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

19665

Vol. 60, No. 76

Thursday, April 20, 1995

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1464

RIN 0560–AD943

Tobacco; Importer Assessments

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Interim rule with request for

comments:

SUMMARY: This rule provides, with

respect to tobacco, authority to

implement changes for the budget

deficit marketing assessment (BDMA),

sometimes referred to as a

‘‘nonrefundable marketing assessment,’’

which is provided for in 7 CFR 1464.11

and 7 CFR 1464.102. The rule is needed

because of the enactment of Section 422

of the Uruguay Round Agreements Act

(P.L. No. 103–465). That section

provides for modifications to the BDMA

in the event that the President should

issue a proclamation establishing a

tariff-rate quota (TRQ) pursuant to

Article 28 of the General Agreement on

Tariffs and Trade (GATT). As yet, no

such quota has been issued. However,

this rule will allow for rapid

implementation of the Section 422

modifications if a TRQ is issued. The

modifications provided for in Section

422 are, with respect to imported

tobacco, a restriction of the BDMA to

certain tobaccos and a change in the

BDMA rate. For covered domestic

tobaccos, Section 422 would extend the

term of coverage through the 1998

crops; otherwise, Section 422 would not

change the application of the BDMA to

domestic tobacco.

DATES: Effective Date: April 20, 1995.

Comment Date: Comments must be

received on or before May 22, 1995, in

order to be assured of consideration.

ADDRESSES: Interested persons are

invited to submit written comments to

the Director, Tobacco and Peanuts

Division, Consolidated Farm Service

Agency (CFSA), United States

Department of Agriculture (USDA), P.O.

Box 2415, Washington, D.C. 20013–

2415, telephone 202–720–7413. All

written comments will be available for

public inspection in room 5750, South

Building, U.S. Department of

Agriculture, 14th St. and Independence

Avenue SW., Washington, DC, between

8 a.m. and 5 p.m., Monday through

Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: Gary

Wheeler, Tobacco Marketing Specialist,

Tobacco and Peanuts Division, CFSA, at

the address listed above, telephone 202–

720–7562.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be

not-significant for purposes of Executive

Order 12866 and therefore has not been

reviewed by OMB.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable to this rule since the

Commodity Credit Corporation (CCC) is

not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rulemaking with

respect to the subject matter of this rule.

Federal Assistance Program

The title and number of the Federal

Assistance Program, as found in the

Catalog of Federal Domestic Assistance,

to which this rule applies are:

Commodity Loans and Purchases—

10.051.

Environmental Evaluation

It has been determined by an

environmental evaluation that this

action will have no significant impact

on quality of the human environment.

Therefore, neither an environmental

assessment nor an environmental

impact statement is needed.

Executive Order 12372

This program/activity is not subject to

the provisions of Executive Order 12372

which requires intergovernmental

consultation with State and local

officials. See the notice related to 7 CFR

part 3015, subpart V published at 48 FR

2915 (June 24, 1983).

Executive Order 12778

This interim rule has been reviewed

in accordance with Executive Order

12778. The provisions of this interim

rule are not retroactive and preempt

state laws to the extent that such laws

are inconsistent with the provisions of

this interim rule. Before any legal action

is brought regarding determinations

made under provisions of 7 CFR part

1464, the administrative appeal

provisions set forth at 7 CFR part 780

must be exhausted.

Paperwork Reduction Act

The information collection

requirements contained in these

regulations (7 CFR part 1464) have been

previously approved by the Office of

Management and Budget (OMB) and

assigned OMB No. 0560–0148.

Background

A. Pre-1993 Coverage of Domestic

Tobacco

The BDMAs for tobacco are also

known as ‘‘nonrefundable marketing

assessment’’ and are provided for in 7

CFR part 1464 and in particular in 7

CFR 1464.11 and 7 CFR 1464.102.

The BDMAs, for tobacco, are provided

for in current law in Sections 106(g) and

106(h) of the Agricultural Act of 1949,

as amended (1949 Act). Before 1993,

only domestic tobacco was covered and

only those domestic tobaccos for which

price support was in effect by reason of

the approval by producers of production

controls.

The per pound BDMA rate that

applies to domestic tobacco is the

amount which equals 1% of the per

pound national price support level for

each kind of tobacco. For domestic

tobacco, half of the BDMA is paid by the

producer; the other half is paid by the

first purchaser of the tobacco. The first

purchaser either purchases the tobacco

from the producer or obtains the tobacco

by a purchase from the price support

loan inventory.

Tobacco crops are divided into crop

years based on the year of production.

There is likewise assigned a marketing

year for each crop. The marketing year

for all but flue-cured tobacco runs from

October 1 of the calendar year in which

the crop is produced through September

30 of the following year. For flue-cured

tobacco, the crop year runs for the 12-

month period that begins on July 1 of

the year of production.
19666 Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations

B. 1993 Extension of BDMAs to

Imported Tobacco

In 1993, Congress enacted the

Omnibus Budget Reconciliation Act of

1993, Pub. L. 103–66 (1993 Act). The

1993 Act extended the BDMA to all

imported tobacco. Implementing rules

were published in 7 CFR part 1464.

Pursuant to the statute, the rules set the

per pound BDMA rate on imported

tobacco at a uniform amount equal to

the average per pound total (producer

and purchaser) BDMA for domestic

burley and flue-cured tobacco

applicable at the time of the entry of the

imported tobacco into the commerce of

the United States. The 1993 Act also

extended ‘‘no net cost assessments’’

(NNCAs) to imported tobacco. However,

the imported tobacco NNCAs apply only

to imported flue-cured and imported

burley tobacco.

C. Remittances of BDMAs

By law, BDMA payments are remitted

to the CCC of USDA.

D. Coverage of Crop Years

But for new statutory law, described

below, the term of the domestic BDMA

ends with the 1995 crops. That for the

imported tobacco ends with the 1998

crops.

E. Provisions of the Uruguay Round

Agreements Act (URAA)

The 1993 Act measures described

above and the other 1993 measures led

to a challenge under GATT by countries

that export tobacco to the United States.

This led to on-going negotiations to

establish a TRQ under Article 28 of

GATT.

Countries have operated for many

years under longstanding GATT

provisions sometimes referred to as

‘‘GATT 1947.’’ However, recent

negotiations among many nations on

new, broad-based ‘‘Uruguay Round

Agreements’’ were completed. The

GATT, as so modified, is sometimes

referred to as ‘‘GATT 1994.’’ This

development led in turn to enactment

by Congress of the ‘‘Uruguay Round

Agreements Act’’ (URAA).

URAA Sections 421–423 contain

tobacco provisions. Section 422

contains provisions dealing with the

BDMA. However, those provisions are

not effective unless and until a tobacco

TRQ should be proclaimed by the

President.

Specifically, Section 422 would revise

Section 106 of the 1949 Act to provide

that effective for each of the 1994

through 1998 crops of tobacco for which

price support is made available under

the 1949 Act, each producer and

purchaser of such tobacco, and each

importer of the same kind of tobacco

shall remit to the CCC a non-refundable

marketing assessment (BDMA). Section

106(g), as it would be revised by Section

422, provides further that the nonrefundable marketing assessment (that

is, the BDMA) would be an amount

equal to:

(1) in the case of a producer or

purchaser of domestic tobacco, .5% of

the national price support level for each

such crop; and

(2) in the case of an importer of

tobacco, 1 percent of the national price

support level for the same kind of

tobacco.

Accordingly, Section 422, if and when

it becomes effective, would limit the

imported BDMA to imports with the

same or similar characteristics as a

price-supported (and BDMA-subject)

domestic kind. Also, the rate for

imported tobacco would change to that

equal to the full amount of the BDMA

for the corresponding domestic kind

rather than be equal to a burley and

flue-cured average.

Further, Section 422(c) allows the

President to waive the application to

imported tobacco of the BDMA or the

NNCA if the President determines that

the waiver is necessary or appropriate

pursuant to an international agreement

entered into by the United States.

As indicated, however, the provisions

of Section 422 are not yet effective. That

lack of current effectiveness is set out in

Section 422(e). That section provides

that Section 422 and the amendments

made by it will be effective only

beginning on the effective date of the

Presidential proclamation establishing a

TRQ pursuant to Article 28 of the GATT

1947 or the GATT 1994 with respect to

tobacco. There is no such TRQ at this

time.

F. Need for a Currently Effective Rule

It has been determined that an interim

rule should be issued at this time so that

there may be an immediate effectiveness

under 7 CFR part 1464 of the BDMA

modifications upon the proclamation by

the President of a triggering TRQ.

G. Current Coverage of the Domestic

BDMA

As indicated, Section 422 would tie

the imported tobacco BDMA to

domestic kinds that pay a BDMA. Those

domestic kinds are those that are subject

to price support. They are listed below.

In the parentheses following each kind

are three figures separated by slashes.

The first figure is the current per pound

national price support level. The second

is the amount which would constitute

1% of the support level and thus the full

per pound imported BDMA rate for the

same kind or that having similar

characteristics of a domestic quota kind.

The third figure is the second figure

expressed as an amount per kilogram.

The list of price supported domestic

tobaccos, with those three figures for

each, is as follows:

(1) flue-cured tobacco ($1.583/

$0.015830/$0.034899);

(2) burley ($1.714/$0.017140/

$0.037787);

(3) Virginia fire-cured ($1.407/

$0.014070/$0.031019);

(4) Kentucky-Tennessee fire-cured

($1.483/$0.014830/$0.032694);

(5) dark air-cured ($1.273/$0.012730/

$0.028065);

(6) Virginia sun-cured ($1.245/

$0.012450/$0.027447);

(7) cigar filler and binder ($1.084/

$0.010840/$0.023899); and

(8) Puerto Rico cigar filler ($0.844/

$0.008440/$0.018607).

H. Description of Provisions and Effect

of The Interim Rule

Under the interim rule:

(1) Effectiveness of the new regime.

The new BDMA provisions would be

effective only upon: (i) the proclamation

by the President of a triggering TRQ and

(ii) a determination and announcement

by the Executive Vice President of CCC

(Executive Vice President) that the TRQ

had been proclaimed and that the new

BDMA provisions are in effect.

(2) Timing of calculation of amount

due. The amount due under the new

regime would be determined based on

the date of entry of the tobacco into the

commerce of the United States as

determined in accordance with existing

rules.

(3) Effect on prior importations. Any

tobacco entered prior to the effective

date of the new regime would be subject

to the old regime. The inauguration of

the new regime will not effect liabilities

under the old regime.

(4) Waivers. The rule allows

adjustments to be made as might be

required due to an exercise of the

President’s Section 422(c) waiver

authority.

(5) Mixed lots. Mixed lots (containing

differing kinds of tobacco) would be

handled as they are for the NNCA. The

importer would be responsible for

establishing and certifying to the

composition of the lot. To the extent

that the lot’s composition could not be

determined, the lot would be considered

to be assessable in its entirety at the

highest applicable rate.

(6) Exemption of certain tobaccos.

Tobaccos which have distinct

characteristics such as oriental tobacco

and are commonly treated in the trade

as a different ‘‘kind’’ of tobacco would
Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations 19667

be, in the new regime, free of the

BDMA.

(7) Burden of proof. Unlike the old

regime, the new regime does not cover

all imported tobacco. The importer

would have the burden of establishing

that the tobacco was not subject to the

BDMA or is subject to a lower rate.

Importers of all kinds of tobacco,

including exempt tobaccos, would be

required to maintain all records relevant

to the application of the assessments

and its exemptions. Such records would

be subject to inspection as under the old

regime. As under the old regime,

failures to keep proper records could be

considered as evidence of a failure to

make proper payments.

(8) Authority of the Director of the

Tobacco and Peanuts Division. The

Director of the Tobacco and Peanuts

Division (Director), CFSA, would have

the authority to resolve disputes,

request information, and establish

additional accounting procedures if

needed.

(9) Rate on imported tobacco. In

accordance with the Section 422, the

BDMA rate on imported tobacco would

be the lowest rate for a domestic tobacco

which is the same kind.

(10) Kinds of tobacco. Tobacco could

be considered the same kind if,

discounting for the place of production,

it is classified as the same kind for

customs purposes, has similar

characteristics, or is treated as the same

kind of tobacco in the industry.

(11) Extension of the domestic BDMA.

The domestic BDMA would be extended

through the 1998 crops if a TRQ is

issued.

(12) Changes in coverage of the

imported BDMA. If the list of domestic

tobaccos subject to the BDMA changes,

the coverage of the imported BDMA

would also change accordingly. In any

case, the BDMA rate for imported

tobacco will change based on changes in

the price support level for relevant

domestic tobaccos. The applicable rate

will, as indicated above, be based on the

time of the entry of the tobacco into the

commerce of the United States.

(13) Additional rule changes. It is

anticipated that if and when a TRQ is

issued, the rules would be revised to

reflect the new regime only. However,

as indicated, this will not affect

liabilities under the old regime.

I. Current Effectiveness and Comments

This rule is being issued as an interim

rule without prior public comment as

the change in the BDMA is mandated by

law and a delay in implementation

would be contrary to the public interest,

including the public interest in the

administration of foreign trade policy.

Comments both favorable and

unfavorable to the rule are solicited.

Further consideration of the rule, upon

the receipt of the comments, could lead

to modifications in the rule.

List of Subjects in 7 CFR Part 1464

Assessments, Loan program,

Agriculture, Price support program,

Tobacco, Warehouses.

For the reasons set forth in the

preamble, 7 CFR part 1464 is amended

as follows:

PART 1464—TOBACCO

1. The authority citation for part 1464

continues to read as follows:

Authority: 7 U.S.C. 1421, 1423, 1441, 1445,

1445–1, and 1445–2; 15 U.S.C. 714b, 714c.

2. Section 1464.11 is amended by

adding a new paragraph (f) to read as

follows:

§ 1464.11 Nonrefundable marketing

assessment.

* * * * *

(f) The term for the application of the

assessment provided for in this section

shall be extended through the 1998

crops if the President issues a

Presidential proclamation establishing a

tariff-rate quota pursuant to Article

XXVIII of the GATT 1947 or GATT 1994

with respect to tobacco. Accordingly, in

the event that such a proclamation is

issued all obligations which otherwise

would terminate with the 1995 crop

under this section shall apply equally

for subsequent crops through the 1998

crops.

3. Section 1464.102 is amended by

adding new paragraphs (c) and (d) to

read as follows:

§ 1464.102 Budget deficit marketing

assessment.

* * * * *

(c) Modification of the coverage and

rate for imported tobacco. (1)

Notwithstanding the provisions of

paragraphs (a) and (b) of this section,

the coverage, rates and obligations

applicable to imported tobacco under

this section shall be as provided in

paragraph (d) of this section if:

(i) the President establishes a tariffrate quota for tobacco; and

(ii) it is determined and announced by

the Executive Vice President that a

modification of the assessments is being

made accordingly pursuant to Section

422 of Pub. L. 103–465.

(2) The effective date of the

modification provided for in paragraph

(c)(1) of this section shall be the date

announced by the Executive Vice

President consistent with the provisions

of Pub. L. 103–465.

(3) (i) For entries of imported tobacco

into the United States prior to the

effective date for assessment

modifications announced by the

Executive Vice President under this

paragraph, the rates and coverage of the

assessment shall be as provided for in

paragraphs (a) and (b) of this section.

(ii) For entries of imported tobacco

into the United States after the effective

date for assessment modifications

announced by the Executive Vice

President under this paragraph, the rates

and coverage of the assessment shall be

as provided for in paragraph (d) of this

section.

(d) Rates and coverage of the

modified assessment. If a modification

of the assessments otherwise provided

for in this section is announced by the

Executive Vice President as provided for

in paragraph (c) of this section then:

(1) Imports of tobacco under this

section shall apply only to the same

kind or tobacco having similar

characteristics to a price-supported

domestic kind, or considered in the

trade to be the same or similar ‘‘kind’’,

as a domestic tobacco which is, at the

time the tobacco is entered into the

commerce of the United States,

currently subject to an assessment under

§ 1464.11.

(2) If the tobacco is subject to an

assessment under paragraph (d)(1) of

this section, then the assessment shall

be paid by the importer and remitted to

CCC. The amount due for each pound of

subject tobacco, shall be the amount

equal to 1% of the national price

support level that applies for the current

marketing year for the corresponding

domestic kind of tobacco.

(3) It shall be the responsibility of all

importers to establish that imported

tobacco is not covered by the BDMA or

not subject to a higher BDMA rate than

that which is assessed or paid.

(4) In the case of the entry of mixed

lots (containing tobacco of different

kinds) the importer shall be required to

certify to the composition of the lot. In

the absence of such certification or in

the absence of sufficient evidence to

indicate the relevant kind of tobacco for

purposes of administration of this

section, then the importer shall be liable

for the assessment as the highest

possible relevant rate for all such

tobacco.

(5) Importers of all tobacco, including

those which are not subject to the

modified BDMA, shall maintain

sufficient records to demonstrate

compliance with the obligations of this

section.

(6) Disputes involving the application

of the assessment shall be resolved by

the Director.
19668 Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Rules and Regulations

Signed at Washington, D.C. on April 10,

1995.

Bruce R. Weber,

Acting Executive Vice President, Commodity

Credit Corporation.

[FR Doc. 95–9454 Filed 4–19–95; 8:45 am]

BILLING CODE 3410–05–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 914

[IN–117, Amendment Number 94–2]

Indiana Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving a proposed

amendment to the Indiana permanent

regulatory program (hereinafter referred

to as the Indiana program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of miscellaneous

revisions to Indiana’s Surface Coal

Mining and Reclamation Rules. The

amendment is intended to revise the

Indiana program to eliminate

typographical, clerical, and spelling

errors and to amend those instances

where the word ‘‘commission’’ should

be changed to ‘‘director’’ in accordance

with Indiana Senate Enrolled Act (SEA)

362.

EFFECTIVE DATE: April 20, 1995.

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director,

Indianapolis Field Office, Office of

Surface Mining Reclamation and

Enforcement, Minton-Capehart Federal

Building, 575 North Pennsylvania

Street, Room 301, Indianapolis, IN

46204, Telephone (317) 226–6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program.

II. Submission of the Amendment.

III. Director’s Findings.

IV. Summary and Disposition of Comments.

V. Director’s Decision.

VI. Procedural Determinations.

I. Background on the Indiana Program

On July 29, 1982, the Indiana program

was made effective by the conditional

approval of the Secretary of the Interior.

Information pertinent to the general

background on the Indiana program,

including the Secretary’s findings, the

disposition of comments, and a detailed

explanation of the conditions of

approval of the Indiana program can be

found in the July 26, 1982 Federal

Register (47 FR 32107). Subsequent

actions concerning the conditions of

approval and program amendments are

identified at 30 CFR 914.10, 914.15, and

914.16.

II. Submission of the Amendment

By letter dated August 25, 1994

(Administrative Record No. IND–1394),

Indiana submitted program amendment

#94–2 concerning miscellaneous

revisions to the Indiana rules to

eliminate typographical, clerical, and

spelling errors and to amend those

instances where the word

‘‘commission’’ should be changed to

‘‘director’’ in accordance with Indiana

SEA 362. OSM approved SEA 362 as a

program amendment on August 2, 1991

(56 FR 37016). By letter dated August

30, 1994 (Administrative Record No.

IND–1395), Indiana submitted a

supplement to the August 25, 1994,

submittal which consists of a hard copy

of the rules being amended in those

instances where ‘‘commission’’ should

be changed to ‘‘director’’ as a response

to SEA 362 along with miscellaneous

revisions.

OSM announced receipt of the

proposed amendment in the September

16, 1994, Federal Register (59 FR

47571), and, in the same notice, opened

the public comment period and

provided opportunity for a public

hearing on the adequacy of the proposed

amendment. The comment period

closed on October 17, 1994. By letter

dated March 20, 1995 (Administrative

Record No. IND–1438), Indiana

submitted additional typographical and

clerical corrections to the proposed

amendment in response to comments

provided by OSM on February 14, 1995

(Administrative Record No. IND–1437).

In addition, Indiana withdrew its

proposed change to 310 IAC 12–7–1(c)

and reinstated the word ‘‘commissions,’’

to this subsection. Therefore, 310 IAC

12–7–1(c) is not part of this amendment.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings concerning the proposed

amendment to the Indiana program.

In amendment #94–2, Indiana

corrected numerous typographical,

clerical, or spelling errors and made

numerous changes from the word

‘‘commission’’ to ‘‘director.’’ The

Director finds that the numerous

typographical, clerical, and spelling

changes are nonsubstantive changes or

changes which improve the clarity or

accuracy of the Indiana rules.

The Director finds that the changes

from ‘‘commission’’ to ‘‘director’’ more

accurately reflect the responsibilities

within the Indiana program as provided

by SEA 362 which was approved by

OSM on August 2, 1991 (56 FR 37016),

and that the changes do not render the

Indian program less effective than

Federal regulations.

IV. Summary and Disposition of

Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA

and 30 CFR 732.17(h)(11)(i), comments

were solicited from various interested

Federal agencies. No comments were

received.

Public Comments

A public comment period and

opportunity to request a public hearing

was announced in the September 16,

1995, Federal Register (59 FR 47571).

The comment period closed on October

17, 1995. No one commented and no

one requested an opportunity to testify

at the scheduled public hearing so no

hearing was held.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the

Director is required to obtain the written

concurrence of the Administrator of the

EPA with respect to any provisions of a

State program amendment that relate to

air or water quality standards

promulgated under the authority of the

Clean Water Act (33 U.S.C. 1251 et seq.)

or the Clean Air Act (42 U.S.C. 7401 et

seq.). The Director has determined that

this amendment contains no provisions

in these categories and that EPA’s

concurrence is not required.

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA (Administrative

Record No. IND–1403). EPA responded

on September 27, 1994 (Administrative

Record No. IND–1402) and stated that

EPA had no comments.

V. Director’s Decision

Based on the findings above, the

Director is approving Indiana’s program

amendment #94–2, concerning

miscellaneous revisions to the Indiana

rules as submitted by Indiana on August

25, 1994, supplemented on August 30,

1994, and amended on March 20, 1995.

The Federal regulations at 30 CFR

Part 914 codifying decisions concerning

the Indiana program are being amended

to implement this decision. This final

rule is being made effective immediately

to expedite the State program

amendment process and to encourage

States to bring their programs into

conformity with the Federal standards