[Federal Register Volume 67, Number 22 (Friday, February 1, 2002)]
[Proposed Rules]
[Pages 4926-4927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2403]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 67, No. 22 / Friday, February 1, 2002 / 
Proposed Rules  

[[Page 4926]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 29

[Docket No. TB-02-03]


Tobacco Inspection; Producer Referenda on Mandatory Grading

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish procedures for referenda 
among producers of each kind of tobacco that is eligible for price 
support to determine whether they favor the mandatory grading of that 
kind of tobacco. Currently, tobacco that is not sold at auction is not 
subject to mandatory grading.

DATES: Written comments on this proposed rule must be received on or 
before February 11, 2002.

ADDRESSES: Send comments to John P. Duncan III, Deputy Administrator, 
Tobacco Programs, Agricultural Marketing Service (AMS), United States 
Department of Agriculture (USDA), STOP 0280, 1400 Independence Avenue, 
SW., Washington, DC 20250-0280. Comments will be available for public 
inspection at this location during regular business hours between 8 AM 
and 4:30 PM, Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: John P. Duncan III, Deputy 
Administrator, Tobacco Programs, AMS, USDA, STOP 0280, 1400 
Independence Avenue, SW., Washington, DC 20250-0280; telephone number 
(202) 205-0567.

SUPPLEMENTARY INFORMATION: Section 759 of the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act for 2002 (Pub. L. 107-76) (Appropriations Act) 
requires USDA to conduct referenda among producers of each kind of 
tobacco that is eligible for price support under the Agricultural Act 
of 1949 (7 U.S.C. 1421 et seq.) to determine whether a majority of 
producers of a kind of tobacco voting in the referendum favor the 
mandatory grading of that kind of tobacco. The referenda should be 
conducted by March 31, 2002. If a majority of the producers voting in a 
referendum favor the mandatory grading of that kind, USDA is directed 
to ensure that the kind of tobacco is graded at the time of sale for 
the 2002 and subsequent marketing years. The USDA is also directed to 
establish user fees for any such inspections. To the maximum extent 
practicable, these fees would be established in the same manner as user 
fees for the grading of tobacco sold at auction authorized under the 
Tobacco Inspection Act (7 U.S.C. 511 et seq.). Regulations for tobacco 
inspection, including fees and charges, appear in subpart B of 7 CFR 
part 29.
    This proposed rule would establish procedures for conducting the 
producer referenda. Provisions are included for the method of 
conducting the referendum, eligibility for voting, a one vote 
limitation, form and distribution of ballots, filing and tabulation of 
ballots, and confidentiality. As provided for in the Appropriations 
Act, separate referenda would be conducted among the producers of each 
kind of tobacco eligible for price support. These kinds are flue-cured 
tobacco, types 11, 12, 13, 14; Kentucky-Tennessee fire-cured tobacco, 
types 22 and 23; Virginia fire-cured tobacco, type 21; Virginia sun-
cured tobacco, type 37; dark air-cured tobacco, types 35 and 36; burley 
tobacco, type 31; and cigar filler and binder tobacco, types 42, 43, 
53, 54, and 55, as set forth at 7 CFR part 1464.2.
    Producers of each kind of tobacco would be eligible to vote in the 
referendum for that kind. Under USDA's price support program, periodic 
referenda are conducted among producers of specific commodities, 
including tobacco, to determine whether they favor the continuation of 
quotas. Voting eligibility is governed by 7 CFR 717.3. This proposed 
rule would to a great extent follow those provisions as they apply to 
tobacco producers and would determine eligibility to vote in the same 
or similar way. In general, the persons eligible to vote in a 
referendum for a particular kind of tobacco would be the farmers 
engaged in the production of the crop of such tobacco harvested in the 
immediately preceding crop-year prior to the holding of the referendum. 
This would include any person who is entitled to share in a crop of the 
commodity, or the proceeds thereof because he or she shares in the 
risks of production of the crop as an owner, landlord, tenant, or 
sharecropper, but would not include a landlord whose return from the 
crop is fixed regardless of the amount of the crop produced.
    This rule proposes to administer the Appropriations Act 
requirements in accordance with USDA voting procedures with which the 
affected producers are familiar. The AMS Mandatory Grading Referenda 
program, producer eligibility, and procedural requirements will be 
governed by 7 CFR part 717, Holding of Referenda, and the definitions 
contained in sections 718.2 and 723.104 of that same chapter which 
govern USDA, Farm Service Agency (FSA) referenda for tobacco producer 
quotas. This avoids development of redundant requirements, besides, 
quota holders are familiar with these procedures. A copy of these 
regulations, a referendum ballot, and voting procedures are available 
for review in any USDA Service Center.

Executive Order 12866 and 12988

    This proposed 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 12988, Civil 
Justice Reform. This action is not intended to have retroactive effect. 
The rule will not exempt 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.

Regulatory Flexibility Act

    In conformance with the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.), consideration has been given to the 
potential economic impact upon small business. There are approximately 
450,000 tobacco producers who would be eligible to vote in the 
referenda. Pursuant to criteria established under the Regulatory 
Flexibility Act, most of the tobacco producers would be considered 
small entities. This rule will not substantially

[[Page 4927]]

affect tobacco growers. Voting in the referendum is voluntary. As 
discussed in the following section on the Paperwork Reduction Act, the 
public reporting burden is minimal, an estimated 5 minutes per 
response. Voting will be conducted by mail. The overall impact of this 
proposed rule should be minimal on tobacco growers because this rule 
provides for referenda procedures only and relies on, to a great 
extent, existing procedures. Accordingly, it has been determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities.
    A comment period of 10 days is provided for this proposed rule. 
This period of time is deemed appropriate because the regulations 
should be in place to conduct the referenda by March 31, 2002, and also 
there should be sufficient time to make mailing lists to send ballots 
to producers eligible to vote.

Paperwork Reduction Act

    The information collections proposed by this rule will be carried 
out using the referenda procedures of the Farm Service Agency and Form 
FSA MQ-5, Referendum Ballot. This rule will add no additional burden to 
that currently approved by OMB and assigned OMB Control Number 0560-
0182 under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 35).

List of Subjects in 7 CFR Part 29

    Administrative practices and procedures, Advisory committees, 
Government publications, Imports, Pesticides and pests, Reporting and 
recordkeeping procedures, Tobacco.

    For the reasons set forth in the preamble, 7 CFR Part 29 is 
proposed to be amended as follows:

PART 29--TOBACCO INSPECTION

Subpart B--Regulations

    1. The authority citation for subpart B is revised to read as 
follows:

    Authority: 7 U.S.C. 511m and 511r. Section 29.74a is also issued 
under sec. 759, Pub. L. 107-76, 115 Stat. 741 (7 U.S.C. 511s).

    2. A new Sec. 29.74a is added to read as follows:


Sec. 29.74a  Producer Referenda on Mandatory Grading.

    (a)(1) Method of conducting. Referenda shall be conducted among 
producers persons who were engaged in the production of the following 
types of tobacco harvested in the immediately preceding crop year: 
Flue-cured tobacco, types 11, 12, 13, 14; Kentucky-Tennessee fire-cured 
tobacco, types 22 and 23; Virginia fire-cured tobacco, type 21; 
Virginia sun-cured tobacco, type 37; dark air-cured tobacco, types 35 
and 36; burley tobacco, type 31; and cigar filler and binder tobacco, 
types 42, 43, 53, 54, and 55. A referendum will be conducted for each 
kind of tobacco and the results will apply to each individual kind. A 
producer is eligible to vote in referenda for each kind of tobacco they 
produce.
    (2) Farmers engaged in the production of tobacco. For purposes of 
the referenda, persons engaged in the production of tobacco includes 
any person who is entitled to share in a crop of the tobacco or the 
proceeds thereof because he or she shares in the risks of production of 
the crop as an owner, landlord, tenant, or sharecropper (a landlord 
whose return from the crop is fixed regardless of the amount of the 
crop produced is excluded) on a farm on which such crop is planted in a 
workmanlike manner for harvest: Provided, That any failure to harvest 
the crop because of conditions beyond the control of such person shall 
not affect his or her status as a person engaged in the production of 
the crop. In addition, persons engaged in the production of tobacco 
also includes each person who it is determined would have had an 
interest as a producer in the crop on a farm for which a farm allotment 
under the quota program (7 CFR part 723, subpart B) for the crop was 
established and no acreage of the crop was planted but an acreage of 
the crop was regarded as planted for history acreage purposes under the 
applicable Farm Service Agency commodity regulations of the Department 
of Agriculture.
    (3) One vote limitation. Each person eligible to vote in a 
particular referendum shall be entitled to only one vote in such 
referendum regardless of the number of farms in which such person is 
interested or the number of communities, counties, or States in which 
farms are located in which farms such person is interested: Provided, 
That:
    (i) The individual members of a partnership shall each be entitled 
to one vote, but the partnership as an entity shall not be entitled to 
vote;
    (ii) An individual eligible voter shall be entitled to one vote 
even though he or she is interested in an entity (including but not 
limited to a corporation) which entity is also eligible to vote;
    (iii) A person shall also be entitled to vote in each instance of 
his or her capacity as a fiduciary (including but not limited to a 
guardian, administrator, executor or trustee) if in such fiduciary 
capacity he or she is eligible to vote but the person for whom he or 
she acts as a fiduciary shall not be eligible to vote.
    (4) Joint and family interest. Where several persons, such as 
members of a family, have participated or will participate in the 
production of tobacco under the same lease or cropping agreement, only 
the person or persons who signed the lease or agreement, or agreed to 
an oral lease or agreement, shall be eligible to vote. Where two or 
more persons have produced or will produce tobacco as joint tenants, 
tenants in common, or owners of community property, each such person 
shall be entitled to one vote if otherwise eligible. The eligibility of 
one spouse does not affect the eligibility of the other spouse.
    (5) Minors. A minor shall be entitled to one vote if he or she is 
otherwise eligible and is 18 years of age or older when he or she 
votes.
    (6) Interpretation. In the case of tobacco on a farm where no 
acreage of tobacco is actually planted but an acreage of the commodity 
is regarded as planted under applicable regulations of the Department 
of Agriculture, persons on the farm who it is determined would have had 
an interest in the commodity as a producer if an acreage of the 
commodity had been actually planted shall be eligible to vote in the 
referendum.
    (b) Referenda Procedures. See part 717 of this chapter for 
eligibility criteria and the procedures to be used in carrying out 
mandatory grading referenda. Where not inconsistent with this part, the 
definitions contained in parts 717, 718 and 723 will govern 
administration of these referenda. A copy of these regulations, a 
referendum ballot, and voting procedures are available for review in 
any USDA Service Center.

    Dated: January 28, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-2403 Filed 1-29-02; 3:18 pm]
BILLING CODE 3410-02-P