating requests for

program initiation to provide service to

the elderly shall be assigned caseload in

the same manner described in paragraph

(a)(2)(iii)(C) of this section.

* * * * *

§ 247.24 [Removed]

4. Section 247.24 is removed.

Dated: October 15, 1997.

Yvette S. Jackson,

Acting Administrator, Food and Consumer

Service.

[FR Doc. 97–28060 Filed 10–22–97; 8:45 am]

BILLING CODE 3410–30–U

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV97–930–1 IFR]

Tart Cherries Grown in the States of

Michigan, New York, Pennsylvania,

Oregon, Utah, Washington, and

Wisconsin; Assessment Rate and

Establishment of Late Payment and

Interest Charges on Delinquent

Assessments

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

establishes an assessment rate for the

1997–98 and subsequent fiscal periods

to cover expenses incurred by the

Cherry Industry Administrative Board

(Board) under Marketing Order No. 930.

This rule also establishes an interest rate

and late payment charge on delinquent

assessments owed by handlers under

the tart cherry marketing order. The

Board is responsible for local

administration of the marketing order.

Authorization to assess tart cherry

handlers will enable the Board to incur

expenses that are reasonable and

necessary to administer the program.

The interest rate and late payment

charges will contribute to the efficient

operation of the program by ensuring

adequate funds are available to cover

budgeted expenses incurred under the

marketing order. The 1997–98 fiscal

period covers the period July 1, through

June 30.

DATES: Effective on October 24, 1997.

Comments received by December 22,

1997 will be considered prior to

issuance of a final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456; Fax: (202)

720–5698. All comments should

reference the docket number and the

date and page number of this issue of

the Federal Register and will be made

available for public inspection in the

Office of the Docket Clerk during regular

business hours.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella, Marketing

Specialist, and Kenneth G. Johnson,

Regional Manager, DC Marketing Field

Office, Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491, Fax (202)

720–5698. Small businesses may request

information on compliance with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491; Fax (202)

720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 930 (7 CFR part 930),

regulating the handling of tart cherries

grown in the States of Michigan, New

York, Pennsylvania, Oregon, Utah,

Washington, and Wisconsin, hereinafter

referred to as the ‘‘order.’’ The

marketing agreement and order are

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

(Department) 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, tart cherry 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 tart cherries

beginning July 1, 1997, and continuing

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 the Secretary 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 the Secretary 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 the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after the date of the

entry of the ruling.

The tart cherry marketing order in

section 930.31 provides that one of the

duties of the Board is to submit to the

Secretary a budget for each fiscal period,

prior to the beginning of such period,

including a report explaining the items

appearing therein and a

recommendation as to the rates of

assessments for such period. The

recommendations concerning the

proposed assessment rate are discussed

in a public meeting. Thus, all directly

affected persons have an opportunity to

participate and provide input.

At its meeting on January 8 and 9,

1997, the Board unanimously

recommended expenditures of

$650,000, and an assessment rate of

$0.0025 per pound of tart cherries

handled during the 1997–1998 crop year

and subsequent crop years. The

recommended expenditure figure covers

expenses for the 1997–98 fiscal period,

as well as expenses incurred in

connection with the start-up of the

program beginning on January 1, 1997,

when the first public meeting of the

newly formed Board took place. The tart

cherry marketing order became effective

on September 25, 1996. The Department

has approved the Board’s 1997–98

budget of expenses. Until assessment

income is available, the Board may

obtain funds through a lending

institution to fund Board operations.
Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55147

The Board will begin to assess

handlers as soon as possible after the

effective date of this interim final rule,

and all assessments will be due to the

Board office by November 30, 1997, for

this season only. Future assessment

payments will be due to the Board office

by October 1. Major expenditures

recommended by the Board for the

1997–98 fiscal period, ending June 30,

1998, and expenditures for the prior six

months, are $25,000 for interest,

$175,000 for Board meeting expenses,

$150,000 for salaries, $100,000 for

administration, and $200,000 for

compliance. For the six month period

from January 1, 1997, through June 30,

1997, the expenses were $59,000.

The assessment rate recommended by

the Board was derived by dividing

anticipated expenses by expected

shipments of tart cherries. Tart cherry

shipments for the 1997–98 crop year

were estimated at 260 million pounds

and were projected to provide $650,000

in assessment income which, along with

interest income, should have been

adequate to cover budgeted expenses. At

this time, actual production figures are

available. Crop production for the 1997–

98 season is now projected at

278,989,653 pounds. Assessment

income, based on this crop, will be

adequate to cover this year’s expenses,

even with the reduced assessment rate

for juice, juice concentrate and puree.

Funds in any reserve will be kept within

the current approximately one year’s

operational expenses permitted by the

order.

This interim final rule establishes an

interest rate of 12 percent per annum

and a late payment charge equal to 10

percent of the unpaid balance of the

assessment amount due. The interest

rate will be applied to any assessment

not paid within 30 days of the October

1 due date. However, the October 1 date

will be extended to November 30, 1997,

for the 1997–98 crop year only. The late

payment fee on the unpaid assessment

balance by a handler will be assessed 90

days after the October 31 due date for

this season and October 1 for future

seasons.

Section 930.41(a) of the marketing

order provides for the payment by

handlers of a pro-rata share of the cost

of administering the program under the

order. The payment is in the form of a

uniform assessment rate applied to each

handler’s cherry acquisitions. In

addition, section 930.41(f) provides that

assessments will be calculated on the

basis of pounds handled provided that

the formula adopted by the Board and

approved by the Secretary for

determining the rate of assessment will

compensate for differences in the

number of pounds of cherries utilized

for various cherry products and the

relative market values of such cherry

products.

Section 930.41 also provides that if a

handler does not pay an assessment

within the time prescribed by the Board,

the assessment may be subject to an

interest or late payment charge, or both.

A new section 930.141, specifies that

assessments be subject to an interest

charge of 1 percent per month on any

unpaid assessment balance beginning 30

days from the due date prescribed by

the Board. The Board requires that all

assessments be paid by October 1 of

each crop year. However, assessments

will be due on November 30, 1997, for

the 1997–98 season only. The October 1

date specified herein will apply to all

future seasons.

Assessments are the main source of

funds to pay Board expenses. The

failure of handlers to pay assessment

obligations promptly results in added

expense and operational problems for

the Board. Authority was placed in the

order to levy interest and late payment

charges on delinquent assessments. The

interest rate and late payment charges in

this interim final rule are similar to

those established under other marketing

orders. To attempt to collect delinquent

assessments, the Board will incur the

added expense of sending out additional

invoices and contacting each delinquent

handler by phone, in person, or by fax.

Nonpayment or late payment of

assessments hampers the operation of

the Board.

Handlers will have ample time to pay

their assessments and avoid incurring

the additional charges. Any amount

paid by the handler will be credited

upon receipt in the Board office.

Interest and late payment charges will

provide incentive for handlers to remit

assessments in a timely manner, with

the intent of creating a fair and equitable

process among all industry handlers. It

will not impose any costs on handlers

who pay their assessments on time, and

will contribute to the efficient

administration of the program.

In its deliberations, the Board

discussed lower rates when

recommending the interest rate and late

payment charge but decided that

prompt payment of assessments by

handlers was crucial to the operation of

the program. Therefore, the Board

recommended an interest rate and late

payment charge deemed to be sufficient

to serve as an incentive to handlers to

be prompt with their payment of

assessments.

A proposed rule concerning this

action was issued by the Department on

June 27, 1997, and published in the

Federal Register on Thursday, July 3,

1997 (62 FR 36020). The rule was made

available through the Internet by the

Office of the Federal Register. A 30-day

comment period, which ended on

August 4, 1997, was provided to allow

interested persons to respond to the

proposal.

Two comments were received during

the comment period in response to the

proposal. The commenters, representing

a tart cherry grower—handler, and an

industry organization, opposed the

proposed rule.

The first commenter urged the

Department to reject the proposed rule

because the commenter is concerned

that the Board may be improperly

constituted at this time and unable to

administer any program under 7 CFR

part 930 in a legitimate manner. The

commenter stated that some of the

Board members’ participation in certain

sales constituencies, should be

addressed. The commenter further

stated that no decision recommended to

the Secretary by the Board should be

finalized or be allowed to be imposed

upon the industry in an interim final

fashion.

The Board was properly nominated in

accordance with Department

procedures, and selected on December

20, 1996. The Board recommended an

assessment rate and late payment and

interest charge at its January 1997

meeting. At that time, one of the sales

constituencies in question had not yet

been established. Concerns which have

been raised about the constituency and

questions about the eligibility of certain

members to serve on the Board are

currently under review by the

Department.

The second commenter raised eight

issues in his comment. First, the

commenter stated that the public and

the industry cannot respond effectively

to the proposed assessment without

knowing how the money will be used,

and that it is impossible to determine,

for example, whether the money will be

spent in conformity with the marketing

order. The commenter also stated that

the fact that the proposed assessment

rate is formulated and discussed at a

public meeting and that affected persons

have an opportunity to participate and

provide input is irrelevant.

The proposed rule contained a

description of the major expenditures

recommended by the Board which is

repeated here. The Board’s

recommendation regarding such

expenditures are subject to approval by

the Department. Furthermore, the

Department has oversight responsibility

over marketing order committees to

ensure that marketing order funds,
55148 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

collected through handler assessments,

are spent in accordance with order

provisions. The public is provided the

opportunity to comment on whether the

assessment rate is at an appropriate

level to fund the activities of the Board.

In addition, since all meetings are

opened to the public, interested persons

can raise concerns and such concerns

can be discussed in an open forum. This

allows another opportunity for public

input in this rulemaking procedure.

Second, while recognizing that the

assessment is subject to legal challenge

and judicial review, it is the

commenters view that, under the

regulations, handlers should receive a

refund if their challenge is successful.

The commenter asked that the proposal

be modified to provide for such refund

and to ban interest and late payments

(which the commenter called a ‘‘tax’’)

while a good faith legal challenge is

pending.

The Act provides that handlers

regulated by marketing orders pay their

pro-rata share of expenses, as the

Secretary may find are reasonable and

likely to be incurred during a specified

period for the maintaining and

functioning of the marketing order. It

does not impose any requirements

concerning refunds. Furthermore, late

charges and interest payments are not a

tax and are common in many of USDA’s

commodity programs.

Commenter’s third point in

opposition to the rule was that it cannot

be made retroactive to cherries already

received by handlers. The assessments

imposed by the rule are consistent with

provisions of the order which provide

for the payment of assessments on

cherries handled during a specified

fiscal period to cover costs of

administering the program. The order

further provides that, in the event it is

found that an increase in the assessment

rate is needed to cover expenses, such

increase would apply to all cherries

handled during the period. Therefore,

retroactivity is not at issue in this

rulemaking.

The fourth issue raised by the

commenter stated that the Department

has not published sufficient rules and

regulations designed to implement this

new marketing order. Therefore, the

industry cannot judge whether or not

the program is being administered in

accordance with the order so that it

should be supported with assessments.

It was also the commenter’s view that

there was ample time to develop

regulations through notice and comment

rulemaking and therefore interim final

rules should not be used.

The Board has worked diligently in

discussing and formulating rules and

regulations to implement authorities

under this new marketing order. It met

January, February, March, June and

September of 1997, and recommended

rulemaking actions at various meetings.

However, since this is a new program,

these recommendations needed to be

discussed at more than one meeting,

and in some instances, modified.

Therefore, there was not as much time

as the commenter suggests to develop

and publish the various rules necessary

to administer the program.

The fifth issue raised by the

commenter concerns the make-up of the

Board. The commenter states that most

Board members have become

disqualified because of their

membership in two cooperatives, and

that no corrective action has been taken

to resolve this matter.

The Department is aware of this issue

and it is currently under review. As

soon as such review is completed, the

Department will take any action which

is deemed necessary.

The sixth issue raised by the

commenter stated that the proposal

provides for assessments that will

continue from season to season. The

commenter stated that this is improper

especially since this is a new program.

The industry may not wish to fund

succeeding years’ budgets at this level,

especially if volume controls are not

used, or may wish to delete certain

budget items in their entirety.

As previously stated in the proposed

rule, this assessment rate established by

this interim final rule will continue in

effect until the Board recommends a

change to the assessment rate or the

Department sees a need for such a

change. If volume regulations are not

implemented during a crop year, the

Board would be asked to consider the

impact of that on its budget and whether

a decrease in the assessment rate is

warranted. The Department would then

issue a proposed rule recommending

establishment of a new assessment rate

for the tart cherry industry.

Seventh, the commenter stated that

the proposal improperly assumes that

the Secretary will impose volume

control, and includes at least $200,000

to fund such program. No such decision

has been made. The commenter further

states that no proposed rule regarding

volume regulation has ever been placed

in the Federal Register. The commenter

asserted that the proposed assessment

should be reduced to reflect the lack of

any volume control during the 1997–98

season.

The Board formulated its budget in

January 1997 and allocated funds for

compliance if volume regulation were

recommended and imposed. In the

absence of volume control, appropriate

adjustments can be made to the budget.

Finally, the commenter stated that the

12 percent interest rate and 10 percent

late payment penalty are excessive and

unreasonable. At most, the interest

charged should not exceed the marginal

rate charged to the Board for any actual

borrowings needed to meet current

needs. The commenter further stated

that the final rule should include a grace

period for handlers who are in good

faith experiencing financial difficulty.

In addition, handlers should not have to

pay assessments until cherries are sold.

As previously stated, the Board

reviewed the interest rate and late

payment charge and decided that it had

to be large enough to be a penalty and

to encourage handlers to pay their

assessments on time. The rates

established are similar to those

established under other marketing

orders. Handlers will have until October

1 to pay their assessments which is

adequate time for handlers to plan for

such payment. Since handlers are

assessed uniformly, the due date should

be uniform across the industry. The

Board cannot wait for payment of

assessments while handlers are selling

their cherries at various times.

Accordingly, no changes will be made

to the proposed rule, based on the

comments received. However, the

Department is issuing this interim final

rule to provide an additional

opportunity for the public to comment

on the modification discussed below.

The order provides that when an

assessment rate based on the number of

pounds of cherries handled is

established it should provide for

differences in relative market values for

various cherry products. The discussion

of this provision in the order

promulgation record indicates that

proponents testified that high value

products such as frozen, canned, or

dried cherries would be assessed one

rate while cherries used to make low

value products such as juice, juice

concentrate or puree would be assessed

at one half that rate. Since the $0.0025/

pound assessment proposed by the

Board does not reflect such differences

in product value, the rule, as previously

proposed, will be modified and the

$0.0025/pound assessment rate will be

applicable to cherries used in products

other than juice, juice concentrate, or

puree. The USDA is modifying this

action to reflect the intent of the order

by setting a rate of $0.0125 per pound

for cherries used in juice, juice

concentrate or puree. This rate is based

on the evidence presented by the

proponents of the order. Interested

persons will have the opportunity to
Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55149

comment on this modified rule. If it is

determined the assessment rates do not

generate sufficient funds to cover

expenses, the order authorizes the

Secretary to increase the rate any time

during or after the fiscal period. The

Department and the Board will continue

to study this matter to see if any other

products should have different

assessment rates.

Data from the National Agricultural

Statistics Service (NASS) states that for

1996, utilization for juice, wine or

brined uses was 8.0 million pounds for

all districts covered under the marketing

order. The total processed amount for

tart cherries for the 1996 crop year was

256.1 million pounds. Juice, wine, or

brined represents about 3 percent of the

total processed crop. Data for this

season is not available at this time.

However, based on the data from the

previous season, it seems that juice,

juice concentrate and puree is a very

small percentage of the crop. Therefore,

the modification discussed above

should have an insignificant effect on

the monies collected for assessments

this season. As previously discussed the

Board could recommend an increase in

the assessment rate if such rate does not

generate the funds needed for this

season.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this action on small entities.

Accordingly, AMS has prepared this

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 the 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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 1,220

producers of tart cherries in the

production area and approximately 40

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of tart

cherry producers and handlers may be

classified as small entities.

This rule establishes an assessment

rate for the 1997–98 and subsequent

fiscal periods to cover expenses of the

Board at $0.0025 per pound of tart

cherries used in the production of tart

cherry products other than juice, juice

concentrate and puree, and $0.0125 per

pound for juice, juice concentrate and

puree. The Board unanimously

recommended expenditures of $650,000

for expenses incurred during the 1997–

98 fiscal period as well as for those

incurred during the start-up period

beginning January 1, 1997. From

January 1, 1997, through June 30, 1997,

the expenses for this six month period

was $59,000. The expenses for the

1997–98 fiscal period are projected at

$591,000. Tart cherry shipments for the

year were estimated at 260 million

pounds, which would have provided

$650,000 in assessment income

(260,000,000 pounds at $0.0025 per

pound) and would have been adequate

to cover this year’s expenses. At this

time, actual production figures are

available. Crop production for the 1997–

98 season is 278,989,653 pounds,

which, even with the reduced

assessment rate for juice, juice

concentrate, and puree, will provide

adequate assessment income to cover

this year’s expenses. Funds in any

reserve will be kept within the

maximum permitted under the order.

The Board discussed alternatives

when recommending the interest rate

and late payment charge. The Board

discussed lower rates, but decided that

prompt payment of assessments by

handlers is crucial to the operation of

the program. Therefore, the Board

recommended an interest rate and late

payment charge deemed to be sufficient

to serve as an incentive to handlers to

be prompt with their payment of

assessments.

Major expenditures recommended for

the 18-month period ending in June 30,

1998, include $25,000 for interest,

$175,000 for Board meeting expenses,

$150,000 for salaries, $200,000 for

program compliance. The $200,000 for

compliance was deemed necessary in

the event volume control regulations are

implemented during the 1997–98

season. The Board discussed setting an

assessment rate that would allow for

sufficient operation of a volume control

program for the upcoming season. With

regards to alternatives, this rate may be

adjusted by the Secretary, if necessary.

Accordingly, the Department believes

that since the assessments are necessary

to make funds available to cover the

initial costs of implementing the new

order, including operation of a volume

control program for the upcoming

season, if implemented, the assessment

rate will be as recommended by the

Board, and modified by the Department.

This action will not impose any

additional reporting or recordkeeping

on either small or large tart cherry

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. The new forms for the

operation of the order have been

approved by the Office of Management

and Budget (OMB) and have been

assigned OMB No. 0581–0177.

The interest and late payment charges

were also discussed at a public meeting.

The Board believes the interest charge is

a reasonable rate. The late payment fee

is high enough to discourage late

payments and encourage the timely

payment of assessments by handlers.

This interim final rule provides

incentive for handlers to remit

assessments in a timely manner, with

the intent of creating a fair and equitable

process among all industry handlers. It

will not impose any costs on handlers

who pay their assessments on time, and

will contribute to the efficient

administration of the program.

Handlers who do not pay their

assessments on time will be able to reap

the benefits of Board programs at the

expense of others. In addition, they will

be able to utilize funds for their own use

that will otherwise be paid to the Board

to finance Board programs. In effect, this

will provide handlers with an interest

free loan.

Implementing interest and late

payment charges will provide an

incentive for handlers to pay

assessments on time, which will

improve compliance with the order. It

will minimize actions taken against

handlers who fail to pay assessments on

time through administrative remedies or

the Federal courts. These remedies,

currently the only recourse against

handlers who fail to pay assessments,

can be costly and time consuming. This

interim final rule will remove any

economic advantage gained by those

handlers who do not pay on time, thus

helping to ensure a program that is

equitable to all. This is also consistent

with standard business practices.

While this interim final rule will

impose some additional costs on

handlers, the costs are in the form of

uniform assessments on all handlers.

Some of the additional costs may be

passed on to producers. However, these

costs will be offset by the benefits

derived by the operation of the

marketing order.

This interim final rule will not

impose any additional reporting or

recordkeeping requirements on either

small or large tart cherry handlers. As
55150 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

with all Federal marketing order

programs, reports and forms are

periodically reviewed to reduce

information requirements and

duplication by industry and public

sector agencies. The Department has not

identified any relevant Federal rules

that duplicate, overlap, or conflict with

this final rule. In addition, the Board’s

meeting was widely publicized

throughout the tart cherry industry and

all interested persons were invited to

attend the meeting and participate in

Board deliberations on all issues. Like

all Board meetings, the January 8 and 9,

1997, meeting was a public meeting and

all entities, both large and small, were

able to express views on these issues.

Finally, interested persons were invited

to submit information on the regulatory

and informational impacts of this final

rule on small businesses, and none were

received.

The assessment rate, interest rate and

late payment charge established in this

interim final rule will continue in effect

indefinitely unless modified,

suspended, or terminated by the

Secretary upon recommendation and

information submitted by the Board or

other available information.

Although the assessment rate, interest

rate and late payment charge will be

effective for an indefinite period, the

Board 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 and interest rates and

late payment charge. The dates and

times of Board meetings are available

from the Board or the Department.

Board meetings are open to the public

and interested persons may express

their views at these meetings. The

Department will evaluate Board

recommendations and other available

information to determine whether

modification of the assessment or

interest rates or late payment charge is

needed. Further rulemaking would be

undertaken as necessary. The Board’s

1997–98 budget has already been

approved by the Department to allow

the Board to expend funds that they

have borrowed. Budgets for subsequent

fiscal periods will be reviewed and, as

appropriate, approved by the

Department.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule.

A proposed rule concerning parts of

this action was issued by the

Department on June 27, 1997, and

published in the Federal Register on

July 3, 1997 (62 FR 36020). Copies of the

proposed rule were also mailed or sent

via facsimile to all tart cherry handlers.

Finally, the proposal was made

available through the Internet by the

Office of the Federal Register.

After consideration of all relevant

material presented, including the

information and recommendation

submitted by the Board 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.

This interim final rule invites

comments on an assessment rate and

establishment of late payment and

interest charges on delinquent

assessments. Any comments received

will be considered prior to finalization

of this rule.

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

found and determined upon good cause

that it is impracticable, unnecessary,

and contrary to the public interest to

give preliminary notice prior to putting

this rule into effect and that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register

because: (1) Handlers have received and

are still receiving 1997–98 crop cherries

from growers, the fiscal period began

July 1, and the assessment rate applies

to all cherries received during the 1997–

98 and subsequent fiscal periods; (2) the

Board has been operating using

borrowed funds and needs revenue to

repay such funds and to continue

administering the program; and (3)

handlers are aware of this rule, which

was recommended at a public meeting.

List of Subjects in 7 CFR Part 930

Marketing agreements, Reporting and

recordkeeping requirements, Tart

cherries.

For the reasons set forth in the

preamble, 7 CFR Part 930 is amended as

follows:

PART 930—TART CHERRIES GROWN

IN THE STATES OF MICHIGAN, NEW

YORK, PENNSYLVANIA, OREGON,

UTAH, WASHINGTON, AND

WISCONSIN

1. The authority citation for 7 CFR

Part 930 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. A new subpart—Administrative

Rules and Regulations and a new

section 930.141 are added to read as

follows:

Subpart—Administrative Rules and

Regulations

§ 930.141 Delinquent assessments.

(a) Pursuant to § 930.41, the Board

shall impose an interest charge on any

handler whose assessment payment has

not been received within 30 days from

the due date of October 1 of each crop

year. The interest rate shall be a rate of

one percent per month and shall be

applied to the unpaid assessment

balance for the number of days all or

any part of the unpaid balance is

delinquent beyond the 30-day payment

period. In addition to the interest

charge, the Board shall impose a late

payment charge on any handler whose

payment charge has not been received

within 90 days from the due date of

October 1. The late payment charge

shall be 10 percent of the unpaid

balance.

(b) Due date for the 1997–98 fiscal

period. For the 1997–98 fiscal period,

the due date for assessments shall be

November 30, 1997. Any interest charge

for late assessment payments shall be

accrued 30 days after the November 30

due date and any late fee shall be

accrued 90 days after the November 30

due date.

3. A new subpart—assessment rates

and a new section 930.200 are added to

read as follows:

Subpart—Assessment Rates

§ 930.200 Handler assessment rate.

On and after the effective date of this

rule, the assessment rate imposed on

handlers shall be $0.0025 per pound of

cherries handled for tart cherries grown

in the production area and utilized in

the production of tart cherry products

other than juice, juice concentrate, or

puree. The assessment rate for juice,

juice concentrate, and puree products

shall be $0.0125 per pound.

Dated: October 17, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 97–28130 Filed 10–20–97; 2:01 pm]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1412

RIN 0560–AF25

Amendment to the Production

Flexibility Contract Regulations

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Interim rule with request for

comments.

SUMMARY: This interim rule amends the

production flexibility contract

regulations found at 7 CFR part 1412.