[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 15859-15864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6668]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1463

RIN 0560-AI12


Tobacco Transition Payment Program; Cigar and Cigarette Per Unit 
Assessments

AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.

ACTION: Request for comments.

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SUMMARY: The Commodity Credit Corporation (CCC) is requesting comments 
about the calculation of assessments to fund the Tobacco Transition 
Payment Program (TTPP). Currently the cigar portion of the assessment 
uses a per unit calculation that treats all cigars, large and small, 
the same. That policy is under review as the result of a court 
decision. This review could also affect cigarettes, which are subject 
to similar provisions.

DATES: We will consider comments that we receive by May 23, 2011.

ADDRESSES: We invite you to submit comments on this notice. In your 
comment, please specify RIN 0560-AI12 and include the volume, date, and 
page number of this issue of the Federal Register. You may submit 
comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Mail: Jane Reed, Economic and Policy Analysis Staff, Farm 
Service Agency, USDA, 1400 Independence Ave., SW., Mail Stop 0515, 
Washington, DC 20250-0514.
    Comments may be inspected at the above address, in room 3722, 
between 8 a.m. and 4:30 p.m. Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: Jane Reed; phone: (202) 720-6782. 
Persons with disabilities or who require alternative means for 
communication (Braille, large print, audio tape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background--TTPP Authority and Existing Regulations

    TTPP was enacted in the Fair and Equitable Tobacco Reform Act of 
2004 (FETRA) (7 U.S.C. 518-519a). FETRA was enacted as Title VI of 
Public Law 108-357. FETRA ended the former tobacco quota program and 
price supports, and created the 10-year (2005 through 2014) roughly $10 
billion total TTPP. TTPP provides transition payments to certain 
tobacco producers and farm owners. TTPP is funded by assessments on 
manufacturers and importers of tobacco products. TTPP is sometimes 
called the ``tobacco buyout'' program. It is run by the Farm Service 
Agency (FSA) of the U.S. Department of Agriculture (USDA) on behalf of 
CCC. TTPP regulations are in 7 CFR part 1463.

Scope of This Request for Comments

    This notice involves the collection of TTPP assessments, which are 
authorized in section 625 of FETRA (see 7 U.S.C. 518d). This notice 
focuses on the ``Step B'' cigar assessment, explained in greater detail 
below and addressed in Sec.  1463.7 of the regulations. More 
specifically, this notice focuses on how those assessments are 
calculated for cigars, given that cigars vary widely in size, weight, 
and value but are assessed using a method based on the number of cigars 
handled.

[[Page 15860]]

    The relevant FETRA provisions are the same for cigarettes as for 
cigars. Cigarettes are, therefore, in theory subject to the same issue 
of interpretation that led to this notice, however, as a practical 
matter may not be substantially affected by its resolution because 
cigarettes, unlike cigars, are taxed at a constant rate and are 
generally uniform in size, or more uniform in size than cigars.
    Each year, FETRA assessments amount to about $1 billion for all 
tobacco product categories together. The assessments are collected 
quarterly.

Current TTPP Assessment Methodology

    Calculation by USDA of the amount due from an individual 
manufacturer or importer currently involves two steps. ``Step A'' 
allots a percentage of the total program assessment to six product 
categories specifically identified in FETRA (subsection 518d(c)) by 
Congress. Those six categories are cigarettes, cigars, snuff, roll-
your-own, pipe, and chewing tobacco.\1\ The initial ``Step A'' 
percentage allotments have been over time adjusted for changes in 
relative volume in the categories, as required by subsection 518d(c). 
The cigar and cigarette categories combined generate about 98% of the 
total TTPP assessments, and have since FETRA was enacted. The cigar 
``Step A'' allotment started at about 3 percent of the total allotments 
in fiscal year 2004, was up to 4 percent in 2009, and is now 7 percent. 
Cigarettes started at 96 percent and are now at 91 percent. Recent 
changes in volume may be in response to 2009 tax changes noted below.
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    \1\ Throughout this document, we refer to ``snuff, roll-your-
own, pipe, and chewing tobacco'' as the ``other'' four categories of 
tobacco.
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    Step B divides the category's assessment liability among the 
manufacturers and importers in that category. Currently, this is done 
by unit (``sticks'') for cigars under the USDA regulations. That unit 
method of calculating assessments is the heart of the controversy (the 
subject of a recent court case). All ``sticks'' are treated as equal. A 
very small cigar generates the same FETRA assessment as a very large 
cigar, irrespective of the difference in weight, size, and value. USDA 
specified the calculation that way in the regulations because of the 
provisions of subsection 518d(g). At issue in this request for comments 
is whether the ``unit'' provisions of subsection 518d(g) are required 
to be considered to interpret FETRA, which as interpreted by USDA calls 
for ``unit'' volume calculations for cigarettes and cigars and weight 
volume calculations for the other four categories of tobacco. This 
follows, generally, the way the products are taxed.

Tobacco Taxing Rates and Methods

    USDA does not have the authority to set tobacco product excise 
taxes. Excise tax rates and methods are outside the scope of this 
notice, however, taxing rates and methods are relevant to how TTPP 
assessments are calculated, or could be calculated, so some background 
on tobacco taxes is provided in this section to provide context.
    ``Small cigars'' (for taxing purposes under other statutory, non-
FETRA provisions) are those that weigh less than three pounds per 1,000 
units. They are taxed, by agencies other than USDA, per unit (a certain 
dollar amount per 1,000 units). ``Large cigars'' (literally those that 
are not ``small cigars'') are taxed at a percentage of their value up 
to a certain maximum amount per 1,000 units. Thus the maximum tax rate 
for large cigars is a unit tax, but not all large cigars are taxed at a 
unit rate, if the value generates a unit amount that is below the 
maximum. The tax rates changed in 2009. Cigarettes are taxed by unit--a 
certain amount per 1,000 units. There are two tax categories for 
cigarettes, large and small, but there are no actual marketings in the 
``large'' category. The other four categories of tobacco are taxed by 
weight.

Step A Percentage Allotment Calculation Method

    Step A percentage allotments to the tobacco product categories were 
initially set in FETRA. USDA adjusts those periodically for changes in 
volume under subsection 518d(c).
    USDA analyzed the Congressional Step A allotments and determined 
that the initial percentages were calculated by taking historical data 
for the six categories and then multiplying the weights or units in 
each category by the maximum tax rate (units for cigars and 
cigarettes--computed separately for large and small cigars--and weight 
for the others). This puts all product categories on a dollar basis.
    Although the calculation was done separately for small and large 
cigars, Congress assigned one Step A percentage to cigars as a single 
category. As a result, there are only six categories in subsection 
518d(c), not seven. There is one cigar category. There is not a 
separate ``small cigar'' category and a separate ``large cigar'' 
category.
    Each year USDA uses data from the U.S. Department of the Treasury 
(Treasury) and the U.S. Department of Homeland Security Bureau of 
Customs and Border Security (Customs)--the new volume figures (units 
for cigars and cigarettes)--and multiplies them by the 2004 tax rates 
to adjust the Step A allotments using the calculation Congress was 
determined to have used for the initial Step A allotments. Those former 
tax rates (not the 2009 revised rates) are used so that the adjustments 
to the Step A category allotments are for changes in volume (units and 
weights) only, not changes in tax rates.
    USDA issued a technical amendment in the Federal Register published 
December 10, 2010 (75 FR 76921-76923), explaining this policy regarding 
Step A and clarifying the rules. The Step A calculation is being 
challenged in a lawsuit different than the one that resulted in this 
notice. There it is argued against the USDA position that the new 2009 
tax rates should be used for the computation.

Step B Calculation

    This immediate controversy, however, involves, as noted, Step B. 
Step B is where a category's percentage allotment is divided among the 
manufacturers and importers in that category. As indicated, subsection 
518d(g) has been implemented by USDA to divide the single cigar Step A 
category allotment among all cigars by unit. Subsection 518d(e) 
provides that no manufacturer or importer should have to pay more than 
the ``pro rata'' share of the volume in their category.
    Small cigar manufacturers and importers have argued that 
calculating Step B by units makes them pay more than their ``pro rata'' 
share. They argue that ``volume'' under subsection 518d(e) cannot be 
measured by units in the manner currently undertaken by USDA despite 
subsection 518d(g).
    USDA's method treats all cigar units, large and small, the same for 
purposes of dividing up the single Step A cigar percentage allotment. 
USDA does not break out the cigar category first into small and large 
cigars and then apply the unit division of subsection 518d(g).

United States Code and Code of Federal Regulations (CFR) References

    The discussion of cigar assessments in this notice references both 
FETRA (as it appears in the United States Code) and the current 
regulations (as they appear in the CFR). To help commenters understand 
the context of this notice, the full text of section 518d is available 
at: http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t05t08+2465+11++%28%29%20%20.
    FETRA was enacted October 22, 2004. The final rule implementing 
TTPP was published on February 10, 2005 (70 FR

[[Page 15861]]

7007-7014). There is a rulemaking exception in section 519a and the 
final rule was published without prior comment. The regulation was 
amended by a final rule published in the Federal Register on April 4, 
2005 (70 FR 17150-17166). The regulation specifies a stick-based Step B 
cigar calculation and treats cigars as one category not two. The 
relevant regulation (for Step B calculations) is in 7 CFR 1463.7.

Step B as Specified in FETRA

    The Step B controversy arises out of Prime Time International, 
Inc., v. Vilsack (599 F.3d 678). There were several issues raised in 
the lawsuit. (The others will be addressed separately once the 
rulemaking issue is resolved.) The district court ruled for USDA on the 
Step B issue. The case then went to the Court of Appeals (the Court). 
The Court described the Step B unit disagreement this way:

    Prime Time contends that USDA's interpretation of the Fair and 
Equitable Tobacco Reform Act is contrary to ordinary construction 
and plain meaning of the word ``volume'' in the phrase ``gross 
domestic volume,'' which is defined in section 518d(a)(2) as the 
``volume of tobacco products-removed (as defined by section 5702 of 
Title 26)'' and ``not exempt from tax'' pursuant to provisions not 
relevant to this appeal, supra note 1. It observes that where 
statutory terms, such as ``volume'' here, are not defined in a 
statute, courts give them their ordinary meaning, citing Asgrow Seed 
Co. v. Winterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 
(1995). USDA responds that ``volume'' is ``clearly explained'' in 
FETRA to mean the number of cigars because section 518d(g)(3) 
provides that the number of cigars determines the ``volume of 
domestic sales'' and thus ``market share'' under section 518d(f).

    The Court described the suggested alternative to USDA's Step B 
calculation as dividing the Step A percentage into small and large 
cigar subclasses and then applying the unit division to each category 
separately. The Court said:

    Prime Time maintains, because FETRA requires that the allocation 
within a tobacco class be ``on a pro rata basis'' with ``[n]o 
manufacturer or importer * * * required to pay an assessment that is 
based on a share that is in excess of the manufacturer's or 
importer's share of domestic volume.'' 7 U.S.C. 518d(e). Therefore, 
it argues, after allocating the assessment by class of tobacco 
products, USDA should divide the cigar class assessment into sub-
classes of large and small cigars, with the relative allocation 
determined by total weight, and then divide the assessments among 
individual large and small cigar manufacturers and importers on a 
per-stick basis from the subdivided assessments, satisfying 
subsection (g)(3)(A). Prime Time contends such a method is required 
by the plain text of subsection (e) as well as subsection (i)(4)(B), 
which, upon administrative appeal, requires the Secretary to ``make 
any revisions necessary to ensure that each manufacturer and 
importer pays only its correct pro rata share of total gross 
domestic volume from all sources.''

    As to the government's position that subsection 518d(g)(3) 
unambiguously required that all cigars be divided by unit (without a 
breakout of cigars into subclasses before the division by units), the 
Court said it did not see FETRA as being unambiguous:

    The plain text of FETRA does not self-evidently vindicate USDA's 
two step assessment method. Under FETRA, the ``volume of domestic 
sales'' and ``market share'' are not synonymous with ``gross 
domestic volume.'' FETRA provides, for example, that ``[t]he volume 
of domestic sales shall be calculated based on gross domestic 
volume,'' 7 U.S.C. 518d(g)(2) (emphasis added), indicating two 
different meanings for the terms. And section 518d(g)(3)(A) does 
not, on its face, require that a compound number of large and small 
cigars serve as the denominator when calculating a manufacturer's or 
importer's volume of domestic sales on a per-stick basis. Most 
critically, USDA's interpretation appears to ignore the pro-rata-
basis limitation Congress imposed on assessments within a tobacco 
class in subsection (e). As interpreted by USDA, it is irrelevant 
that one large cigar consumes far more tobacco than a small cigar, 
and so accounts for a far larger segment of the market than its per-
stick contribution would indicate. Yet the text and structure of the 
statute titled the Fair and Equitable Tobacco Reform Act suggests an 
easy counting metric for cigarettes and cigars may not override a 
statutory mandate that assessments be ``allocated on a pro rata 
basis'' within each class of tobacco product, id. Sec.  518d(e)(1). 
Prime Time's interpretation suggests that there is at least one way 
to interpret FETRA's provisions consistently and in harmony, with 
none made superfluous or insignificant. See Corley v. United States, 
------ U.S. ------, 129 S.Ct. 1558, 1566, 173 L.Ed.2d 443 (2009); 
City of Anaheim, Cal. v. FERC, 558 F.3d 521, 522 (D.C.Cir.2009).
    For the purpose of this appeal, the court need only observe that 
USDA's present interpretation is not mandated by the plain text of 
FETRA. USDA does not maintain that its interpretation of FETRA is a 
permissible view of an ambiguous statute entitled to deference under 
Chevron step 2, 467 U.S. at 843, 104 S.Ct. 2778. Given that FETRA 
does not appear to be susceptible of only a single interpretation, 
we reverse and remand to the district court with instructions to 
remand Prime Time's FETRA claims to the USDA for further 
proceedings. See PDK Labs. Inc. v. U.S. DEA, 362 F.3d 786, 797-98 
(D.C.Cir.2004).

Alternative Step B Methods

    As a result, the Court remanded the claims to USDA to reconsider 
and this request for comment is part of the process of reconsidering. 
Several points should be noted. First, the Court refers to weights for 
dividing cigars into two Step A subcategories. USDA does not have 
weight data for domestically manufactured small and large cigars. 
Cigars are not taxed based on weight. Weight information is not 
available on the Treasury reports and may not be known or reported by 
any part of the Federal government for domestically manufactured 
cigars. (There has been no reason for the Federal government to collect 
weights for cigars because they are not taxed on that basis). The same 
is true of cigarette weight data. USDA could ask the companies for the 
data, but subsection 518d(h) of FETRA requires tax reports to be used 
for these calculations. Those reports do not include the weight data 
either. Also, each manufacturer would be dependent on the accuracy of 
all other manufacturer's weight data reports to receive a correct 
assessment. The title of subsection (h), the subsection mentioned in 
(g), seems telling in this regard--``Measurement of Volume of Domestic 
Sales.'' The only metric on the reports for cigars is units.
    There is another problem with this alternate approach. Ultimately, 
the alternative requires that large cigars be divided by unit. There 
are presumably variations in weight among small cigars but, in any 
event, there are wide weight and size variations among large cigars and 
if to pay more than the share represented by the respective weight 
violates subsection 518d(e), then it would appear that for the makers 
of smaller large cigars the alternative would violate subsection 
518d(e). Therefore, it seems, the alternative would be self-
contradictory.
    To, however, do the Step B division strictly on weight (or on some 
other measure like taxes paid) would appear to disregard subsection 
518d(g). If the point of the interpretation is to give meaning to all 
part of the statute, then dismissing subsection 518d(g) does not work. 
In the reply brief submitted in support of an alternative approach in 
the litigation, it was suggested that taxes paid would be used in lieu 
of weight:

    If FETRA is read plainly, wholly and harmoniously, then the 
cigar assessment process is clean, simple, and direct: (A) Allocate 
the amount of the total assessment among the six classes based on 
the federal excise taxes paid by each class, with separate figures 
for large and small cigars as USDA currently does. (B) Divide the 
class assessment for cigars into large and small cigar segments. 
This will divide the market share of cigars along the lines of the 
overall size and weight (and coincidently market value) of the 
products removed. (C) For large cigars, divide the amount of the 
total cigar assessment attributable to large cigars by the number or 
stick count of the large cigars

[[Page 15862]]

removed by each company to establish a company assessment. For small 
cigars, divide the amount of the total cigar assessment attributable 
to small cigars by the number of small cigars each company removes 
to establish the company assessment. This procedure respects all of 
FETRA's sections, calculating market share based on number of cigars 
while also ensuring assessments do not exceed respective shares of 
total gross domestic volume from all sources, as required by FETRA.

    That approach still leaves dividing up large cigars by units. (That 
is also a problem for small cigars if small cigars are not standard in 
size.) Therefore, it has the same internal contradiction problem as the 
strict weight based alternative. Plus, as noted below, weights and 
taxes for cigars do not vary proportionately. To the contrary, taxes 
actually in some cases, at least since 2009, vary inversely to the size 
of the cigar in those instances where smallish large cigars are big 
enough to be taxed on a value basis rather than a unit basis.
    The Court referred to common uses of the term ``volume.'' It could 
be argued that volume might suggest weight in the proper instance. It 
does not, it would seem, suggest taxes paid. As for the use of units, 
there is no reason why volume cannot be a number and as to FETRA, as we 
note below, the word ``volume'' is strictly defined in subsection 
518d(g) as a number and that makes particular sense it would seem since 
the government does not have weights for domestically manufactured 
cigars and it was based on units that the Step A calculation was made. 
Thus, and for the other reasons given here, the only definition for 
``volume'' that makes sense is the actual one given in the statute--
that which is in (g). This does not seem at all unusual for the reasons 
given. For example, if the issue were the volume of pedestrian traffic 
on a bridge, volume could well be measured as a number rather than the 
weight of the person who crossed the bridge or the taxes they paid.
    Also, in the alternative suggested in the litigation, the Step A 
allotment would effectively be a seven category calculation. Yet, FETRA 
specifically only provides for six. There does not appear to be any 
rational reason why Congress would have put six in FETRA if seven were 
meant.
    And, there is legislative history to suggest the use of six 
categories not seven was no accident. FETRA was enacted in October of 
2004. The Senate Bill passed that summer had two assessments. One was 
to be a FDA assessment (ultimately jettisoned). The Bill's FDA 
assessment followed the same structure as section 518d. There was in 
the FDA assessment a Step A division among categories but that Step A 
division had seven categories, not six, as ``large'' and ``little'' 
cigars were made separate categories (150 C.R. 16047 (July 16, 2004), 
also 150 C.R. S8389). (``Little'' was defined the same as ``small'' is 
now.) The TTPP assessment in the Senate Bill did not cover cigars at 
all (150 C.R. 16056 (July 16, 2004), also 150 C.R. S8397). There were 
only five categories. But in the end, the FDA provisions were taken out 
of the legislation that enacted FETRA and cigars were added to the TTPP 
without the cigar subcategories of the FDA assessment. That is, in the 
TTPP provisions that are now law, Congress went from five to six 
categories, specifically rejecting the seven-category (two-cigar 
category), FDA assessment model of the Bill that was at one time under 
consideration and which is what is actually suggested here. That is, 
Congress seems to have intentionally made cigars one category, not two, 
after considering the alternative. In addition, recent events noted 
below in which manufacturers have been fleeing the small cigar category 
for the cheaper taxes of the large cigar category indicates that there 
is not much difference between cigars on either side of the margin of 
the two categories, making it seemingly burdensome and market-affecting 
to separate the categories, which may have been a motivation for 
Congress as well.
    That would seem to be important in this instance since the 
alternative suggested in the litigation was a two-cigar category 
alternative. Seemingly, Congress considered, but rejected, the 
breakout. The Senate Bill TTPP assessment provisions as they stood 
before cigars were added as a category was basically the same as they 
are now. Cigars were simply added.
    Before cigars were added, size differential was not really a 
potential issue in theory because the other four categories of tobacco 
were weight categories and cigarettes may not have the weight 
variations of cigars. Congress added cigars purposely as a single 
category and did nothing to add provisions dealing with separating 
cigars by size.
    To add a size element now or subcategories would seem to be to 
legislate rather than to interpret the legislation. FETRA has been in 
existence for 6 years without change. The definition of volume that 
seems to apply and be intended is that of subsection 518d(g)(3). That 
is why, for now, USDA, pending comment, maintains the current 
regulation and Step B procedure.

Fairness of Assessment, Congressional Intent

    With regard to the alternative, there is in its favor, to the 
extent relevant, the potential equitable concern of small cigars 
generating the same liability as large ones. We address that more 
below. The Step A calculations are done separately for small and large 
cigars even though the end result is one Step A category. In support, 
on the other hand, of the current method, reading subsection 518d(g) as 
requiring a unit method can be seen as actually giving meaning to the 
other provisions of FETRA rather than being contrary to them.
    FETRA as it was finally enacted does bounce among several concepts. 
Among them are (1) ``market share'' and (2) ``volume of domestic 
sales'' and (3) ``gross domestic volume.'' Also there is the ``pro 
rata'' language. Under subsection 518d(e), USDA is to allocate Step B 
on a ``pro rata'' basis and subsection 518d(i)(4) specifies that each 
manufacturer and importer only pay their ``correct share of total gross 
domestic volume from all sources.'' Specifically in subsection 518d(e) 
FETRA provides that the assessment be ``allocated on a pro rata basis'' 
based on the manufacturer's or importer's ``share of gross domestic 
volume.''
    In the alternative view suggested in the litigation, it is 
suggested that a maker of small cigars is paying more than its ``pro 
rata'' share of the ``gross domestic volume'' if it pays the assessment 
as currently calculated because ``gross domestic volume'' cannot, it is 
suggested there, be based just on units. However, in subsection 518d(f) 
FETRA requires that the manufacturers and importers be assessed based 
on ``market share'' and ``market share'' is defined in subsection 
518d(a) to mean ``volume of domestic sales.''
    There appears to be a logical progression towards subsection 
518d(g), which is entitled ``Determination of volume of domestic 
sales.'' That is also the expression in the title of subsection 
518d(h). Subsection 518d(g)(2) specifies that ``the volume of domestic 
sales'' be calculated based on ``gross domestic volume'' therefore 
tying the two concepts together, or seeming to, and then subsection 
518d(g)(3) specifies that ``volume of domestic sales'' will be measured 
by units for cigars. Therefore, considering all of the sections 
together and weighing them all together with all of the potential for 
controversy that they may produce, it seems on balance at this time and 
subject to comment and further consideration that all FETRA

[[Page 15863]]

subsections seem to be tied together and given precise meaning in 
subsection 518d(g)(3) by tying the measure to units. This 
interpretation of all the parts of the statute to resolve any 
ambiguities produced by the various subsections seems particularly 
strong when all the suggested alternatives suggested so far result in 
contradictory interpretation for separate subsections of FETRA or 
involve data that no Federal Government agency has and cannot be 
verified if supplied by manufacturers, and would involve calculations 
that Congress presumably would have laid out in the statute. This view 
is not one of convenience on the part of the agency but reflects the 
actual provision of the statute both as to what Congress did express 
and what it did not.
    Congress in subsection 518d(h) specifically called for the use of 
official government reports that do not include weight data for 
domestically manufactured cigars, and that section is specifically 
entitled ``Measurement of Volume of Domestic Sales'' and has only a 
unit metric for cigars. It was Congress that recognized the need for a 
ready method to collect the assessment. It was an add-on to the taxes 
paid elsewhere. The reports show taxes paid, but taxes paid is not a 
volume measure--a view that may be at issue in the Step A litigation 
referred to earlier--and, in any event, (h) is referenced in (g) which 
specifies that the ``volume'' method to be used is a unit method.
    If Congress wanted to calculate Step B some other way, presumably 
Congress would have told USDA what to do and not left parts of the 
calculation to speculation, particularly given how detailed the 
specifications otherwise are in FETRA. Congress could have omitted the 
unit provision and specified that payments would be made on the basis 
of taxes paid. They did not do that. It may be that a particular party 
can show that the unit figures used by USDA are inaccurate. But that is 
a different issue than the method of the assessment.
    It seems to follow, pending comment, that a manufacturer's or 
importer's ``pro rata'' share of the cigar volume would under FETRA and 
these provisions be their share of the total number of units together 
of all cigars thus resolving any ambiguities that might otherwise be 
left to debate by the more general provisions elsewhere in FETRA. The 
word ``based'' in subsection 518d(g)(2) would not seem to mean merely 
``derived from'' allowing other elements to intercede in the volume 
determination since subsection 518d(f) (in conjunction with subsection 
518d(a)) provides that the ``volume of domestic sales'' is 
determinative and subsection 518d(g)(3) specifies that that volume is a 
unit-based matter solely. It is not derived from that number--it is 
that number, or so FETRA seems to say.
    The current approach therefore does seem to give meaning to all 
parts of FETRA. The current approach handles the matter in a coherent 
and logically consistent way. Companies, accordingly, do seem under the 
current regime to pay their pro rata share of the correct volume. 
Subsection 518d(g) defines ``volume'' (and is the only provision to do 
so) and therefore gives meaning to other parts of FETRA. Plus, as 
noted, the calculation method in FETRA is detailed and specific and 
Congress only enacted six categories not seven and seemed to do so 
intentionally. Congress has never changed FETRA even though it changed 
other taxes among the tobacco product categories in 2009.
    The alternatives discussed in this notice are largely based on 
interpretations of 7 U.S.C. 518d(e) and whether the current method 
provides a fair assessment so that no company is paying more than its 
share of gross domestic volume. The current method that USDA uses could 
arguably be seen as ``unfair'' because tiny cigars generate as much 
assessment as very large, and expensive, cigars. However, USDA cannot 
change its obligations on the basis of what it believes to be fair not 
fair--that would be to legislate and it is not clear that Congress was 
unaware of these issues or regarded the current method as unfair. There 
is nothing in the statute to suggest that the calculation method is a 
policy call and, in any event on further consideration, there is no 
reason to necessarily consider the assessments ``unfair'' as enacted--
or now.
    Rather, the Step B assessments have only been about one-third of 
one cent per unit for small cigars, or about $3 per 1,000 units. This 
does not seem to have impeded the marketing of small cigars, judging 
from the numbers that have been reported to USDA from the tax reports. 
Presumably, this very small assessment was passed on to consumers. It 
was common to all parties in the same category so there was no 
competitive advantage.
    Further, we understand that small cigars can be packaged like 
cigarettes, can be about the same size, and can compete with 
cigarettes. In 2004 the difference in general tax rates between small 
cigars and cigarettes was about $18 per 1,000 units (``small cigars'' 
were taxed at about $2 per 1,000 units). The FETRA assessment of $3 per 
1,000 units was much less than that difference and also cigarettes 
themselves generate a FETRA assessment. ``Small cigars'' thus would 
still have had an overall tax advantage. That may have figured in 
Congress's thinking in enacting FETRA.
    There have been some changes in the tax situation since as noted 
above, the 2009 tax changes equalized ``small cigar'' and cigarette tax 
rates at about $50 per 1,000 units, but made no changes to FETRA. 
However, the tax changes apparently motivated small cigar makers to 
increase the size of their cigars so that they could be taxed at a 
value rate (about 50 percent of value) as ``large cigars'' (which 
results in an amount well below the maximum unit rate for large cigars) 
and not at a unit rate as small cigars.
    At current rates, taxes for smaller large cigars (those are just 
heavy enough to be in the ``large'' category) are small enough (because 
their value is low enough) that they are taxed more cheaply (converted 
to a per unit basis) than those in the ``small cigar'' category. That 
is, these now slightly bigger cigars are now taxed, per unit, at a rate 
that is well below the roughly $50 per 1,000 units rate for ``small 
cigars'' and cigarettes. In fact, the difference between these smaller 
large cigars (which still may be marketed like the small cigars of old 
in packages of 20) and cigarettes may even be greater than the old 
difference between ``small cigars'' and cigarettes prior to the 2009 
tax changes. That difference, it appears, can be even greater than the 
$18 difference under the former rates. Smaller large cigars still have 
a tax advantage over cigarettes.
    We add in the way of perspective on these issues that there has 
been a reported shift in market volume from the ``small'' cigar 
category into the large category and cigar numbers have increased 
steeply as reflected in the change in the FETRA cigar Step A allotment. 
This means that that those that would benefit from a breakout of 
``small cigars'' may now no longer so benefit from the alternate method 
of making the Step B calculation, thus suggesting a certain volatility 
in result which of itself may have been something that Congress would 
have wanted to avoid. Some companies that formerly exclusively sold 
small cigars appear to be primarily selling ``large'' cigars to 
maintain their tax advantages over cigarettes. ``Large cigar'' market 
volume numbers have increased substantially since the 2009 tax change. 
As for the future, if all small cigars are reformulated to meet the 
weight per 1,000 units requirements of the large cigar category and its 
cheaper tax rates, it could be that there are no marketings at all in 
the small cigar category, in which case the result of using the

[[Page 15864]]

alternate method would be exactly the same as the method currently used 
by USDA.
    But assuming a situation in which there are substantial small cigar 
marketings in the actual ``small cigar'' tax category, changing the 
Step B method would substantially change assessment levels. Even 
applied to assessment data from the first quarter of 2010, it appears 
that the alternative method of using cigar subcategories would have 
increased the large cigar unit assessment as much as 12 times. That 
difference might actually have been greater before then because in 
2010, the shift in market volume from small to large cigars had already 
begun.
    We request comments on all aspects of the Step B assessment. 
Commenters can address whether they believe the Court's decision 
absolutely requires a change or merely requires a change if agency 
reconsideration of the current method of Step B division suggests that 
a change is appropriate. Comments in support of a change should suggest 
where USDA would obtain the data to implement the alternative and how 
that information would be verified. Comments should address the 
question of whether a change would be retroactive for all, or 
prospective only, for those other than the company in connection with 
the current litigation. Commenters may want to indicate whether ``small 
cigars'' are standard in size or provide other marketing information 
that may be germane to the consideration of this issue.
    Commenters may want to address whether cigarettes should be 
impacted by any potential resulting changes. Because the statutory 
provisions at issue are also used for the assessment of cigarettes, 
particularly with respect to the use of units, cigarette manufacturers 
and importers may wish to comment on whether the cigarette Step B 
method currently in use should be changed or remain the same. For 
example, if our assumption that all cigarettes weigh the same is 
inaccurate, a change to the Step B calculation to take weight into 
account could impact cigarette manufacturers or importers.

Conclusion and Guidance for Comments

    CCC is requesting comments from the public on the method used to 
calculate TTPP assessments for cigar manufacturers and importers, and 
any related issues. Any change would be reflected in the regulations in 
7 CFR part 1463. Specific comments addressing the issues raised above 
are preferred, but all comments are welcome. Proposals for alternatives 
should address data sources and costs and the provisions of FETRA that 
support the alternative. This notice does not change the regulations; 
any change would be published in a subsequent rulemaking document. 
Because FETRA exempts TTPP from notice and comment rulemaking, any 
future action would likely be a final rule.
    The following suggestions may be helpful for preparing your 
comments:
    <bullet> Explain your views as clearly as possible.
    <bullet> Describe any assumptions that you used.
    <bullet> Provide any technical information and data on which you 
based your views.
    <bullet> Provide specific examples to illustrate your points.
    <bullet> Offer specific alternatives to the current regulations or 
policies and indicate the source of necessary data, the estimated cost 
of obtaining the data, and how the data can be verified.
    <bullet> Submit your comments to be received by FSA by the comment 
period deadline.

Executive Order 12866

    The Office of Management and Budget (OMB) designated this notice as 
not significant under Executive Order 12866, ``Regulatory Planning and 
Review,'' and therefore has not reviewed this notice.

    Signed in Washington, DC, on March 15, 2011.
Val Dolcini,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2011-6668 Filed 3-21-11; 8:45 am]
BILLING CODE 3410-05-P