[Federal Register: July 27, 2000 (Volume 65, Number 145)]
[Rules and Regulations]
[Page 46085-46087]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy00-1]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 29
[Docket No. TB-99-02]
RIN 0581-AB75
Tobacco Inspection
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, the regulations for flue-cured tobacco to more accurately
describe tobacco as it presently appears at the marketplace. The
revision will add a new provision to the official grade standards for
flue-cured tobacco to denote that any lot of baled tobacco that has not
been opened for inspection be graded by the exterior only. Additional
bale dimensions and space requirements will be established for uniform
marketing display in the warehouses, and a revision will be made in the
poundage adjustment for a warehouse selling in excess of the sales
schedule for designated and undesignated producer tobacco.
EFFECTIVE DATE: July 28, 2000.
FOR FURTHER INFORMATION CONTACT: John P. Duncan III, Deputy
Administrator, Tobacco Programs, Agricultural Marketing Service (AMS),
United States Department of Agriculture (USDA), Room 502 Annex
Building, PO Box 96456, Washington, DC 20090-6456. Telephone (202) 205-
0567.
SUPPLEMENTARY INFORMATION: The Department published in the Federal
Register on March 15, 2000 (65 FR 13915) a proposed rule amending the
regulations at 7 CFR part 29, subpart B, Regulations; subpart C,
Standards, and subpart G, Policy Statement and Regulations Governing
Availability of Tobacco Inspection and Price Support Services to Flue-
Cured Tobacco on Designated Markets. The Department requested comments
on the regulations. The comment period expired on May 15, 2000, and AMS
received no comments on the amendments.
The final rule will add a new provision to the grade standards for
baled flue-cured tobacco, establish bale dimensions and spacing
requirements, and revise the poundage adjustment for a warehouse
selling in excess of the sales schedule for designated and undesignated
tobacco, pursuant to the authority contained in the Tobacco Inspection
Act of 1935, as amended (49 Stat.731; 7 U.S.C. 511 et seq.).
On January 20, 2000, the Flue-Cured Tobacco Advisory Committee
(FCTAC) met and reviewed recommendations from the tobacco industry on
the flue-cured bale as an alternative packaging method. The
recommendations made by the FCTAC have been included in this final rule
for regulatory action. The revisions will add a new provision to the
official standards for flue-cured tobacco to denote that any lot of
baled tobacco that has not been opened for inspection will be graded by
the exterior only, establish dimension and spacing requirements for
marketing display of bales, and revise the poundage adjustment for a
warehouse selling in excess of the sales schedule. An earlier proposed
rule concerning bale inspection was issued on May 12, 1999 (64 FR
25462) and was withdrawn on July 22, 1999 (64 FR 39432). The notice of
the withdrawal stated that we intended to publish an advance notice of
proposed rulemaking to solicit additional input. The FCTAC advised that
the rule be published promptly, and we agree that the issues have
already been considered within the industry. Accordingly, we published
in the Federal Register a proposed rule on March 15, 2000.
Flue-cured tobacco has been traditionally marketed in a sheet with
a maximum weight of 275 pounds. The dimensions of the sheet is 8 feet x
8 feet and is composed of burlap or other synthetic materials. The
tobacco is arranged in a circular pattern on the sheet and the corners
are tied diagonally for handling purposes. The lot of sheeted tobacco
is approximately 4 feet in diameter.
The tobacco industry has experimented with the bale as an
alternative packaging method for marketing flue-cured tobacco during
the past 4 years. This alternative package is a 42-inch wide x 42-inch
high x 40-inch long bale weighing approximately 750 pounds. The bale is
compressed together and bound by metal wires. The FCTAC recommended
bale dimensions of 42 inches x 42 inches x 40 inches. Because
uniformity in the size of bales is an important aspect of the
acceptability of baled tobacco, bales which are not approximately these
dimensions will be ineligible for a standard grade and designated ``No-
G.''
The current regulations under the Tobacco Inspection Act do not
specifically restrict baling as a packaging method for flue-cured
tobacco. However, the current regulations do require that an official
grade determination be based on a thorough examination of a lot of
tobacco. A minimum of three locations within a lot is required to be
sampled to show the range of the entire lot. However, the buying
segment of the tobacco industry has opposed opening bales citing
integrity issues.
During the 1998 flue-cured marketing season, Tobacco Programs
conducted a research project on marketing flue-cured tobacco in bales.
The research focused on the grade and condition of flue-cured baled
tobacco from the beginning to the end of the marketing process.
Research data was collected at the farm level as the tobacco was
compressed into a bale, at the auction warehouse before and during the
day of sale, and at the processing facility as the bale was
disassembled.
The purpose of the research project was to determine if significant
variations existed between the exterior and interior of the flue-cured
bale that would impact the official grade standards. The findings
indicated there was no significant variation in grade and condition
observed.
Accordingly, this rule will revise the current tobacco regulations
to allow the inspection of bales of flue-cured tobacco without the bale
being opened for inspection. All lots of tobacco that are subject to
mandatory inspection on a designated market should be made accessible
to perform grading activities. The recommendation was made that each
lot of baled flue-cured tobacco
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displayed for sale on auction warehouse floors be placed in rows end to
end so the open side of the bales are facing the aisles. Also, a
minimum space of 30 inches between the rows with the distance between
lots of tobacco within the row shall be no less than 18 inches between
immediately adjacent lots was recommended. These two spacing proposals
will promote the orderly marketing of baled tobacco by providing a
uniform marketing display in the warehouse. This will also provide
accessibility for inspection of the bales.
An additional revision will increase the poundage adjustment of
2,500 pounds by doubling the poundage amount for a warehouse selling in
excess of the daily sales schedule. For example, 2,500 pounds will
become 5,000 pounds and 5,000 pounds will become 10,000 pounds. The
same will be applicable to undesignated producer tobacco, with 500
pounds becoming 1,000 pounds and 1,000 pounds becoming 2,000 pounds.
This action is being adopted because the bale weight is approximately
three times as much as tobacco marketed in sheets. This will give the
farmers a chance to complete selling their lots of tobacco when the
daily sales schedule has been depleted. This rule should meet industry
needs for marketing tobacco in bales.
This rule has been determined to be ``non significant'' for
purposes of Executive Order 12866, and therefore, has not been reviewed
by the Office of Management and Budget.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This action is not intended to have retroactive
effect. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. There are no administrative procedures which
must be exhausted prior to any judicial challenge to the provisions of
this rule.
Additionally, in conformance with the provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), full consideration has been
given to the potential economic impact upon small businesses. All
tobacco warehouses and producers fall within the confines of ``small
business'' which are defined by the Small Business Administration (13
CFR 121.201) as those having annual receipts of less than $500,000, and
small agricultural service firms are defined as those whose annual
receipts are less than $3,500,000. There are approximately 190 tobacco
warehouses and approximately 30,000 producers. The Agricultural
Marketing Service has determined that this action would not have a
significant economic impact on a substantial number of small entities.
A new rule will be added to the official standards for flue-cured
tobacco to denote that any lot of baled tobacco that has not been
opened for inspection will be graded by the exterior only. Accordingly,
this change will allow grading of a closed package from the exterior
only, and will assist in maintaining program integrity. Additional bale
dimensions and space requirements will be established for uniform
marketing display in the warehouses and will provide accessibility for
inspection of the bales. A revision will be made to the poundage
adjustment for a warehouse selling in excess of the sales schedule and
for undesignated producer tobacco in order to take into account the
marketing of bales. These changes will apply equally to both small and
large entities and they will take into account the marketing of flue-
cured tobacco as it presently appears in the marketplace. Pursuant to 5
U.S.C. 553, it is determined that good cause exists for not postponing
the effective date of this rule until 30 days after publication in the
Federal Register because: (1) The flue-cured tobacco marketing season
will begin in July and it is essential that the requirements be uniform
for the entire marketing season, and (2) a 60-day comment period was
provided for the proposed rule and no comments were received.
List of Subjects in 7 CFR Part 29
Administrative practice and procedure, Advisory committees,
Government publications, Imports, Pesticides and pests, Reporting and
recordkeeping requirements, Tobacco.
For the reasons set forth in the preamble, 7 CFR part 29 is amended
as follows:
PART 29--TOBACCO INSPECTION
Subpart B--Regulations
1. The authority citation for Part 29, Subpart B continues to read
as follows:
Authority: 7 U.S.C. 511m and 511r.
2. A new Sec. 29.75b is added to read as follows:
Sec. 29.75b Display of baled flue-cured tobacco on auction warehouse
floors in designated markets.
Each lot of baled flue-cured tobacco displayed for sale on auction
warehouse floors shall have a minimum of 30 inches from side to side
between rows with the open side of the bale facing the aisles. Distance
between lots of baled tobacco within the row shall be no less than 18
inches between immediately adjacent lots.
Subpart C--Standards
3. The authority citation for Part 29, Subpart C continues to read
as follows:
Authority: 7 U.S.C. 511b, 511m, and 511r.
Sec. 29.1059 [Amended]
4. Section 29.1059 is amended by removing the words ``and 29.)''
and adding in their place there the words ``29, and 30'').
5. Section 29.1109 is revised to read as follows:
Sec. 29.1109 Rule 3.
In drawing an official sample from a hogshead or other package of
tobacco, three or more breaks shall be made at such points and in such
manner as the inspector or sampler may find necessary to determine the
kinds of tobacco and the percentage of each kind contained in the lot.
All breaks shall be made so that the tobacco contained in the center of
the package is visible to the sampler, except for baled tobacco that is
not opened for inspection (see Rule 30). Tobacco shall be drawn from at
least three breaks from which a representative sample shall be
selected. The sample shall include tobacco of each different group,
quality, color, length, and kind found in the lot in proportion to the
quantities of each contained in the lot.
6. Section 29.1129 is revised to read as follows:
Sec. 29.1129 Rule 23.
Tobacco shall be designated by the grademark ``No-G,'' when it is
offtype, semicured, fire-killed, smoked, oxidized over 10 percent, has
an odor foreign to the type, or is packed in bales which are not
approximately 42 inches wide x 42 inches high x 40 inches long.
7. A new Sec. 29.1136 is added to read as follows:
Sec. 29.1136 Rule 30.
Any lot of baled tobacco that is not opened for inspection but
which otherwise meets the specifications of a grade shall be graded by
the exterior only.
Subpart G--Policy Statement and Regulations Governing Availability
of Tobacco Inspection and Price Support Services to Flue-Cured
Tobacco on Designated Markets
8. The authority citation for Part 29, Subpart G continues to read
as follows:
Authority: Tobacco Inspection Act, 49 Stat. 731 (7 U.S.C. 511 et
seq.); Commodity Credit Corporation Charter Act, 62 Stat. 1070, as
amended (15 U.S.C. 714 et seq.); sec. 213, Pub. L. 98-180, 97 Stat.
1149 (7 U.S.C. 1421);
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49 Stat. 731 (7 U.S.C. 511 et seq.), unless otherwise noted.
9. Section 29.9406 is amended by revising paragraghs (c)(1),
(c)(2), (c)(3), and (d) to read as follows:
Sec. 29.9406 Failure of warehouse to comply with opening and selling
schedule.
* * * * *
(c) * * *
(1) If the excess is 5,000 pounds or less of designated producer
tobacco, the adjustment in producer sales opportunity shall be one
pound for each pound of excess; sales in excess of 5,000 pounds shall
be a violation of the sales schedule and the adjustment for the first
violation shall be 5,000 pounds plus the larger of 3 pounds for each
pound in excess of 5,000 pounds or 5,000 pounds; for the second
violation, the adjustment shall be 5,000 pounds plus the larger of 5
pounds for each pound in excess of 5,000 or 15,000 pounds; and for the
third and subsequent violations, the adjustment shall be 5,000 pounds
plus the larger of 5 pounds for each pound in excess of 5,000 pounds or
50 percent of a scheduled day's sales opportunity.
(2) If the excess is 1,000 pounds or less of undesignated producer
tobacco, the adjustment in producers sales opportunity is one pound for
each pound of excess; if the excess is larger than 1,000 pounds, the
adjustment is 1,000 pounds plus the larger of 3 pounds for each pound
in excess of 1,000 or 2,000 pounds.
(3) If the excess is designated producer tobacco that is not
eligible for sale at the warehouse on the day of the sale, the
adjustment in producers sales opportunity for the first violation is
the larger of 3 pounds for each pound in excess or 5,000 pounds, and
for the second and succeeding violations, the larger of 5 pounds for
each pound in excess or 10,000 pounds.
(d) If, on any sales day, a warehouse does not sell the full
quantity of designated or undesignated tobacco authorized to be sold at
such warehouse, the designated or undesignated sales opportunity at
such warehouse on the next immediate sales day shall automatically be
increased by the unsold quantity except that no such increase in sales
opportunity shall exceed 5,000 pounds for designated tobacco or 500
pounds for undesignated tobacco.
Dated: July 20, 2000.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
[FR Doc. 00-18963 Filed 7-26-00; 8:45 am]
BILLING CODE 3410-02-P
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