[Federal Register Volume 67, Number 43 (Tuesday, March 5, 2002)]
[Rules and Regulations]
[Pages 9895-9897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5228]



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  Federal Register / Vol. 67, No. 43 / Tuesday, March 5, 2002 / Rules 
and Regulations  

[[Page 9895]]



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: Final rule and notice of referenda.

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SUMMARY: This rule establishes procedures which the U.S. Department of 
Agriculture (USDA) will use in conducting a referenda among producers 
of each kind of tobacco that is eligible for price support to determine 
whether they favor mandatory grading of that kind of tobacco. 
Currently, tobacco that is not sold at auction is not subject to 
mandatory grading.

DATES: Effective Date: March 6, 2002.
    Referenda Dates: The voting periods for the producer referenda will 
be March 11-15, 2002, for flue-cured tobacco, types 11, 12, 13, 14; and 
burley tobacco, type 31; and March 18-22, 2002, for 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; and cigar filler and binder tobacco, types 42, 43, 53, 54, 
and 55.

FOR FURTHER INFORMATION CONTACT: 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; 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 (Public Law 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.
    The USDA published in the Federal Register on February 1, 2002 (67 
FR 4926) a proposed rule to 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. The USDA requested comments on the proposal which expired on 
February 11, 2002. One comment was received from a major tobacco 
manufacturing company. This respondent stated that a copy of a sample 
ballot indicates that a grower only votes ``yes'' or ``no'' for 
mandatory grading and that the ballot does not notify the grower that 
user fees for grading which would be a consequence of the referendum 
passing. AMS does not believe that the ballot is the appropriate place 
for notices of this kind. Tobacco producers will, of course, be 
informed that if mandatory grading is adopted, user fees will be 
established for non-auction inspections and that these fees would be 
established in the same manner and be comparable to user fees for the 
grading of tobacco sold at auction. These fees are chargeable to the 
grower consigning the tobacco for sale.
    The respondent also stated that only growers who would directly pay 
the mandatory grading fees should be eligible to vote in the referenda. 
Such a limitation, however, is not permissible under the statute, which 
provides that the referenda shall be conducted among tobacco producers.
    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 will 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 1464.2.
    Producers of each kind of tobacco will 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 final rule 
will follow those provisions as they apply to tobacco producers and 
will 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 includes 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 will 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

[[Page 9896]]

definitions contained in Secs. 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.
    This final rule establishes procedures for conducting the producer 
referenda. The voting periods for the producer referenda will be March 
11-15, 2002, for flue-cured tobacco, types 11, 12, 13, 14; and burley 
tobacco, type 31; and March 18-22, 2002, for 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; and cigar filler and binder tobacco, types 42, 43, 53, 54, and 
55.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register in order to fulfill 
the requirements of the statute that the referenda be conducted by 
March 31, 2002.

Executive Order 12866 and 12988

    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 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 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 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.

Paperwork Reduction Act

    The information collections 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 practice and procedure, Advisory committees, 
Government publications, Imports, Pesticides and pests, Reporting and 
recordkeeping procedures, Tobacco.

    Accordingly, 7 CFR part 29 is 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 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

[[Page 9897]]

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 chapter VII of this title 
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 of this title will 
govern administration of these referenda. A copy of the regulations in 
parts 717, 718, and 723 of this title, a referendum ballot, and voting 
procedures are available for review in any USDA Service Center.

    Dated: February 28, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-5228 Filed 3-1-02; 10:49 am]
BILLING CODE 3410-02-P