Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 20019

control regulations. The Board has

approved a compliance plan at its

January 29–30, 1998, meeting.

Sixth, the commenter believes it is a

particularly serious matter that the

Board appears to be functioning under

the control of CherrCo, Inc., a new

entity in the tart cherry industry. The

Department is continuing to work with

the Board on this issue. This issue will

be addressed separately.

Finally, the commenter urges the

Department to insist that the Board

randomly conduct unannounced

compliance inspections prior to next

harvest to insure that reserves are

maintained as certified and that

required documentation is maintained

properly by handlers.

The Board has the authority to inspect

reserves and audit handlers as required.

The Board will audit handlers, as

appropriate, to ensure that proper

inventory reserves are being maintained.

Accordingly, one change will be made

to the rule as proposed, based on the

comments received.

After consideration of all relevant

material presented, including the

Board’s recommendation, and other

information, it is found that finalizing

the interim final rule, with a change, as

published in the Federal Register (63

FR 399, January 6, 1998), will tend to

effectuate the declared policy of the Act.

It is also found that, for the 1997–98

crop year only, the proviso under

§ 930.59(b), which prohibits handlers

from receiving diversion credit for juice

and juice concentrate, should be

suspended since such proviso does not

tend to effectuate the declared policy of

the Act.

List of Subjects in 7 CFR Part 930

Cherries, Marketing agreements,

Reporting and recordkeeping

requirements.

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

Accordingly, the interim final rule

amending 7 CFR part 930 which was

published at 63 FR 399 on January 6,

1998, is adopted as a final rule with the

following change:

PART 930—TART CHERRIES GROWN

IN THE STATES OF MICHIGAN, NEW

YORK, PENNSYLVANIA, OREGON,

UTAH, WASHINGTON, AND

WISCONSIN

1. The authority citation for part 930

continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Paragraph (f) of § 930.159 is revised

to read as follows:

§ 930.159 Handler diversion.

* * * * *

(f) Exempt uses. To receive diversion

credit for cherries used for exempt

purposes, handlers must meet the terms

and conditions specified in § 930.162.

Each handler may receive diversion

credit for up to one million pounds of

exempted products each crop year,

except that, for the 1997 season only,

the one million pound exemption

limitation for diversion credit does not

apply to handlers exporting tart cherry

products.

Dated: April 16, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–10659 Filed 4–21–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. FV97–930–5 FIR]

Tart Cherries Grown in the States of

Michigan, New York, Pennsylvania,

Oregon, Utah, Washington, and

Wisconsin; Issuance of Grower

Diversion Certificates

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, with an appropriate

modification to reflect a change in a

certificate redemption date, an interim

final rule establishing terms and

conditions for the issuance of grower

diversion certificates by the Cherry

Industry Administrative Board (Board)

under the marketing order for tart

cherries. Handlers may use such

certificates in order to satisfy their

restricted percentage amounts when

volume regulations are issued by the

Secretary. Tart cherry handlers in

Oregon, Pennsylvania, Washington and

Wisconsin (Districts 5, 6, 8, and 9) are

not subject to volume regulation at this

time because these districts do not

currently produce adequate tonnage to

trigger such regulation under the order.

EFFECTIVE DATE: May 22, 1998.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kenneth G.

Johnson, Marketing Order

Administration Branch, F&V, AMS,

USDA, room 2525–S, P.O. Box 96456,

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 Programs,

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.’’ This

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 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

provisions now in effect, preliminary

free and restricted percentages for tart

cherries acquired by handlers during the

1997 crop year were established by the

Board during its June 26–27, 1997,

meeting. Final free and restricted

percentages were recommended by the

Board to the Secretary during its

September 11–12, 1997, meeting and a

proposed rule setting the final free and

restricted percentages for the 1997–98

crop year at 55 percent and 45 percent,

respectively. Final action concerning

the final free and restricted percentages

is being published separately in the

Federal Register. This finalization of an

interim final rule provides for the

issuance of diversion certificates to

growers for cherries diverted during the

1997 crop year. 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
20020 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary will 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.

This rule finalizes an interim final

rule which provided for the issuance of

diversion certificates to growers in

volume regulated districts under the tart

cherry marketing order for the 1997 crop

year (July 1997 through June 1998). The

order became effective September 25,

1996, and the initial Board was

appointed in December 1996. The Board

held meetings in January, February,

March and June 1997, to consider its

start-up costs and establish rules and

regulations to implement the order

authorities. At its meetings, the Board

unanimously recommended that the

regulations be forwarded to the

Department for appropriate action.

In discussions, during its meetings,

concerning volume regulation for the

1997 crop year, the Board considered

guidelines and procedures for grower

diversion. Growers in the States which

would be subject to volume regulation

were sent information about the Board’s

discussions and recommendations. A

majority of the growers (approximately

700 out of 1,220) indicated interest in

the diversion program, and in the

districts which would be subject to

volume regulation, a number of them

voluntarily chose to divert cherries

based on information disseminated by

the Board concerning its deliberations

and recommendations. The Board,

during its meetings, continued

considering various provisions of the

order, such as those pertaining to

optimum supply, and making

recommendations which included

recommended guidelines for grower

diversion.

The order in section 930.50 provides

the method of establishing an optimum

supply level of cherries for the crop

year. The optimum supply consists of a

free percentage amount which a handler

may sell and a restricted percentage

amount, when warranted, which will

have to be withheld from the market.

Based on the optimum supply level, the

Board establishes preliminary free and

restricted percentages. Preliminary

percentages were established by the

Board on July 2, 1997, pursuant to

Section 930.50(b) of the order, using

Department estimates of the upcoming

crop. Preliminary free and restricted

percentages of 66 and 34 percent,

respectively, were announced to the

industry in accordance with section

930.50(h) of the order. No later than

September 15, after harvest and

processing of the crop have been

completed, the Board is required to

compute, and recommend to the

Secretary, final free and restricted

percentages based on actual crop

amounts. After receiving the Board’s

recommendation, the Secretary

designates the final free and restricted

percentages through the informal

rulemaking process if the Secretary

finds that designating such percentages

would tend to effectuate the declared

policy of the Act. For this season, the

proposed free and restricted percentages

are 55 percent and 45 percent,

respectively, as published in the January

21, 1998, Federal Register (63 FR 3048).

A final action concerning the final free

and restricted percentages is being

published separately in the Federal

Register. The difference between any

final free market tonnage percentage

designated by the Secretary and 100

percent would be the final restricted

percentage. A handler can satisfy

restricted percentage obligations

established by regulation by holding

restricted percentage cherries in an

inventory reserve that the handler

maintains, by redeeming grower

diversion certificates, or by diverting

cherries.

Section 930.58 of the tart cherry

marketing order provides authority for

voluntary grower diversion. Growers

can divert all or a portion of their

cherries which otherwise, upon delivery

to a handler, would become restricted

percentage cherries. Growers may be

issued diversion certificates by the

Board stating the weight of cherries

diverted. The grower may then present

the certificate to a handler in lieu of

actual cherries. The handler can apply

the weight of cherries represented by

the certificate against the handler’s

restricted percentage amount.

The Board recommended rules and

regulations specifying the guidelines for

the grower diversion program. First, the

Board recommended that any grower

desiring to divert in the orchard would

first need to apply to the Board. The

application would include the name,

address, phone number and a statement

signed by the grower agreeing to abide

by all the rules and regulations for

diversion. In addition, the grower would

be required to provide maps of such

grower’s orchard.

The Board recommended two types of

in-orchard diversion for the 1997–98

crop year. These are random row

diversion, in which orchard rows are

randomly chosen by the Board, using a

computer program, to be left

unharvested, and whole block

diversion, in which a whole definable

orchard block is left unharvested. Trees

below a certain age (in this rule, six

years or less) would not qualify for

diversion, since these trees are not yet

in full production.

The Board recommended that all

grower diversion certificates must be

redeemed with handlers by November 1.

After November 1, grower diversion

certificates would not be valid. It was

intended that diversion certificates be

used within the same crop year that

they were issued, as if a crop had been

produced. The November 1 date would

allow handlers adequate time to meet

their restricted percentage amounts after

final percentages had been established.

However, due to the fact this is a new

program in its first year of operation, the

November 1 deadline was extended to

February 5, 1998 (See the handler

diversion regulation published January

6, 1998, 63 FR 399). A conforming

modification is made in this rule by

removing the reference to the November

1 deadline.

The Board also recommended

guidelines concerning random row and

whole block diversion and compliance

procedures for growers to follow under

the grower diversion program.

This crop year a number of growers

voluntarily diverted cherries based on

preliminary free and restricted

percentages which had been announced

by the Board and on recommendations

concerning diversion which the Board

made to the Secretary. One hundred

twenty of them received diversion

certificates. The interim rule and this

finalization provides for the issuance of

grower diversion certificates by the

Board subject to certain specified terms

and conditions. In order to receive a

certificate, a grower must show, to the

satisfaction of the Board, that cherries

were in fact diverted. This may be

accomplished in a number of ways.

Information about the grower’s

production must be submitted to the

Board. In addition, the grower must

agree to allow the Board to confirm

reported diversion figures by allowing a

Board compliance officer to visit the

grower’s orchard.

After obtaining the necessary

information concerning diversion by a

grower, the Board would issue a

diversion certificate. The diversion
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 20021

certificate would be issued for an

amount equal to the estimated volume

of cherries diverted by the grower.

For random row diversion, such

estimated volume is calculated by

applying the percentage of the grower’s

production diverted to the actual

average volume per acre of cherries

produced and harvested. For example,

Grower A farms 1,000 acres and elects

to divert 20 percent of the harvestable

acreage (200 acres). The grower harvests

the remaining 800 acres and obtains

6,400,000 pounds of cherries, which

represents a yield per acre of 8,000

pounds. Such grower would receive a

diversion certificate for 1,600,000

pounds of cherries (8,000 lbs multiplied

by the 20 percent of the total acreage

diverted; in this instance, 200 acres).

For whole block diversion, the weight

of a harvested sample of 5 percent of

each block, provided by the grower, is

used to calculate the total volume of

diverted cherries to be credited on the

diversion certificate. For example,

Grower B farms 1,000 acres and elects

to whole block divert a 200 acre block.

If the 5 percent of the harvested trees in

the block diverted yield 80,000 pounds

of cherries, the grower receives a

diversion certificate for 1,600,000

pounds (80,000 pounds divided by 5

percent (.05) yields 1,600,000 pounds).

The rest of the block is unharvested.

After receiving a certificate from the

Board, the grower may offer the

certificate to a handler to be redeemed.

Based upon the recommendations of the

Board, guidelines and procedures for

grower diversion for 1998 and

subsequent seasons will be established

through another rulemaking action.

The Regulatory Flexibility Act and

Effects on Small Businesses

The Agricultural Marketing Service

(AMS) has considered the economic

impact of this action on small entities

and has prepared this final regulatory

flexibility analysis. The Regulatory

Flexibility Act (RFA) would allow AMS

to certify that regulations do not have a

significant economic impact on a

substantial number of small entities.

However, as a matter of general policy,

AMS’ Fruit and Vegetable Programs

(Programs) no longer opt for such

certification, but rather perform

regulatory flexibility analyses for any

rulemaking that would generate the

interest of a significant number of small

entities. Performing such analyses shifts

the Programs’ efforts from determining

whether regulatory flexibility analyses

are required to the consideration of

regulatory options and economic

impacts.

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.

One comment was received

concerning the regulatory flexibility

analysis. The commenter argued that

AMS has provided no economic

analysis concerning the interim rule,

did not consider any alternatives, and

did not provide a pre-rule opportunity

to comment. We disagree. An initial

regulatory flexibility analysis was

performed in the interim rule and

alternatives considered were discussed.

It was also explained why the rule was

issued as an interim final.

Section 930.58(b) authorizes the

Board to issue diversion certificates to

growers in volume regulated districts

under the tart cherry marketing order if

cherries are diverted according to terms

and conditions specified in the order, or

according to such other terms and

conditions that the Board, with the

approval of the Secretary, may establish.

The tart cherry marketing order was

promulgated on September 25, 1996,

and the Board met several times in 1997

to recommend rules and regulations to

implement the order authorities. The

Board is required under the order to

review its marketing policy on or before

July 1 and then make recommendations

to the Secretary for volume regulation,

if such regulation is deemed necessary.

The Board met June 26–27, 1997, to

review sales data, inventory data, crop

forecasts and market conditions in order

to establish an optimum supply volume

which is then used in calculating a

preliminary free market tonnage. The

Board established and announced the

optimum supply level and preliminary

free and restricted percentages for the

1997–98 crop year as required by the

order. On September 11–12, 1997, the

Board reviewed its marketing policy and

previous recommendations and

recommended final free market tonnage

and restricted tonnage percentages of 55

and 45 percent, respectively. A

proposed rule setting these percentages

for the 1997–98 crop year was published

in the Federal Register on January 21,

1998, (63 FR 3048). Final action

concerning the final free and restricted

percentage is being published separately

in the Federal Register.

The impact of this rule is beneficial to

growers. Grower diversion is one of the

methods under the order that a handler

can utilize to meet any such handler’s

restricted percentage. Growers may

voluntarily choose to divert because

they have cherries that do not meet

expected quality standards, or because

they are unable to find a processor

willing to process some or all of their

cherries. Before choosing to divert, the

grower will most likely evaluate the

harvesting and other cultural costs that

will be saved by diverting and locate a

handler that will be willing to redeem

such grower’s diversion certificate.

The Board discussed alternatives to

its recommendation to issue grower

diversion certificates for the 1997 crop

year. The Board considered not issuing

grower diversion certificates for the

1997 crop year but believed this action

would serve the economic interests of

both growers and handlers.

The Board also discussed limiting the

blocks to be diverted to no less than 5

acre blocks, but felt that this would have

an adverse impact on small growers that

produce on less than 5 acre blocks.

Therefore, the Board recommended not

restricting the size of orchard blocks

which could be diverted.

This rule does not contain any

reporting or recordkeeping requirements

in addition to those already considered

or approved during the order

promulgation proceeding. The only

written information requested from a

grower choosing to divert cherries for

1997 is an orchard map and the grower’s

final production volume. Since growers

maintain this information as part of

their normal farming operations, it takes

approximately 10 minutes to prepare a

map and less than a minute to total the

final production volume.

In compliance with Office of

Management and Budget (OMB)

regulations (5 CFR part 1320) which

implement the Paperwork Reduction

Act of 1995 (Pub. L. 104–13), the

information collection and

recordkeeping requirements have been

previously approved by OMB and

assigned OMB Number 0581–0177.

As with all Federal marketing order

programs, reports and forms are
20022 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

periodically reviewed to reduce

information requirements and

duplication by industry and public

sectors. In addition, the Department has

not identified any relevant Federal rules

that duplicate, overlap or conflict with

this rule.

The Board’s meetings were widely

publicized throughout the tart cherry

industry and all interested persons were

invited to attend the meetings and

participate in Board deliberations. All

Board meetings were open to the public

and all entities, both large and small,

were able to express their views on

these issues. The Board itself is

composed of 18 members, of which 17

members are growers and handlers and

one represents the public. Also, the

Board has a number of appointed

committees to review certain issues and

make recommendations to the Board.

An interim final rule concerning this

action was issued by the Department on

August 18, 1997, and published in the

Federal Register (62 FR 44881) on

August 25, 1997. Copies of the rule were

mailed by the Board’s staff to all Board

members, and tart cherry handlers.

Finally, the rule was made available

through the Internet by the Office of the

Federal Register.

A 30-day comment period was

provided to allow interested persons to

respond to the interim final rule. One

comment from a person representing an

industry organization was received

during the comment period in response

to the rule.

In addition to that portion of the

comment concerning the regulatory

flexibility analysis, the commenter

raised a variety of issues concerning and

complaining about this rulemaking and

the tart cherry program. We disagree

with this comment. This rulemaking

action is consistent with the

Agricultural Marketing Agreement Act

of 1937 and the tart cherry marketing

order and other applicable law.

First, the commenter stated that the

interim final rule violates the

Administrative Procedure Act. The

commenter stated that the Board

recommended the proposal several

months prior to the issuance of the rule,

and the issuance is well after harvest.

The commenter further stated that the

Agricultural Marketing Service (AMS)

based its decision making on this rule

on additional information that AMS has

kept secret, and that AMS has not

demonstrated ‘‘good cause’’ for its

failure to provide a 30 day delayed

effective date.

The Board has worked diligently

along with USDA 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.

Growers were aware of the procedures

being recommended for participation in

a grower diversion program. As a result,

many of them were voluntarily diverting

cherries with the anticipation that rules

would be forthcoming and that they

would be able to obtain diversion

certificates. An interim final rule with

an opportunity for comment (30-day

comment period) was issued. The

comments have been reviewed and are

addressed in this rulemaking. With

regard to the comment regarding

‘‘secret’’ information, there is no basis

for such statement. AMS has, and will

continue to conduct the tart cherry

program as it does for all other

marketing order programs with required

and appropriate public promulgation.

AMS considers all relevant information

which may have a bearing on the tart

cherry marketing order program

conducted under the authority of the

Agricultural Marketing Agreement Act

of 1937.

Second, the commenter objected to

the November 1, 1997, deadline for

providing diversion certificates to the

Board in order to meet reserve

obligations. The commenter also stated

that USDA has not acted on any of the

percentage recommendations made at

the June and September meetings. Final

free and restricted percentages were

proposed by the Secretary on January

21, 1998 (63 FR 3048). Final action

concerning the final free and restricted

percentage is being published separately

in the Federal Register. Also, the

November 1 deadline for handlers to

redeem grower diversion certificates

was extended to February 5, 1998, by

the handler diversion regulation

published on January 6, 1998 (63 FR

399).

Third, the commenter stated that

growers were sent information, the

content of which was not specified,

about the 1997 diversion program. The

commenter further stated that any such

advance information highlights AMS’s

failure to follow the APA’s mandatory

procedures for reasoned decision

making. Information pertaining to the

grower diversion program being

recommended by the Board was

distributed by the Board. This was

discussed in the interim final rule that

was published concerning grower

diversion. Further, the grower diversion

program is voluntary. A number of

growers chose to divert cherries in

anticipation of receiving diversion

certificates. Regulations concerning the

program were adopted and issued as an

interim final rule and are being made

final in this action.

Fourth, the commenter stated that the

rule disallowing cherries from trees six

years or younger from the diversion

program is entirely arbitrary; that the

concept behind diversion is keeping

pounds of marketable cherries off the

market, and has nothing to do with

trees. Allowing the use of trees which

are not yet bearing cherries or which are

just beginning to bear cherries in

calculating diversion amounts would

result in figures which are not

representative of a grower’s true

production. Information used to arrive

at the age of trees eligible for diversion

came from record testimony and from

the National Agricultural Statistics

Service (NASS), which only counts trees

in its statistical reports that are six years

and older.

Fifth, the commenter stated that a key

component of the Final Order

implementing the marketing order was

that the order not be used as a form of

‘‘crop insurance’’ for cherries which are

not marketable, and that the interim rule

contains no assurance that diverted

cherries are marketable. The diversion

program should not be and is not a crop

insurance program for unmarketable

cherries. The diversion program for the

1997–98 crop year provides that growers

can divert all or a portion of their

cherries which otherwise, upon delivery

to a handler, would become restricted

percentage cherries. To receive grower

diversion certificates, growers must also

agree to allow the Board to confirm that

diversion of such cherries has actually

taken place. Diverted production is

measured based on the amount equal to

the estimated volume of cherries

diverted by the grower. The grower

must agree to allow a Board compliance

officer to visit the grower’s orchard to

ensure that diversion requirements are

satisfied. The issue of unmarketable

cherries will be further considered

when diversion rules for the 1998–99

and the following crop years are drafted.

Sixth, the commenter stated that there

is no sufficient guarantee of compliance

and that the Board has not adopted a

compliance plan as part of its annual

marketing policy. The commenter also

stated that the 5 percent sample size

provided by the grower could be

weighted with ‘‘lead’’ cherries therefore

abusing the system. Grower diversion

for the 1997–98 crop year was sampled

and measured under the supervision of

Board compliance staff. Therefore,

before issuing certificates, the Board
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 20023

should know whether diversion

requirements are met. The Board has

recommended an improved sampling

method to be in place for the 1998–99

crop year and subsequent seasons. The

Department is also continuing to work

with the Board to further develop and

refine the compliance plan for the tart

cherry marketing order for future

seasons.

Finally, the commenter questioned

the composition of the Board and

whether some members should be

disqualified. The Board was properly

nominated in accordance with USDA

and order procedures, and selected on

December 20, 1996. Concerns that have

been raised about the composition of the

Board and questions about the eligibility

of certain members to serve on the

Board are being reviewed by the

Department and will be addressed

separately.

Accordingly, no changes are made to

the rule as drafted in the interim final

rule, based on the comment received.

However, as discussed, this rule does

delete the certificate redemption date in

§ 930.100(a).

After consideration of all relevant

material presented, including the

Board’s recommendation, and other

information, it is found that this final

rule as hereinafter set forth, will tend to

effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 930

Cherries, Marketing agreements,

Reporting and recordkeeping

requirements.

Accordingly, the interim final rule

amending 7 CFR 930 which was

published at 62 FR 44881 on August 25,

1997, is adopted as a final rule with the

following changes:

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. In § 930.100, paragraph (a) is

revised to read as follows:

§ 930.100 Grower diversion certificates.

(a) In accordance with paragraph (b)

of this section, the Board may, for the

1997 crop year, issue diversion

certificates to growers, in districts

subject to volume regulation (Northwest

Michigan, Central Michigan, New York,

and Utah) who have voluntarily elected

to divert in the orchard all or a portion

of their 1997 tart cherry production

which otherwise, upon delivery to

handlers, would become restricted

percentage cherries. Growers may offer

the diversion certificate to handlers in

lieu of delivering cherries.

* * * * *

Dated: April 16, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–10658 Filed 4–21–98; 8:45 am]

BILLING CODE 3410–02–P