TOBACCO INSPECTION

• Citation: 7 CFR Part 29
• Sections: 769

§ 29.1 Definitions.

For purposes of this subpart A, the following terms shall have the following meanings:

(a) Additional sale means an additional auction sale proposed to be conducted on a designated market.

(b) Adequate set of buyers means 5 or more buyers representing 5 or more companies or buying organizations which either will use the tobacco in the manufacture of tobacco products in this country or in foreign countries, or will pack and sell the tobacco later for use by manufacturers in this country or foreign countries, and who could reasonably be expected to purchase at least two-thirds of the total U.S. production of the kind of tobacco for which the additional services are requested.

(c) Auction market means a marketing center containing one or more warehouses where tobacco is delivered by producers thereof, or their agents, for sale by the auction process. There may be one or more auction sales on an auction market.

(d) Bona fide auction sale and auction sale mean the buying and selling of tobacco offered by producers by the auction process which customarily and usually consists of an adequate set of buyers; an auctioneer who takes each buyer's bid; a sales starter who makes the opening bid on each lot; and a ticket marker who records the applicable sales data on each lot.

(e) Designated market means an auction market designated by the Secretary under section 5 of the Tobacco Inspection Act including the town or city which is the population center of the market whose name the market bears and all of the geographical area within 5 road miles of the boundaries of said city or town. And further provided, That this geographical limitation may be waived by the Secretary after a hearing held pursuant to §§ 29.2 and 29.3.

(f) Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.

(g) Hearing Officer means any administrative law judge appointed pursuant to 5 U.S.C. 3105, and assigned to the proceeding involved, or such other employee of the Department of Agriculture as the Secretary may designate to act as hearing officer at such hearing.

(h) New market means an auction market, other than a designated market, at which inspection service under the tobacco Inspection Act was not provided on a regular basis during the preceding marketing season.

(i) Hearing Clerk means the Office of the Hearing Clerk, U.S. Department of Agriculture, Washington, DC 20250.

(j) Kind of tobacco means any one of the following: Flue-cured, Burley, Fire-cured, Dark air-cured, Maryland or Virginia sun-cured.

§ 29.2 Policy statement.

Inspection services currently provided in auction marketing areas are adequate and the lack of these services is not a limiting factor to accelerated marketings. Consequently, the extension of inspection services, without limitation even though the cost of such service is paid by the seller, would not contribute to the effectuation of the purposes of either of these services. The additional cost incident to the unlimited extension of these services would be unjustifiable and excessive in relation to the total quantity of tobacco available for market. Accordingly, inspection services shall be made available on new markets, and additional sales for other than flue-cured tobacco only as hereinafter provided.

(a) Reasonable inspection services. The extension of tobacco inspection services to new markets and additional sales will be conditioned upon the reasonableness of such services existing in the marketing area of the proposed new market or additional sale. Transactions in tobacco as conducted at auction markets customarily involve the sale of tobacco at a bona fide auction sale. Determination with respect to reasonableness, and consequently with respect to granting or denying additional services, will be based on evidence:

(1) That the proposed new market or additional sale will function as a bona fide auction sale; and

(2) That additional services are justifiable in relation to other market data, including the volume of tobacco produced in the area surrounding the proposed new market or additional sale; the roads and road distances involved in moving tobacco to the proposed new market or additional sale in relation to other tobacco marketing centers; the relative availability or congestion of all facilities for redrying and packing tobacco handled or to be handled in the proposed new market or additional sale; the location of other auction markets on which tobacco produced in the marketing area of the proposed new market or additional sale may be marketed; the number of tobacco growers to be affected by the proposed new market or additional sale; the volume of tobacco likely to be sold in the proposed new market or additional sale; the relationship of sales in the proposed new market or additional sale to sales in other auction markets in the producing area for that kind of tobacco; other economic factors affecting the marketing of tobacco, by growers, in the marketing area of the proposed new market or additional sale and in the producing area for that kind of tobacco, including limitations on sales imposed by any marketing agreement and/or order, or by any other means; and also, as to flue-cured tobacco, data with regard to producer designations which shall include, but not be limited to, the markets and warehouses currently available for the producers, who would be eligible to designate the new market or, warehouse, who desire to designate the new market.

(b) Order of priority. If the Secretary finds that there are insufficient qualified tobacco inspectors available to service adequately all applicants otherwise found to be qualified for additional inspection service pursuant to this subpart for a kind of tobacco, those applicants found to be eligible for additional services on auction markets designated for mandatory inspection shall be given priority over applicants for additional inspection service on other auction markets. If it becomes necessary to determine which of several qualified applicants having an equal order of priority under the preceding sentence shall receive additional inspection services, those auction sales or auction markets where the greatest number of growers needing such service may be served with the qualified inspectors shall have priority. If an application for an additional sale on a designated market is denied for lack of qualified inspectors, the Secretary, on application from such market, may temporarily suspend the requirement of inspection and certification on such market pursuant to section 5 of the Tobacco Inspection Act.

§ 29.3 Procedures for filing, hearing, and determination of applications.

(a) Time and place of filing. Applications for the extension of tobacco inspection to new markets and to additional sales on designated markets shall be filed with the Hearing Clerk not later than September 15 in the case of flue-cured tobacco, December 1 in the case of Maryland tobacco, and July 15 in the case of burley and all other kinds of tobacco. Applications should be addressed to the Office of the Hearing Clerk, United States Department of Agriculture, 1400 Independence Ave. SW, Stop 9203, Room 1031, South Building, Washington, DC 20250-9203. Applications which are not received by the Hearing Clerk on or before the foregoing cutoff date for the kind of tobacco shall be rejected as untimely filed. After denial of an application for additional inspection services for a marketing season, no application from the same auction market or proposed new market shall be considered for the next consecutive marketing season, unless the application contains a statement by the applicant setting forth new facts that constitute evidence of such a substantial change in conditions since the previous hearing as the review committee as specified in paragraph (h) of this section deems would warrant such further hearing.

(b) Form and content of application. The application shall be in writing, shall set forth the grounds for the application and shall be signed by the applicant or applicants. If an applicant is a corporation, the application shall be executed by a responsible officer of such corporation. The application shall include a statement of the name, address and form of business organization of each party to the application and the location of the proposed new market or additional sale.

(c) Hearings on applications. Following the closing date for filing applications for each kind of tobacco, a hearing or hearings shall be held on the applications, if any, filed for additional inspection services for the kind of tobacco in question. Such hearing or hearings shall be scheduled to begin within 60 days following the closing date for such applications. Notice of hearing shall be issued by the Secretary, filed with the Hearing Clerk, and published in the Federal Register, and a copy shall be mailed by the Hearing Clerk to each applicant. Such publication and mailing shall be not less than 5 days prior to the opening of the hearing.

(d) Hearing officer. A hearing officer shall preside over each such hearing. The hearing officer shall determine the order of procedure at the hearing, shall have power to administer oaths and affirmations, to rule on and admit evidence, and, following the opening of the hearing, to recess the hearing to such other times and places as he deems desirable or necessary.

(e) Scope of hearing and burden of proof. Each applicant shall have the burden of presenting evidence relative to the factors specified in § 29.2(a).

(f) Record and evidence. The proceedings at each such hearing shall be transcribed verbatim. All oral testimony shall be under oath or affirmation. All documentary exhibits shall be submitted in triplicate by the person offering the same. The Hearing Officer shall, insofar as possible, exclude testimony and exhibits which are irrelevant, immaterial, or not of the sort upon which responsible persons are accustomed to rely. Cross-examination shall be allowed only to the extent that the Hearing Officer in his discretion deems it desirable or necessary to develop the material facts.

(g) Briefs. If requested at the hearing, the presiding officer shall fix a time, not to exceed 20 days from the close of the hearing, within which interested persons may mail briefs to the Hearing Clerk.

(h) Certification and referral. As soon as practicable following the close of the hearing, the Hearing Officer shall certify the transcript of the proceedings at the hearing together with all exhibits and shall transmit the same to the Hearing Clerk for referral to a review committee comprised of the Administrator, Agricultural Marketing Service, the Administrator, Agricultural Stabilization and Conservation Service, and a representative of the Office of the Secretary to be designated by the Secretary.

(i) Recommended action. The review committee shall review and consider the applications, hearing record, including exhibits, and all other available information and data relating to applications for each kind of tobacco and shall submit a recommendation thereon to the Secretary.

(j) Final decision. The Secretary shall issue the decision on each application and such decision shall be final: Provided, That any determination that additional services will be provided may be reconsidered and may be vacated if it is subsequently found that any material fact upon which such determination was based was materially erroneous or false, or that the new market or additional sale in question is not functioning as a bona fide auction sale. Such decision shall be filed with the Hearing Clerk who shall mail a true copy thereof, by certified mail, to the applicant.

§ 29.12 Terms defined.

As used in this subpart and in all instructions, forms, and documents in connection therewith, the words and phrases hereinafter defined shall have the indicated meanings so assigned unless the context or subject matter otherwise requires.

§ 29.13 The act.

The Tobacco Inspection Act, approved August 23, 1935. (7 U.S.C. 511 et seq. )

§ 29.14 Secretary.

Secretary means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.

§ 29.15 Department.

The U.S. Department of Agriculture.

§ 29.16 Division.

Tobacco Division, Agricultural Marketing Service, U.S. Department of Agriculture.

§ 29.17 Director.

Director or Acting Director, Tobacco Division, Agricultural Marketing Service, U.S. Department of Agriculture.

§ 29.18 Person.

Individual, association, partnership, or corporation.

§ 29.19 Inspector.

Person employed, licensed, or authorized by the Secretary to determine and certify the type, grade, condition, or other characteristics of tobacco.

§ 29.20 Sampler.

Person employed, licensed, or authorized by the Secretary to select, tag, and seal official samples of tobacco.

§ 29.21 Weigher.

Person employed, licensed, or authorized by the Secretary to weigh and certify the weight of tobacco.

§ 29.22 Appeal inspector.

An inspector or other person designated or authorized by the Division to hear appeals under the Act and the regulations in this subpart.

§ 29.23 Tobacco.

Tobacco in its unmanufactured forms as it appears between the time it is cured and stripped from the stalk, or primed and cured and the time it enters a manufacturing process. Conditioning, sweating, and stemming are not regarded as manufacturing processes.

§ 29.24 Official standards.

Standards for tobacco promulgated by the Secretary under the Act.

§ 29.25 Tentative standards.

Standards for tobacco prepared by the Division for trial purposes and limited use pending promulgation by the Secretary of Official Standards.

§ 29.26 Office of inspection.

A field office of the tobacco inspection service of the Division.

§ 29.27 Certificate.

A certificate issued under the Act and the regulations in this subpart.

§ 29.28 Interested party.

The owner or other financially interested person; including the warehouseman, commission merchant, association, and other person who has the tobacco in his custody for sale; the authorized agent of the owner; and persons to whom or by whom the tobacco has been sold on the basis of a certificate issued, or sample prepared, under the Act, but not including a person who is negotiating for its purchase.

§ 29.29 Regulations.

Rules and regulations of the Secretary under the Act.

§ 29.30 Package.

A hogshead, tierce, case, bale, or other securely enclosed parcel or bundle.

§ 29.31 Lot.

A pile, basket, bulk, package, or other definite unit.

§ 29.32 Identification number.

A number or a combination of letters and numbers in a design or mark approved by the Director, stamped, printed, or stenciled on a lot of tobacco or attached thereto by an inspector, sampler, or weigher for the purpose of identifying the lot covered by a certificate issued under the Act.

§ 29.33 Official sample.

A sample selected, tagged, and signed by an inspector or sampler under the Act.

§ 29.34 Sample seal.

A seal approved by the Director for sealing official samples.

§ 29.35 Lot seal.

A seal approved by the Director for sealing lots of tobacco certificated under the Act.

§ 29.36 Auction market.

A place to which tobacco is delivered by the producers thereof, or their agents, for sale at auction through a warehouseman or commission merchant.

§ 29.37 Designated market.

An auction market designated by the Secretary, under section 5 of the Act.

§ 29.38 Public notice.

A proclamation by the Secretary under the Act (a) stating that an auction market is designated under the Act; (b) giving notice of such fact; (c) specifying a date when the requirement of inspection and certification under the act shall become effective; and (d) released to the press, mailed to the tobacco board of trade or warehouse association of such market, and mailed to the postmaster at such market for posting.

§ 29.39 Permissive inspection.

Inspection authorized under section 6 of the Act.

§ 29.40 Mandatory inspection.

Inspection authorized or required under section 5 of the Act or section 759 of the Appropriations Act.

§ 29.41 The Appropriations Act.

The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act for 2002 (Pub. L. 107-76).

§ 29.42 Receiving station.

Points at which producer tobacco is offered for marketing (other than sale at auction on a designated market), including tobacco auction warehouses, packing houses, prizeries, or places where tobacco is handled or stored.

§ 29.51 Administration.

The Director is charged with the supervision of the Division and the performance of all duties assigned thereto in the administration of the Act. Information concerning such administration may be obtained by addressing: The Director, Tobacco Division, Agricultural Marketing Service, U.S. Department of Agriculture, Washington, DC 20250.

§ 29.56 Permissive inspection.

Permissive inspection consists of inspection, including sampling and weighing, and certificating tobacco upon the request of an interested party. Upon such request, the Director may authorize and require an inspector, as a part of his duties, to supervise the preparation of tobacco to be inspected under the Act, including the sorting, handling, conditioning, or packing of such tobacco. Special tests and services may be performed for interested persons to the extent that available facilities will permit, subject to the payment of fees as provided in § 29.123.

§ 29.57 Where inspection is offered.

Tobacco may be inspected, sampled, or weighed for the purposes of the Act, upon request of an interested party, at points indicated in paragraphs (a), (b), and (c) of this section whenever official inspectors, samplers, or weighers are available and the tobacco is offered under conditions that permit of its proper examination.

(a) Points at which tobacco enters, or is offered for, interstate or foreign shipment, including packing houses, prizeries, warehouses, and other places where tobacco is handled, packed, or stored.

(b) The stations or the headquarters of inspectors, samplers, or weighers. An official station may be any town, city, or place having a market, receiving station, or other facilities for handling, packing, or storing tobacco and where there is a sufficient volume of work to justify the stationing of an inspector, sampler, or weigher.

(c) Points near an official station, to the extent permitted by the time of the inspector, sampler, or weigher at such official station.

§ 29.58 Who may obtain inspection.

Inspection, sampling, or weighing as described in § 29.56 may be requested by an interested party, or his authorized agent, by filing an application in accordance with §§ 29.59 and 29.60.

§ 29.59 How to make application.

Application for inspection, sampling, or weighing of tobacco shall be made to the Division, the office of inspection, or as the case may be, to an official inspector, sampler, or weigher. It may be made orally or in writing and delivered in person, by mail, by telegraph, or otherwise. If made orally, the Division or the official receiving it may require a written confirmation.

§ 29.60 Form of application.

Application for inspection, sampling, or weighing tobacco shall include the following information:

(a) The date of the application;

(b) The designation of the tobacco and the crop year of its production;

(c) The name and post-office address of the applicant and of the person, if any, making the application as agent;

(d) The financial interest of the applicant in the tobacco;

(e) The exact nature of the service desired as (1) inspection, (2) inspection and sealing packages, (3) sampling, or (4) weighing;

(f) A statement that the tobacco (1) is in commerce, as defined in the act, or (2) is to be inspected, sampled, or weighed in connection with its entering such commerce;

(g) If the tobacco has been officially inspected, sampled, or weighed previously, the application must have the previous certificate attached, or show with respect to such previous service (1) by whom, (2) the date, (3) previous determinations as certificated;

(h) The reason for requesting reinspection, resampling, or reweighing; and

(i) Such other necessary information as the Director may require.

§ 29.61 When application deemed filed.

An application shall be deemed filed when delivered to the Division, the office of inspection, or according to the nature of the service requested, to an official inspector, sampler, or weigher. When an application is filed, the date and time of filing shall be recorded by the official receiving it.

§ 29.62 When application may be rejected.

An application may be rejected (a) for noncompliance with the Act or the regulations in this subpart, or (b) when it is not practicable to provide the service. All expenses incurred in connection with an application rejected for noncompliance with the Act or the regulations in this subpart shall be paid by the applicant as provided in § 29.124.

§ 29.63 When application may be withdrawn.

An application may be withdrawn at any time before the requested service is rendered upon payment of expenses incurred in connection therewith as provided in § 29.124.

§ 29.64 Authority of agent.

Proof of authority of any person making an application as agent may be required in the discretion of the official receiving the application.

§ 29.65 Accessibility of tobacco.

All tobacco to be inspected, sampled, or weighed upon application shall be made accessible by the applicant for proper examination, including any necessary display in proper light for determination of grade or other characteristics or for drawing of samples. In the case of tobacco in packages, the coverings shall be removed by the applicant in such manner as may be prescribed by the inspector, sampler, or weigher.

§ 29.66 Certificates.

(a) Forms. Each certificate issued under this regulation shall (1) show that it was issued under The Tobacco Inspection Act; (2) be in a form approved for the purpose by the Director and (3) embody within its written or printed terms, with respect to the particular kind of service, all applicable information required by paragraphs (b), (c), (d), (e), and (f) of this section. Each certificate may also contain any information, not inconsistent with the act and the regulations in this subpart, as may be approved or required by the Director. The Director may, in his discretion, specify or limit the period in which a certificate shall be valid.

(b) Inspection certificate. Each inspection certificate shall show (1) the caption “Tobacco Inspection Certificate”; (2) whether it is an original, first, second, or other copy; (3) the number of the certificate; (4) the identification number and private identification marks on the lot; (5) the date and number of the official sample, if any; (6) the location of the tobacco at the time of inspection or sampling; (7) the date of inspection; (8) the type and grade of the tobacco; (9) the kind of lot or package; and (10) the signature of the official inspector; also such additional information as may be required by the Director. An inspection certificate covering a package of tobacco shall also show the form and condition of the tobacco.

(c) Sample inspection certificate. Each sample inspection certificate shall carry the caption “Tobacco Sample Inspection Certificate” and shall otherwise comply with the requirements of an inspection certificate, and in addition include a clearly worded statement that the type, grade, or other tobacco characteristics, shown therein, apply only to the tobacco contained in the sample inspected.

(d) Weight certificate. Each weight certificate shall show (1) the caption “Tobacco Weight Certificate”; (2) whether it is an original, first, second, or other copy; (3) the number of the certificate; (4) the identification number or private identification marks on the lot; (5) the location of the tobacco at the time of weighing; (6) the date of weighing; (7) the weight of each lot; (8) the kind of lot or package; and (9) the signature of the official weigher.

(e) Official sample tag. Each official sample drawn and prepared shall have attached thereto, a certificate or tag showing (1) the caption “Official Tobacco Sample”; (2) the date of sampling; (3) the location of the tobacco at the time of sampling; (4) the kind of lot or package; (5) the condition of the tobacco; (6) the identification number and private identification marks on the lot; and (7) when a lot is found to be damaged, nested, or in doubtful keeping order, a statement of such fact.

(f) Combination certificate. A combination certificate of inspection and weight may be issued under the Act, if such certificate carries the caption “Tobacco Inspection and Weight Certificate” and otherwise meets all of the requirements of paragraphs (b) and (d) of this section.

§ 29.67 Disposition of certificates.

When a certificate of inspection or weight is issued under the Act upon the request of an interested party, the original certificate and one copy shall be delivered or mailed to the applicant or a person designated by him, and one copy shall be mailed or delivered to the Division or local office of inspection. Charges may be made for additional copies furnished the interested party upon request as provided in § 29.128.

§ 29.68 Advance information.

Upon the request of an applicant for whom tobacco has been inspected, sampled, or weighed and certificated under the Act, all or any part of the contents of such certificate may be tel- egraphed or telephoned to him as his expense. Information relative to grade or other determinations contained or to be contained in a certificate shall not be divulged by an inspector, sampler, or weigher to any person other than an interested party or his agent without the approval of the Director, and such information shall not be furnished an interested party before the certificate is issued.

§ 29.69 Weighing apparatus.

A scale used for determination of weight to be certificated under the Act shall be subject to examination for accuracy according to the regulations of the State or municipality in which located. No disapproved scale shall be used to determine weight of tobacco for the purposes of the Act and the regulations in this subpart.

§ 29.71 Mandatory inspection.

Mandatory inspection consists of:

(a) Inspecting and certifying tobacco under the Act on designated markets before it is offered for sale at auction; or

(b) Inspecting and certifying tobacco at receiving stations under the Appropriations Act at the time the tobacco is delivered for sale.