Tobacco Inspection; Subpart BRegulations

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 29

[Docket No. TB-99-07]

Tobacco Inspection; Subpart B--Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Agricultural Marketing Service is amending the regulations

governing the mandatory inspection of tobacco by adding 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 the tobacco inspectors

are grading tobacco on the auction warehouse floor, and removing the

language allowing the producer to discuss the grading of their tobacco

with the inspector at the time grading is being performed. This rule

will incorporate recommendations made by the Flue-Cured Tobacco

Advisory Committee, the Five-State Flue-Cured Tobacco Committee, and

industry representatives that clarification of this regulation is

necessary to eliminate interference, distraction, and outside influence

on the grading of tobacco. These amendments will revise the regulation

to better eliminate interference, distraction, and outside influence on

the grading of tobacco.

DATES: Effective September 28, 1999; comments received by November 26,

1999 will be considered prior to issuance of a final rule.

ADDRESSES: Send comments to 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: (202) 205-0235. Comments will

be made available for public inspection at this location during regular

business hours.

FOR FURTHER INFORMATION CONTACT: John P. Duncan III, Deputy

Administrator, Tobacco Programs, AMS, USDA, Room 502 Annex Building,

P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 205-0567,

Fax: (202) 205-0235.

SUPPLEMENTARY INFORMATION: This rule is amending the regulations

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 has received recommendations from all segments of

the tobacco industry, the Flue-Cured Tobacco Advisory Committee, and

the Five-State Flue-Cured Tobacco Committee that changes to the

regulation in subpart B, section 29.81(a), Interference with

inspectors, is necessary to better eliminate interference, distraction,

and outside influence on the grading of tobacco.

The current regulation specifies 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 regulatory change will 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. This action also will remove language allowing a

producer to discuss the grading of their tobacco with the inspector at

the time grading is performed. While producers will be 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. This will not preclude the producer from

appealing the decision of the inspector after a grade has been

assigned.

Accordingly, this rule will add the term ``purchaser'' to include

this segment of the industry from attempting to influence, impeding, or

discussing any matter relating to grading while the tobacco inspectors

are grading tobacco on the auction warehouse floor, and the language

allowing the producer to discuss the grading of their tobacco with the

inspector at the time grading is being performed will be removed. This

action will incorporate recommendations made by industry

representatives, the Flue-Cured Tobacco Advisory Committee, and the

Five-State Flue-Cured Tobacco Committee that no one be allowed to

discuss any matter while tobacco grading activities are being performed

on the auction warehouse floor.

This rule has been determined to be ``not significant'' for

purposes of Executive Order 12866, and therefore, has not been reviewed

by the Office of Management and Budget.

This rule has been reviewed under Executive Order 12866, 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 121.601)

as those having annual receipts of less than $500,000 and small

agricultural service firms are defined as those whose annual receipts

are less 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.

This rule amends the regulations governing the mandatory inspection of

tobacco by (1) Adding to the terms ``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) removing language allowing a producer from discussing

grading of their tobacco with the

[[Page 51888]]

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, would have minimal impact on producers since producers would

not be precluded from appealing the decision of an inspector after a

grade had been assigned.

It is hereby 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) The 1999

flue-cured marketing season is currently underway and this action is

needed, as soon as possible, to provide clarification when it is

allowable for someone to communicate with the grading personnel while

they are performing their duties; and (2) this interim final rule

provides a 60-day comment period, and all comments timely received will

be considered prior to finalization of this rule.

Lists of Subject 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. In Sec. 29.81, paragraph (a) is revised to read as follows:

Sec. 29.81 Interference with inspectors.

(a) No person, including the owner, producer, warehouseman, 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: September 17, 1999.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing Service.

[FR Doc. 99-24772 Filed 9-24-99; 8:45 am]

BILLING CODE 3410-02-P