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

60155

Vol. 62, No. 216

Friday, November 7, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 29

[Docket No. TB–97–05]

Tobacco Inspection: Subpart C—

Standards

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is revising the

regulations under the Official Standard

Grades for Burley Tobacco to remove

from the definition of ‘‘Rework’’ the

reference to a lot of tobacco exceeding

an average bale weight of 100 pounds.

This action is being taken because

average bale weight is not a significant

factor for determining the quality of

tobacco, and classifying tobacco as ‘‘No

Grade’’ solely because the average bale

weight exceeds 100 pounds precludes

producers from receiving an accurate

description of their product at the

marketplace.

EFFECTIVE DATE: November 10, 1997.

FOR FURTHER INFORMATION CONTACT: John

P. Duncan III, (202) 205–0567.

SUPPLEMENTARY INFORMATION: Notice

was given (62 FR 35452, Tuesday, July

1, 1997) that the Department proposed

to revise the Official Standard Grades

for Burley Tobacco, U.S. Type 31 and

Foreign Type 93, to delete the reference

to a lot of tobacco exceeding an average

bale weight of 100 pounds from the

definition of ‘‘Rework.’’ That provision

had been added to the regulations in

1995 in response to a request from the

tobacco industry. The basis of that

request was that those bales within a lot

exceeding 100 pounds had a higher

potential for deterioration affecting the

quality and value of the tobacco.

During the grading process, the USDA

inspector looks at the total weight of the

lot listed on the inspection certificate

and divides by the number of bales to

ascertain the average bale weight. When

a lot is identified as exceeding the

average bale weight, it is classified as

needing to be reworked and given the

grademark ‘‘NO-G’’ meaning No Grade.

The No Grade designation is also used

to classify lots that are nested, offtype,

semicured, damaged 20 percent or more,

abnormally dirty, extremely wet or

watered, contain foreign matter, or have

an odor foreign to the type. A lot of

tobacco that otherwise meets the

specifications of a standard grade, but

exceeds the 100 pound average bale

weight criterion, is classified in a

category of less desirable tobacco. This

one factor precludes the producer from

receiving an accurate description of

their product at the marketplace.

After reviewing the average bale

weight provision for two marketing

seasons, the agency believes that it

reduces the accuracy of applying the

grade standards.

Interested parties were given an

opportunity to comment on the

proposed rule. A total of 16 separate

comments were received. Those

comments in favor of the proposal

consisted of six separate comments and

seven other comments signed by more

than one individual (344 individuals

signed these comments). The favorable

comments stated that they were either

opposed to AMS enforcing the 100

pound average bale weight provision or

that they did not believe that the

grading service should be involved in

restrictions of weight of an individual

bale of burley tobacco.

Three responses were in opposition to

the proposal and stated they were in

favor of AMS continuing to regulate bale

weight, citing the desirability of uniform

packaging and expressing concerns that

bales of excessive weight increase the

risk of damage to the tobacco, injuries

to workers, and shipping problems.

With regard to uniform packaging, the

existing regulation provided for an

average bale weight and did not assure

uniformity between and among

individual bales. With regard to the

other concerns raised by the three

commenters, the provisions for rework

made final in this rule are the same as

those provisions that originally existed

for rework prior to the last two seasons.

Again, the 100 pound average bale

provision did not assure uniformity nor

did it necessarily eliminate any of the

concerns raised by the comments. After

consideration of all available

information, we are eliminating the 100

pound average bale weight provisions

and making this rule final as proposed.

After consideration of comments on

the proposal and other relevant

information, the Department hereby

adopts the regulations as proposed.

This final rule has been determined

not significant for the purpose of

Executive Order 12866, and therefore

has not been reviewed by the Office of

Management and Budget.

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This action is not

intended to have retroactive effect. This

final 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 this final rule.

Additionally, in conformance with

the provision 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 160 tobacco warehouses

and approximately 250,000 producers.

The Agricultural Marketing Service

has determined that this action will not

have a significant economic impact on

a substantial number of small entities.

This revision will amend the regulations

to delete from the definition of

‘‘Rework’’ the reference to a lot of

tobacco exceeding an average bale

weight of 100 pounds. This action is

being taken because average bale weight

is not a significant factor for

determining the quality of tobacco.

Classifying tobacco as ‘‘No Grade’’

solely because the average bale weight

exceeds 100 pounds precludes

producers from receiving an accurate

description of their product at the

marketplace. This final rule will not

substantially affect the normal

movement of the commodity in the
60156 Federal Register / Vol. 62, No. 216 / Friday, November 7, 1997 / Rules and Regulations

marketplace. Compliance with this rule

will not impose substantial direct

economic cost, recordkeeping, or

personnel workload changes on small

entities, and will not alter the market

share or competitive positions of small

entities relative to the large entities and

will no way affect normal competition

in the marketplace.

In addition, under 5 U.S.C. 553, good

cause has been found to make this rule

effective less than 30 days after

publication because it is necessary that

the regulation be effective at the

beginning of the marketing season

which begins in November. Therefore,

in order to treat all marketing areas on

an equal basis, this final rule is made

effective the day following the date of

publication in the Federal Register.

List of Subjects 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

1. The authority citation for 7 CFR

part 29, subpart C, continues to read as

follows:

Authority: 7 U.S.C. 511b, 511m, and 511r.

Subpart C—Standards

2. In § 29.3053, paragraph (b) is

revised to read as follows:

§ 29.3053 Rework.

* * * * *

(b) Tobacco not properly tied in

hands, not packed in bales

approximately 1 x 2 x 3 feet, not

oriented, not packed straight, bales not

opened for inspection when chosen by

a grader, or otherwise not properly

prepared for market.

Dated: November 4, 1997.

Thomas A. O’Brien,

Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 97–29498 Filed 11–6–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV97–920–3 FIR]

Kiwifruit Grown in California;

Increased Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, the

provisions of an interim final rule

which increased the assessment rate for

the Kiwifruit Administrative Committee

(Committee) under Marketing Order No.

920 for the 1997–98 and subsequent

fiscal periods. The Committee is

responsible for local administration of

the marketing order which regulates the

handling of kiwifruit grown in

California. Authorization to assess

kiwifruit handlers enables the

Committee to incur expenses that are

reasonable and necessary to administer

the program. The 1997–98 fiscal period

covers the period August 1 through July

31. The assessment rate will continue in

effect indefinitely unless modified,

suspended, or terminated.

EFFECTIVE DATE: December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Diane Purvis, Marketing Assistant, or

Rose Aguayo, Marketing Specialist,

California Marketing Field Office, Fruit

and Vegetable Programs, AMS, USDA,

2202 Monterey Street, Suite 102B,

Fresno, California 93721; telephone:

(209) 487–5901, Fax: (209) 487–5906; or

George Kelhart, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 720–

2491, Fax: (202) 720–5698. Small

businesses may request information on

compliance with this regulation by

contacting Jay Guerber, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 720–

2491, Fax: (202) 720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Order No.

920, as amended (7 CFR part 920),

regulating the handling of kiwifruit

grown in California, hereinafter referred

to as the ‘‘order.’’ The marketing order

is effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department is issuing this rule in

conformance with Executive Order

12866.

This final rule was reviewed under

Executive Order 12988, Civil Justice

Reform. Under the marketing order now

in effect, California kiwifruit handlers

are subject to assessments. Funds to

administer the order are derived from

such assessments. It is intended that the

assessment rate as issued herein will be

applicable to all assessable kiwifruit

beginning August 1, 1997, and

continuing until amended, suspended,

or terminated. This rule will not

preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. Such

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction to

review the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after the date of the

entry of the ruling.

This rule continues in effect the

assessment rate of $0.0225 per tray or

tray equivalents of assessable kiwifruit

for the Committee for the 1997–98 and

subsequent fiscal periods.

The kiwifruit marketing order

provides authority for the Committee,

with the approval of the Department, to

formulate an annual budget of expenses

and collect assessments from handlers

to administer the program. Section

920.41 authorizes the Committee to

borrow funds. The members of the

Committee are producers of California

kiwifruit and one non-industry member.

They are familiar with the Committee’s

needs and with the costs for goods and

services in their local area and are thus

in a position to formulate an appropriate

budget and assessment rate. The

assessment rate is formulated and

discussed in a public meeting. Thus, all

directly affected persons have an

opportunity to participate and provide

input.

For the 1996–97 and subsequent fiscal

periods, the Committee recommended,