This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

76921 

Vol. 75, No. 237 

Friday, December 10, 2010 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1463 

RIN 0560–AH30 

Tobacco Transition Payment Program; 

Tobacco Transition Assessments 

AGENCY: Commodity Credit Corporation, 

USDA. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Commodity Credit 

Corporation (CCC) is modifying the 

regulations for the Tobacco Transition 

Payment Program (TTPP) to clarify, 

consistent with current practice and as 

required by the Fair and Equitable 

Tobacco Reform Act of 2004 (FETRA), 

that the allocation of tobacco 

manufacturer and importer assessments 

among the six classes of tobacco 

products will be determined using 

constant tax rates so as to assure that 

adjustments continue to be based solely 

on changes in the gross domestic 

volume of each class. This means that 

CCC will continue to determine tobacco 

class allocations using the Federal 

excise tax rates that applied in fiscal 

year 2005. These are the same tax rates 

used when TTPP was implemented and 

must be used to ensure, consistent with 

FETRA, that changes in the relative 

class assessments are made only on the 

basis of changes in volume, not changes 

in tax rates. This technical amendment 

does not change how the TTPP is 

implemented by CCC, but rather 

clarifies the wording of the regulation to 

directly address this point. 

DATES: Effective Date: December 10, 

2010. 

FOR FURTHER INFORMATION CONTACT: Jane 

Reed, Economic and Policy Analysis 

Staff, Farm Service Agency (FSA); 

phone: (202) 720–6782, e-mail: 

jane.reed@wdc.usda.gov. Persons with 

disabilities or who require alternative 

means for communication (Braille, large 

print, audio tape, etc.) should contact 

the U.S. Department of Agriculture 

(USDA) Target Center at (202) 720–2600 

(voice and TDD). 

SUPPLEMENTARY INFORMATION: FETRA 

(7 U.S.C. 518–519a), which was 

contained in the American Jobs Creation 

Act of 2004 (Pub. L. 108–357) authorizes 

TTPP, sometimes called the ‘‘tobacco 

buyout’’ program. Under TTPP, eligible 

former tobacco quota holders and 

tobacco producers receive payments in 

10 annual installments in fiscal years 

2005 through 2014. To fund TTPP, CCC 

collects quarterly assessments from 

domestic manufacturers and importers 

of tobacco products. FETRA specifies 

the methodology for determining 

quarterly assessments. 

As specified in FETRA and the TTPP 

regulations, the assessments are 

allocated among six statutorily-specified 

classes of tobacco products: Cigarettes, 

cigars, snuff, roll-your-own, chewing, 

and pipe. FETRA specifies further the 

initial relative percentages that each 

class will pay of the total assessment 

levied each year of the program. 

Analysis by USDA determined that the 

initial allocation in FETRA was 

calculated using tax data and volumes 

published by the Treasury Department’s 

Alcohol and Tobacco Tax and Trade 

Bureau (TTB). Specifically, it appeared 

that Congress used calendar year 2003 

relevant tobacco class volume amounts 

(volume measured by using number of 

sticks for cigarettes and cigars, pounds 

for the other classes) from the published 

TTB data and multiplied those numbers 

by the then-applicable maximum excise 

tax rate. In this way, each class’ volume 

was converted from differing bases 

(sticks and pounds) to a tax dollar 

figure. The tax figures were added 

together for a six-class total. Each class’ 

allocation was then its percentage 

contribution to the six-class total of 

excise taxes and that percentage was 

then specified in section 625 of Pub. L. 

108–357 (7 U.S.C. 518d) as each class’ 

initial percentage of the overall 

allocation for TTPP. 

The allocation of the total annual 

assessment needed to fund TTPP among 

the six classes is commonly referred to 

as Step A of the assessment process; 

Step B is the division of assessments 

within each class of that class’ share 

among the manufacturers or importers 

of products in that particular class. This 

technical amendment only addresses 

Step A. 

The initial percentage assigned to 

cigarette tobacco in FETRA was 96.331 

percent, as specified in 7 U.S.C. 

518d(c)(1). That allocation, and the 

allocation to the other five classes, was 

not intended to be permanent. Rather, as 

specified in 7 U.S.C. 518d(c)(2), it was 

provided in FETRA that for subsequent 

fiscal years, the Secretary would 

periodically adjust the percentage of the 

total amount required under subsection 

(b) to be assessed against, and paid by, 

the manufacturers and importers of each 

class of tobacco product specified in 

paragraph (1) to reflect changes in the 

share of gross domestic volume held by 

that class of tobacco product. 

Thus, FETRA provides a specified 

restriction for adjustments to the Step A 

allocations to reflect changes in the 

share of gross domestic volume only, 

not changes in tax rates. 

The current regulation in 7 CFR 

1463.5(a) specifies that ‘‘the national 

assessment will be divided by CCC 

among each class of tobacco based upon 

CCC’s determination of each class’s 

share of the excise taxes paid. The value 

of the excise taxes paid for each class of 

tobacco will be based upon the reports 

filed by domestic manufacturers and 

importers of tobacco products with the 

Department of the Treasury and the 

Department of Homeland Security 

***’’ 

Excise taxes paid are based on the 

volume of tobacco calculated from those 

reports, consistent with FETRA’s intent 

to base any changes in the Step A 

allocations on changes in gross domestic 

volume. To assure the correctness of the 

result, a constant tax rate must be used, 

but the regulation is silent on which 

rates will be used. Until 2009, the point 

was moot in any event because the 

excise rates were, until then, 

unchanged. However, on April 1, 2009, 

Congress changed tobacco excise tax 

rates with the passage of the Children’s 

Health Insurance Program 

Reauthorization Act of 2009 (Pub. L. 

111–3) and a question has been raised 

subsequently about which rates would 

be used for the calculation. The 

regulation is being clarified accordingly 

to address that question specifically. As 

specified in this technical amendment, 

CCC will continue to use the ‘‘old’’ rates 


jdjones on DSK8KYBLC1PROD with RULES
76922 Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Rules and Regulations 

(the rates that were in effect when the 

program was established) for the Step A 

adjustments because otherwise the 

adjustments would be for changes in the 

tax rates instead of changes in volume. 

Changing the Step A allocations based 

on changes in excise tax rates would not 

be consistent with FETRA. If, for 

example, there were only two classes of 

products and for some reason the tax 

rate of one doubled but the volumes of 

the two classes remained exactly the 

same, then the Step A shares of the two 

classes would change dramatically if the 

new tax rates were used even though 

there had been no change in the 

volumes. That would not be consistent 

with FETRA because there would be an 

adjustment that was not based on a 

change in volume. The new tax rates, 

adopted in 2009, were proportionately 

raised more for cigars and roll-your-own 

tobacco than for the other classes, and 

if the new tax rates were used, the 

assessment for cigars and for roll-yourown tobacco would be adjusted to a 

percentage that would be much higher 

than if the adjustments are based only 

on changes in volume. In the meantime, 

those for cigarettes and some other 

classes would be much lower, 

independent of any changes in volume, 

and contrary to FETRA. In the case of 

cigars, the assessment would be nearly 

triple. 

The continued use of the old rates has 

been reflected in calculations for Step A 

adjustments published on the FSA 

website both in the fall of 2009 and this 

year. CCC will, however, continue to 

make adjustments based on changes in 

volume and, in fact, because of those 

adjustments the cigarette share of the 

assessments has declined from the 

original 96.3 percent to 91.57 percent 

for the upcoming year. As the published 

calculations show, a class’ individual 

percentage volume decline or increase is 

not necessarily equal to the decline or 

increase in its proportion of the total 

among classes. The following 

hypothetical example is intended to 

demonstrate why this occurs: Assume 

there were just two categories of 

products and one had a volume of 100 

and the other had a volume of 1, so that 

the larger category’s proportion of the 

total volume, 100/101, would be over 99 

percent. Assume next that the first 

category had a 50 percent decline in 

volume down to 50 units while the 

other stayed constant at 1. The new total 

volume would be 51 for the two 

categories. The larger category’s 

proportion of the total volume (50 of 51) 

would still be over 98 percent despite 

the 50 percent decline in its volume. 

Again, this is a hypothetical example 

and the actual numbers used in the 

actual agency calculations are set out in 

the published calculations. 

This amendment ensures that the 

regulation is clear and remains 

consistent with FETRA. Because this is 

a clarification only, and because this 

action is exempt from notice and 

comment rulemaking as specified in 7 

U.S.C. 519a, this action is taken without 

prior public comment, although there 

have been public inquiries about this 

issue. 

This amendment also corrects the 

authority for part 1463 to refer to the 

United States Code citation for FETRA, 

rather than the public law citation. 

Executive Order 12866 

This technical amendment did not 

require Office of Management and 

Budget (OMB) designation under 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and therefore 

OMB has not reviewed this rule. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to the notice and comment 

rulemaking requirements under the 

Administrative Procedure Act (5 U.S.C. 

553). This rule is not subject to the 

Regulatory Flexibility Act since CCC is 

not required to publish a notice of 

proposed rulemaking for this rule. This 

action is exempt from notice and 

comment rulemaking (7 U.S.C. 519a). 

Environmental Review 

The environmental impacts of this 

rule have been considered in a manner 

consistent with the provisions of the 

National Environmental Policy Act 

(NEPA, 42 U.S.C. 4321–4347), the 

regulations of the Council on 

Environmental Quality (40 CFR parts 

1500–1508), and FSA regulations for 

compliance with NEPA (7 CFR part 

799). The rule change is a technical 

amendment and is solely administrative 

in nature. Therefore, FSA has 

determined that NEPA does not apply to 

this Final Rule and no environmental 

assessment or environmental impact 

statement will be prepared. 

Executive Order 12372 

Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs,’’ requires consultation with 

State and local officials. The objectives 

of the Executive Order are to foster an 

intergovernmental partnership and a 

strengthened Federalism, by relying on 

State and local processes for State and 

local government coordination and 

review of proposed Federal Financial 

assistance and direct Federal 

development. This rule neither provides 

Federal financial assistance or direct 

Federal development; it does not 

provide either grants or cooperative 

agreements. Therefore this program is 

not subject to Executive Order 12372. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, ‘‘Civil Justice 

Reform.’’ This rule would not preempt 

State and or local laws, and regulations, 

or policies unless they present an 

irreconcilable conflict with this rule. 

Before any judicial action may be 

brought concerning the provisions of 

this rule, appeal provisions of 7 CFR 

parts 11 and 780 would need to be 

exhausted. This rule would not preempt 

a State or tribal government law, 

including any State or tribal government 

liability law. 

Executive Order 13132 

This rule has been reviewed under 

Executive Order 13132, ‘‘Federalism.’’ 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

Federal government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Nor does this rule 

impose substantial direct compliance 

costs on State and local governments. 

Therefore, consultation with the States 

is not required. 

Executive Order 13175 

This rule has been reviewed for 

compliance with Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments.’’ The 

policies contained in this rule do not 

have tribal implications that preempt 

tribal law. FSA continues to consult 

with Tribal officials to have a 

meaningful consultation and 

collaboration on the development and 

strengthening of CCC regulations. 

Unfunded Mandates 

Title II of the Unfunded Mandate 

Reform Act of 1995 (UMRA, Pub. L. 

104–4) requires Federal agencies to 

assess the effects of their regulatory 

actions on State, local, or tribal 

governments or the private sector. 

Agencies generally must prepare a 

written statement, including a cost 

benefit analysis, for proposed and final 

rules with Federal mandates that may 

result in expenditures of $100 million or 

more in any 1 year for State, local, or 

tribal governments, in the aggregate, or 

to the private sector. UMRA generally 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Rules and Regulations 76923 

requires agencies to consider 

alternatives and adopt the more cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

This rule contains no Federal mandates 

as defined by Title II of UMRA for State, 

local, or tribal governments or for the 

private sector. Therefore, this rule is not 

subject to the requirements of sections 

202 and 205 of UMRA. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule under the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, (Pub. L. 104–121, 

SBREFA). Therefore, CCC is not 

required to delay the effective date for 

60 days from the date of publication to 

allow for Congressional review and this 

rule is effective on the date of 

publication in the Federal Register. 

Federal Assistance Programs 

The title and number of the Federal 

assistance program as found in the 

Catalog of Federal Domestic Assistance, 

to which this rule applies, is: 

Tobacco Transition Payment 

Program—10.085. 

Paperwork Reduction Act 

These regulations are exempt from the 

requirements of the Paperwork 

Reduction Act (44 U.S.C. Chapter 35), as 

specified in section 642 of Pub. L. 

108–357 (7 U.S.C. 519a), which 

provides that these regulations, which 

are necessary to implement TTPP, be 

promulgated and administered without 

regard to the Paperwork Reduction Act. 

E-Government Act Compliance 

CCC is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

List of Subjects in 7 CFR Part 1463 

Agriculture, Agricultural 

commodities, Acreage allotments, 

Marketing quotas, Price support 

programs, Tobacco, Tobacco transition 

payments. 

■ For the reasons discussed in the 

preamble, this rule amends 7 CFR part 

1463 as follows: 

PART 1463—2005–2014 TOBACCO 

TRANSITION PAYMENT PROGRAM 

■ 1. The authority citation for part 1463 

is revised to read as follows: 

Authority: 7 U.S.C. 518–519a, 714b, and 

714c. 

§ 1463.5 [Amended] 

■ 2. Amend paragraph (a), first 

sentence, by adding the words ‘‘using for 

all years the tax rates that applied in 

fiscal year 2005’’ at the end. 

Signed in Washington, DC, on December 7, 

2010. 

Jonathan W. Coppess, 

Executive Vice President, Commodity Credit 

Corporation. 

[FR Doc. 2010–31061 Filed 12–9–10; 8:45 am] 

BILLING CODE 3410–05–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

RIN 3150–AI37 

[NRC–2009–0014] 

Domestic Licensing of Production and 

Utilization Facilities; Updates to 

Incorporation by Reference of 

Regulatory Guides; Correction 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Correcting amendment. 

SUMMARY: This document corrects a 

final rule that was published in the 

Federal Register on October 5, 2010 (75 

FR 61321). The final rule amends the 

U.S. Nuclear Regulatory Commission’s 

(NRC) regulations to incorporate by 

reference the latest revisions of two 

previously incorporated regulatory 

guides. This document is necessary to 

add a line of regulatory text that was 

inadvertently omitted from the final 

rule. 

DATES: The correction is effective on 

December 10, 2010, and is applicable 

beginning November 4, 2010, the date 

the original rule became effective. 

FOR FURTHER INFORMATION CONTACT: 

Cindy Bladey, Chief, Rules, 

Announcements, and Directives Branch, 

Office of Administration, Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone: 301–492– 

3667, e-mail: Cindy.Bladey@nrc.gov. 

SUPPLEMENTARY INFORMATION: This 

document is the second set of 

corrections to the final rule that was 

published on October 5, 2010. The 

previous correction was published on 

October 21, 2010 (75 FR 64949). This 

document adds a line of text to the 

regulations at 10 CFR 50.55a(g)(3)(ii) 

that was inadvertently omitted from the 

final rule. 

List of Subjects in 10 CFR Part 50 

Antitrust, Classified information, 

Criminal penalties, Fire protection, 

Intergovernmental relations, Nuclear 

power plants and reactors, Radiation 

protection, Reactor siting criteria, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; and 5 U.S.C. 552 and 553, 

the NRC is adopting the following 

amendments to 10 CFR part 50. 

PART 50—DOMESTIC LICENSING OF 

PRODUCTION AND UTILIZATION 

FACILITIES 

■ 1. The authority citation for part 50 

continues to read as follows: 

Authority: Secs. 102, 103, 104, 105, 161, 

182, 183, 186, 189, 68 Stat. 936, 937, 938, 

948, 953, 954, 955, 956, as amended, sec. 

234, 83 Stat. 444, as amended (42 U.S.C. 

2132, 2133, 2134, 2135, 2201, 2232, 2233, 

2236, 2239, 2282); secs. 201, as amended, 

202, 206, 88 Stat. 1242, as amended, 1244, 

1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. 109–58, 119 Stat. 

194 (2005). Section 50.7 also issued under 

Pub. L. 95–601, sec. 10, 92 Stat. 2951 as 

amended by Pub. L. 102–486, sec. 2902, 106 

Stat. 3123 (42 U.S.C. 5841). Section 50.10 

also issued under secs. 101, 185, 68 Stat. 955, 

as amended (42 U.S.C. 2131, 2235); sec. 102, 

Pub. L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). 

Sections 50.13, 50.54(dd), and 50.103 also 

issued under sec. 108, 68 Stat. 939, as 

amended (42 U.S.C. 2138). 

Sections 50.23, 50.35, 50.55, and 50.56 also 

issued under sec. 185, 68 Stat. 955 (42 U.S.C. 

2235). Sections 50.33a, 50.55a and Appendix 

Q also issued under sec. 102, Pub. L. 91–190, 

83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 

and 50.54 also issued under sec. 204, 88 Stat. 

1245 (42 U.S.C. 5844). Sections 50.58, 50.91, 

and 50.92 also issued under Pub. L. 97–415, 

96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 

also issued under sec. 122, 68 Stat. 939 (42 

U.S.C. 2152). Sections 50.80—50.81 also 

issued under sec. 184, 68 Stat. 954, as 

amended (42 U.S.C. 2234). Appendix F also 

issued under sec. 187, 68 Stat. 955 (42 U.S.C. 

2237). 

■ 2. In § 50.55a, revise paragraph 

(g)(3)(ii) to read as follows: 

§ 50.55a Codes and standards. 

* * * * * 

(g) * * * 

(3) * * * 

(ii) Components which are classified 

as ASME Code Class 2 and Class 3 and 

supports for components which are 

classified as ASME Code Class 1, Class 

2, and Class 3 must be designed and be 

provided with access to enable the 

performance of inservice examination of 

these components and must meet the 

preservice examination requirements set 

forth in the editions and addenda of 


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