00-9173. Tobacco Inspection; Subpart B-Regulations

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Department of Agriculture (Department) is adopting as a final rule, with minor formatting changes, the provisions of an interim final rule, the regulation governing the mandatory inspection of tobacco that added the term “purchaser” specifically to include in the regulatory text this segment of the industry from attempting to influence, impede, or discuss any matter related to grading while the tobacco inspectors are grading tobacco on the auction warehouse floor and removed the language allowing the producer to discuss the grading of their tobacco with the inspector at the time grading is being performed. This rule incorporates recommendations made by the Flue-Cured Tobacco Advisory Committee, the Five-State Flue-Cured Tobacco Committee, and industry representatives to clarify when it is allowable for someone to communicate with the grading personnel while they are performing their actual duties. The revisions better eliminate interference, distraction, and outside influence on the grading of tobacco.

EFFECTIVE DATE:

May 15, 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; or Fax: [phone].

SUPPLEMENTARY INFORMATION:

The Department published in the Federal Register on September 27, 1999 (64 FR 51887) an interim final rule amending the regulation at 7 CFR part 29, subpart B. The Department requested comments on the regulation. The comment period expired on November 26, 1999. AMS received one comment from a buying segment of the tobacco industry favoring the amendments.

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

The Department received recommendations from the Flue-Cured Tobacco Advisory Committee, the Five-State Flue-Cured Tobacco Committee, and industry representatives that changes to the regulation in subpart B, § 29.81(a), Interference with inspectors, is necessary to better eliminate interference, distraction, and outside influence on the grading of tobacco.

The prior regulation specified that, no person, including the owner, producer, warehouseman, agent, or employee thereof shall attempt to influence, impede, or discuss any matter relating to grading while the tobacco inspectors are grading tobacco on the auction warehouse floor. The interim final rule does not allow any member of the industry, including tobacco purchasers, to discuss any matter pertaining to grading while the tobacco inspectors are grading tobacco on the auction warehouse floor. Also, the interim final rule action removed language allowing a producer to discuss the grading of their tobacco with the inspector at the time grading is performed. While producers are allowed to be present when their tobacco is being graded, they cannot discuss the grade or attempt to influence or intimidate the inspector during the performance of grading duties. The interim final rule does not preclude the producer from appealing the decision of the inspector after a grade has been assigned.

This action finalizes the provisions of the interim final rule, with minor formatting changes, that added the term “purchaser” specifically to include in the regulatory text that segment of the industry from attempting to influence, impede, or discuss any matter related to grading while tobacco inspectors are grading tobacco on the auction warehouse floor and that removed the language allowing the producer to discuss the grading of their tobacco with the inspector at the time grading is being performed.

This final 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 final 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 121.601) as those having annual receipts of less than $500,000 and small agricultural service firms are defined as those whose annual receipts are less that $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. This rule continues revisions that amended the regulation governing the mandatory inspection of tobacco that: (1) Added the term “purchaser” to specifically include in the regulatory text this segment of the industry from attempting to influence, impeding, or discussing any matter relating to grading while tobacco inspectors are grading tobacco on the auction floor and (2) removed the language allowing a producer from discussing grading of their tobacco with the inspector at the time grading is being performed. Specifying the term “purchaser” in the text of the regulation merely identifies a segment of the industry already prohibited from these actions. Further, removal of language allowing producers to discuss with inspectors their tobacco will have minimal impact on producers since producers would not be precluded from appealing the decision of an inspector after a grade has been assigned.

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, the interim final rule amending 7 CFR part 29 which was published at 64 FR 51887 on September 27, 1999, is adopted as a final rule with the following change:

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. In § 29.81, paragraph (a) is revised to read as follows:

§ 29.81

Interference with inspectors.

(a) No person, including the owner, producer, warehouseman, purchaser, agent, or employee thereof shall attempt, in any manner, to influence an inspector with respect to the grade designation of tobacco, or impede, in any manner, an inspector while the inspector is in the process of grading tobacco on the warehouse auction floor, or ask any question or discuss any matter pertaining to the grading of tobacco while the inspector is grading any tobacco on the warehouse auction floor. While inspectors are engaged in grading the day's sale, all requests for information concerning the grade designation on or requests to review the grade of any lot of tobacco shall be made only to the head grader or to the market supervisor grader.

* * * * *

Dated: April 5, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing Service.