[Federal Register Volume 62, Number 205 (Thursday, October 23, 1997)]
[Rules and Regulations]
[Pages 55146-55150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28130]


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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.

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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.

[[Page 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,

[[Page 55148]]

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

[[Page 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

[[Page 55150]]

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


Sec. 930.141  Delinquent assessments.

    (a) Pursuant to Sec. 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


Sec. 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