00-14730. Tobacco Inspection; Subpart B-Regulations

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Agricultural Marketing Service (AMS) is adopting, as a final rule, with changes, an interim final rule revising the regulations governing permissive inspection of tobacco that special tests and services be provided by AMS, as requested by the industry. This action incorporates recommendations made by the Burley Tobacco Advisory Committee and the buying segment of the tobacco industry that moisture testing be performed by AMS on all burley tobacco marketed during the 1999-2000 marketing season. The revisions will continue to provide regulatory authority to conduct moisture testing and collect fees and charges for these services.

EFFECTIVE DATE:

July 12, 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, P.O. Box 96456, Washington, DC 20090-6456; or Fax: [phone].

SUPPLEMENTARY INFORMATION:

The Department published in the Federal Register on December 2, 1999 (64 FR 67469) an interim final rule amending the regulations at 7 CFR part 29, subpart B. The Department requested comments on the regulation. The comment period expired on January 31, 2000, and AMS received no comments on the amendments.

This final rule revises the regulations governing the permissive inspection of tobacco pursuant to the provisions of the Tobacco Inspection Act (49 Stat. 741, 7 U.S.C. 511 et seq.).

The Burley Tobacco Advisory Committee made a recommendation at its June 10, 1999, meeting that AMS conduct moisture testing on all burley tobacco offered for sale at designated auction markets. The recommendation was contingent on successful price negotiations between the buying segment and burley tobacco warehouse operators. The committee further recommended that tobacco marketed in an experimental unitized package be turned 90 degrees within the row as a condition of the testing process.

During the 1998-99 marketing season, approximately 60 million pounds of burley tobacco was sold in the experimental unitized package and tested for moisture content by the warehouse operators. The unitized bale is a new experimental package consisting of an even number of traditional burley bales with one additional bale opened and evenly arranged on top which is securely bound with metal wires to form a rectangular cube.

Due to integrity issues between the buying and warehouse segments of the industry, it was recommended that a third party entity perform the moisture testing. After three months of discussions and negotiations by the buying segment and the Burley Auction Warehouse Association, representing 95 percent of burley tobacco warehouse operators, a commitment was obtained from the four major tobacco companies purchasing burley tobacco to reimburse AMS $.0020 per pound for providing moisture testing services. These testing services were conducted on all burley tobacco during the 1999-2000 marketing season, including the traditional lot consisting of a maximum of eight bales and the experimental unitized package, offered for sale at designated markets.

Therefore, at the recommendation of the Burley Tobacco Advisory Committee and the buying segment of the tobacco industry, the Department implemented revised regulations to conduct special testing services for interested parties and charge fees to recover the costs of providing the service as determined by the Deputy Administrator, Tobacco Programs.

This rule has been determined to be “non significant” for purposes of Executive Order 12866, and therefore, has not be reviewed by the Office of Management and Budget.

This 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 business. 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 and most warehouses and producers may be classified as small entities. The Agricultural Marketing Service has determined that this action will not have a significant economic impact on a substantial number of small entities because the fees are not mandatory but apply only when special inspections or services are requested. This rule continues revisions that amended the regulation governing the permissive inspection of tobacco to conduct special testing services for interested parties and charge fees to recover the costs of providing the service as determined by the Deputy Administrator, Tobacco Programs.

The rule is changed slightly to make it clearer that the amount of the fees for special tests and services will be determined by agreement.

Lists of Subjects in 7 CFR Part 29

• Administrative practice and procedure
• Advisory committees
• Government publications
• Imports
• Pesticides and pests
• Reporting and recordkeeping requirements
• Tobacco

Accordingly, the interim final rule amending 7 CFR part 29 which was published at 64 FR 67469 on December 2, 1999, is adopted as a final rule with the following changes:

PART 29—TOBACCO INSPECTION

Subpart B—Permissive Inspection

1. The authority citation for 7 CFR part 29, subpart B, continues to read as follows:

Authority: 7 U.S.C. 511m and 511r.

2. Section 29.56 is amended by revising the last sentence to read as follows:

§ 29.56

Permissive inspection.

* * * Special tests and services may be performed for interested persons to the extent that available facilities will permit, subject to the payment of fees as provided in § 29.123.

3. In § 29.123, paragraph (e) is revised to read as follows:

§ 29.123

Fees and charges.

* * * * *

(e) Fees for special tests and services will be determined by agreement between the Deputy Administrator, Tobacco Programs, and the applicant or applicants for service.

Dated: June 6, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing Service.