[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Proposed Rules]
[Pages 61025-61030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24192]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1217
[Document Number AMS-FV-10-0015; PR-B]
RIN 0581-AD03
Softwood Lumber Research, Promotion, Consumer Education and
Industry Information Order; Referendum Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule invites comments on procedures for
conducting a referendum to determine whether issuance of a proposed
Softwood Lumber Research, Promotion, Consumer Education and Industry
Information Order (Order) is favored by domestic manufacturers and
importers of softwood lumber. Softwood lumber is used in products like
flooring, siding and framing. The procedures would also be used for any
subsequent referendum under the Order. The proposed Order is being
published separately in this issue of the Federal Register. This
proposed rule also announces the Agricultural Marketing Service's (AMS)
intent to request approval by the Office of Management and Budget (OMB)
of new information collection requirements to implement the program.
DATES: Comments must be received by November 30, 2010. Pursuant to the
Paperwork Reduction Act (PRA), comments on the information collection
burden that would result from this proposal must be received by
November 30, 2010.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments may be submitted on the Internet at:
http://www.regulations.gov or to the Research and Promotion Branch,
Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW.,
Room 0632-S, Stop 0244, Washington, DC 20250-0244; facsimile: (202)
205-2800. All comments should reference the docket number and the date
and page number of this issue of the Federal Register and will be made
available for public inspection, including name and address, if
provided, in the above office during regular business hours or it can
be viewed at http://www.regulations.gov.
Pursuant to the PRA, comments regarding the accuracy of the burden
estimate, ways to minimize the burden, including the use of automated
collection techniques or other forms of information technology, or any
other aspect of this collection of information, should be sent to the
above address. In addition, comments concerning the information
collection should also be sent to the Desk Office for Agriculture,
Office of Information and Regulatory Affairs, OMB, New Executive Office
Building, 725 17th Street, NW., Room 725, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Marketing
Specialist, Research and Promotion Branch, Fruit and Vegetable
Programs, AMS, USDA, P.O. Box 831, Beavercreek, Oregon 97004;
telephone: (503) 632-8848; facsimile (503) 632-8852; or electronic
mail: [email protected].
SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the
Commodity Promotion, Research, and Information Act of 1996 (1996 Act)
(7 U.S.C. 7411-7425).
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 the OMB.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. Section
524 of the 1996 Act provides that it shall not affect or preempt any
other Federal or state law authorizing promotion or research relating
to an agricultural commodity.
Under section 519 of the 1996 Act, a person subject to an order may
file a written petition with the U.S. Department of Agriculture (USDA)
stating that an order, any provision of an order, or any obligation
imposed in connection with an order, is not established in accordance
with the law, and request a modification of an order or an exemption
from an order. Any petition filed challenging an order, any provision
of an order, or any obligation imposed in connection with an order,
shall be filed within two years after the effective date of an order,
provision, or obligation subject to challenge in the petition. The
petitioner will have the opportunity for a hearing on the petition.
Thereafter, USDA will issue a ruling on the petition. The 1996 Act
provides that the district court of the United States for any district
in which the petitioner resides or conducts business shall have the
jurisdiction to review a final ruling on the petition, if the
petitioner files a complaint for that purpose not later than 20 days
after the date of the entry of USDA's final ruling.
This rule invites comments on procedures for conducting a
referendum to determine whether domestic manufacturers and importers of
softwood lumber favor issuance of a proposed softwood lumber Order.
Softwood lumber is used in products like flooring, siding and framing.
USDA would conduct the referendum. The program would be implemented if
it is favored by a majority of domestic manufacturers and importers of
softwood lumber voting in the referendum who also represent a majority
of the volume of softwood lumber represented in the referendum. The
procedures would also be used for any subsequent referendum under the
Order. The proposed Order is being published separately in this issue
of the Federal Register. This rule also announces AMS's intent to
request approval by the OMB of new information collection requirements
to implement the program.
The 1996 Act authorizes USDA to establish agricultural commodity
research and promotion orders which may include a combination of
promotion, research, industry information, and consumer information
activities funded by mandatory assessments. These programs are designed
to maintain and expand markets and uses for agricultural commodities.
As defined under section 513(1)(D) of the 1996 Act, agricultural
[[Page 61026]]
commodities include the products of forestry, which includes softwood
lumber.
The 1996 Act provides for alternatives within the terms of a
variety of provisions. Paragraph (e) of Section 518 of the 1996 Act
provides three options for determining industry approval of a new
research and promotion program: (1) By a majority of those persons
voting; (2) by persons voting for approval who represent a majority of
the volume of the agricultural commodity; or (3) by a majority of those
persons voting for approval who also represent a majority of the volume
of the agricultural commodity. In addition, Section 518 of the 1996 Act
provides for referenda to ascertain approval of an order to be
conducted either prior to its going into effect or within three years
after assessments first begin under an order.
USDA received a proposal for a national research and promotion
program for softwood lumber from the Blue Ribbon Commission (BRC). The
BRC is a committee of 21 chief executive officers and heads of
businesses that domestically manufacture and import softwood lumber.
Softwood lumber is used in products like flooring, siding and framing.
The program would be financed by an assessment on softwood lumber
domestic manufacturers and importers and would be administered by a
board of industry members selected by the Secretary of Agriculture
(Secretary). The initial assessment rate would be $0.35 per thousand
board feet shipped within or imported to the United States and could be
increased up to $0.50 per thousand board feet. Entities that
domestically ship or import less than 15 million board feet would be
exempt along with shipments exported outside of the United States. No
entity would pay assessments on the first 15 million board feet
domestically shipped or imported. The purpose of the program would be
to strengthen the position of softwood lumber in the marketplace,
maintain and expand markets for softwood lumber, and develop new uses
for softwood lumber within the United States.
The BRC proposed that a referendum be held among eligible domestic
manufacturers and importers to determine whether they favor
implementation of the program prior to it going into effect. The BRC
recommended that the program be implemented if it is favored by a
majority of the domestic manufacturers and importers voting in the
referendum who also represent a majority of the volume of softwood
lumber represented in the referendum. Domestic manufacturers and
importers who domestically ship or import 15 million board feet or more
of softwood lumber annually would be eligible to vote in the
referendum.
The softwood lumber and softwood lumber products covered under the
Order would be the same as those described in section 804(a) within
Title VIII (Softwood Lumber Act of 2008 or SLA of 2008) of the Tariff
Act of 1930 (19 U.S.C. 1202-1683g), as amended by section 3301 of the
Food, Conservation and Energy Act of 2008 (Pub. L. 110-246, enacted
June 18, 2008). An interim final rule issued by Customs and effective
on September 18, 2008 (73 FR 49934; August 25, 2008), prescribed an
importer declaration program and entry requirements applicable to such
softwood lumber and softwood lumber products. The declaration program
and entry requirements were required under section 803 of the SLA of
2008. Section 804 of the SLA of 2008 sets forth the scope of softwood
lumber and softwood lumber products covered by that Act. Accordingly,
all softwood lumber and softwood lumber products classified under
subheading 4407.10.00, 4409.10.10, 4409.10.20, or 4409.10.90 of the
Harmonized Tariff Schedule of the United States (HTSUS) are subject to
the importer declaration program and entry requirements and would be
covered under this Order and are described in the following paragraphs:
\1\
---------------------------------------------------------------------------
\1\ The HTS numbers referred to in this discussion are as of
January 1, 2008.
---------------------------------------------------------------------------
(1) Coniferous wood, sawn or chipped lengthwise, sliced or peeled,
whether or not planed, sanded or finger-jointed, of a thickness
exceeding 6 millimeters;
(2) Coniferous wood siding (including strips and friezes for
parquet flooring, not assembled) continuously shaped (tongued, grooved,
rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like)
along any of its edges or faces, whether or not planed, sanded, or
finger-jointed;
(3) Other coniferous wood (including strips and friezes for parquet
flooring, not assembled) continuously shaped (tongued, grooved,
rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like)
along any of its edges or faces (other than wood moldings and wood
dowel rods) whether or not planed, sanded, or finger-jointed;
(4) Coniferous wood flooring (including strips and friezes for
parquet flooring, not assembled) continuously shaped (tongued, grooved,
rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like)
along any of its edges or faces, whether or not planed, sanded, or
finger jointed; and
(5) Coniferous drilled and notched lumber and angle cut lumber.
In addition, any product classified under subheading 4409.10.05 of
the HTSUS that is continually shaped along its end and or side edges,
and unless excepted or excluded from the importer declaration
requirement, softwood lumber products that are stringers, radius cut
box-spring frame components, fence pickets, truss components, pallet
components, and door and window frame parts classified under subheading
4418.90.46.95, 4421.90.70.40, or 4421.90.97.40 of the HTSUS are covered
under the SLA of 2008 and would be covered under the Order.
The following are not subject to the importer declaration program
under section 803 of the SLA of 2008 (see section 804(b)) because they
are defined as excluded from the program and would thus not be covered
under the Order:
(1) Trusses and truss kits, properly classified under subheading
4418.90 of the HTSUS;
(2) I-Joist beams;
(3) Assembled box-spring frames;
(4) Pallets and pallet kits, properly classified under subheading
4415.20 of the HTSUS;
(5) Garage doors;
(6) Edge-glued wood, properly classified under subheading
4421.90.97.40 of the HTSUS;
(7) Complete door frames;
(8) Complete window frames;
(9) Furniture;
(10) Articles brought into the United States temporarily and for
which an exemption from duty is claimed under subchapter XIII of
chapter 98 of the HTSUS; and
(11) Household and personal effects.
Also, the following products are not subject to the importer
declaration program established under section 803 of the SLA of 2008
(see section 804(c)) because they are defined as excepted from the
program:
(1) Stringers (pallet components used for runners), if the
stringers have at least two notches on the side, positioned at equal
distance from the center, to properly accommodate forklift blades, and
properly classified under subheading 4421.90.97.40 of the HTSUS;
(2) Box-spring frame kits, if the kits contain two wooden side
rails, two wooden end (or top) rails; and varying numbers of wooden
slats; and the side rails and the end rails are radius-cut at both
ends. Box spring frame kits must be individually packaged, and contain
[[Page 61027]]
the exact number of wooden components needed to make the box-spring
frame described on the entry documents, with no further processing
required. None of the components contained in the package may exceed 1
inch in actual thickness or 83 inches in length.
(3) Radius-cut box-spring-frame components, not exceeding 1 inch in
actual thickness or 83 inches in length, ready for assembly without
further processing, if radius cuts are present on both ends of the
boards and are substantial cuts so as to completely round one corner.
(4) Fence pickets requiring no further processing and properly
classified under subheading 4421.90.70 of the HTSUS, 1 inch or less in
actual thickness, up to 8 inches wide, and 6 feet or less in length,
and having finials or decorative cuttings that clearly identify them as
fence pickets (in the case of dog-eared fence pickets, the corners of
the boards should be cut off so as to remove pieces of wood in the
shape of isosceles right angle triangles with sides measuring \3/4\ of
an inch or more).
(5) Softwood lumber originating in the United States that is
exported to another country for minor processing and imported into the
United States if the processing occurring in another country is limited
to kiln drying, planing to create smooth-to-size board, and sanding;
and the importer establishes to Customs' satisfaction upon entry that
the softwood lumber originated in the United States.
(6) Any softwood lumber or softwood lumber product that originated
in the United States, if the importer, exporter, foreign manufacturer
or original domestic manufacturer establishes to Customs' satisfaction
upon entry that the softwood lumber entered and documented as
originating in the United States was first manufactured in the United
States.
(7) Softwood lumber or softwood lumber products contained in a
single family home package or kit, regardless of classification under
the HTSUS, if the importer declares that the following requirements
have been met: (i) The package or kit constitutes a full package of the
number of wooden pieces specified in the plan, design or blueprint
necessary to produce a home of at least 700 square feet produced to a
specified plan, design or blueprint; (ii) The package or kit contains
all necessary internal and external doors and windows, nails, screws,
glue, subfloor, sheathing, beams, posts, and connectors, and if
included in the purchase contract, the decking, trim, drywall and roof
shingles specified in the plan, design or blueprint; (iii) Prior to
importation, the package or kit is sold to a United States retailer
that sells complete home packages or kits pursuant to a valid purchase
contract referencing the particular home design plan or blueprint, and
the contract is signed by a customer not affiliated with the importer;
and (iv) Softwood lumber products entered as part of the package or
kit, whether in a single entry or multiple entries on multiple days,
and are to be used solely for the construction of the single family
home specified by the home design plan, or blueprint matching the
Customs import entry.
For each entry of softwood lumber products contained in a single
family home package for which the importer declares that these four
requirements are met, the importer must retain and make available to
Customs upon request the following documentation:
(1) A copy of the appropriate home design plan, or blueprint
matching the Customs entry in the United States;
(2) A purchase contract from a retailer of home kits or packages
signed by a customer not affiliated with the importer;
(3) A listing of all parts in the package or kit being entered into
the United States that conforms to the home design package being
imported; and
(4) If a single contract involves multiple entries, an
identification of all of the items required to be listed under item (3)
that are included in each individual shipment.
Accordingly, this rule would add subpart B to part 1217 that would
establish procedures for conducting the referendum. The procedures
would cover definitions, voting instructions, use of subagents,
ballots, the referendum report, and confidentiality of information. The
procedures would be applicable for the initial referendum and future
referenda.
Initial Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the proposed rule on
small entities. Accordingly, AMS has considered the economic impact of
this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses subject to such actions so that small businesses will not be
disproportionately burdened. The Small Business Administration defines,
in 13 CFR part 121, small agricultural producers as those having annual
receipts of no more than $750,000 and small agricultural service firms
(domestic manufacturers and importers) as those having annual receipts
of no more than $7.0 million.
According to USDA's Forest Service, it is estimated that, between
2007 and 2009, there were an average of 595 domestic manufacturers of
softwood lumber in the United States annually.\2\ Using an average
price of $280 per thousand board feet, a domestic manufacturer who
ships less than 25 million board feet per year would be considered a
small entity. It is estimated that, between 2007 and 2009, about 498
domestic manufacturers, or about 61 percent, shipped less than 25
million board feet annually.\3\
---------------------------------------------------------------------------
\2\ Spelter, H., D. McKeever, D. Toth, Profile 2009: Softwood
Sawmills in the United States, USDA, p. 15.
\3\ Percentages were obtained from the American Lumber Standard
Committee, Inc. (ALSC). The ALSC administers an accreditation
program for the grademarking of lumber produced under the American
Softwood Lumber Standard (Voluntary Product Standard 20).
---------------------------------------------------------------------------
According to U.S. Customs and Border Protection data, it is
estimated that, between 2007 and 2009, there were about 833 importers
of softwood lumber annually. About 798 importers, or about 90 percent,
imported less than $7.0 million worth of softwood lumber annually.
Thus, the majority of domestic manufacturers and importers of softwood
lumber would be considered small entities.
It is estimated that, for 2007-2008, total output (production) of
softwood lumber by U.S. sawmills averaged about 29.5 billion board feet
annually. Of the 29.5 billion board feet, 12.6 billion board feet were
from the southern states, 14.4 billion board feet were from the western
states, and 2.5 billion board feet were from the northeast and lake
states. (Data for the western states is from the Western Wood Products
Association \4\ and data for the other two regions is from the U.S.
Census Bureau \5\.)
---------------------------------------------------------------------------
\4\ Western Wood Products Association, 2008 Statistical
Yearbook, p. 32.
\5\ U.S. Census Bureau, 2009, Construction, http://www.census.gov/mcd/.
---------------------------------------------------------------------------
According to U.S. Department of Commerce, Census Bureau, Foreign
Trade Statistics data,\6\ imports of softwood lumber from 2007 through
2009 averaged about 13 billion board feet annually. During those years,
imports from Canada averaged 12 billion board feet annually, comprising
about 92 percent of total imports; imports from western Europe averaged
434 million board feet annually, comprising about 3 percent of total
imports; and imports from Chile averaged 255 million board feet
[[Page 61028]]
annually, comprising about 2 percent of total imports. Imports from
other countries accounted for the remaining 3 percent of total imports
for 2007 through 2009.
---------------------------------------------------------------------------
\6\ http://www.fas.usda.gov/gats; Accessed 5/1/10.
---------------------------------------------------------------------------
This rule invites comments on procedures for conducting a
referendum to determine whether domestic manufacturers and importers of
softwood lumber favor issuance of a proposed softwood lumber Order.
Softwood lumber is used in products like flooring, siding and framing.
USDA would conduct the referendum. The program would be implemented if
it is favored by a majority of domestic manufacturers and importers of
softwood lumber voting in a referendum who also represent a majority of
softwood lumber represented in the referendum. The procedures would
also be used for any subsequent referendum under the Order. The
procedures are authorized under paragraph (e) of Section 518 the 1996
Act.
Regarding the economic impact of this rule on affected entities,
eligible softwood lumber domestic manufacturers and importers would
have the opportunity to participate in the referendum. The Order would
exempt domestic manufacturers and importers who ship or import less
than 15 million board feet annually from the payment of assessments.
Exempt domestic manufacturers and importers would not be eligible to
participate in the referendum. Of the 595 domestic manufacturers and
883 importers, it is estimated that about 363 domestic manufacturers
and 103 importers would pay assessments under the Order and thus be
eligible to vote in the referendum. It is estimated that if $17.5
million were collected in assessments ($0.35 per thousand board feet
assessment rate with 50 billion board feet assessed), 25 percent, or
about $4 million, would be paid by importers and 75 percent, or about
$13 million, would be paid by domestic manufacturers. Voting in the
referendum is optional. If domestic manufacturers and importers chose
to vote, the burden of voting would be offset by the benefits of having
the opportunity to vote on whether or not they want to be covered by
the program.
Regarding alternatives, USDA considered requiring eligible voters
to vote in person at various USDA offices across the country. USDA also
considered electronic voting, but the use of computers is not
universal. Conducting the referendum from one central location by mail
ballot would be more cost effective and reliable. USDA would provide
easy access to information for potential voters through a toll free
telephone line.
This action would impose an additional reporting burden on eligible
domestic manufacturers and importers of softwood lumber. Eligible
domestic manufacturers and importers would have the opportunity to
complete and submit a ballot to USDA indicating whether or not they
favor implementation of the proposed Order. The specific burden for the
ballot is detailed later in this document in the section titled
Paperwork Reduction Act. As with all Federal promotion programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sector agencies.
Finally, USDA has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
AMS 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.
Regarding outreach efforts, USDA would keep these individuals
informed throughout the program implementation and referendum process
to ensure that they are aware of and are able to participate in the
program implementation process. USDA would also publicize information
regarding the referendum process so that trade associations and related
industry media can be kept informed.
USDA has performed this initial RFA analysis regarding the impact
of this proposed rule on small businesses.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the referendum ballot, which represents the information
collection and recordkeeping requirements that may be imposed by this
rule, has been submitted to OMB for approval.
Title: Softwood Lumber Research, Promotion, Consumer Education and
Industry Information Order.
OMB Number: 0581-NEW.
Expiration Date of Approval: 3 years from OMB date of approval.
Type of Request: New information collection for research and
promotion programs.
Abstract: The information collection requirements in the request
are essential to carry out the intent of the 1996 Act. The information
collection concerns a proposal received by USDA for a national research
and promotion program for softwood lumber. The program would be
financed by an assessment on softwood lumber domestic manufacturers and
importers and would be administered by a board of industry members
selected by the Secretary. The program would provide for an exemption
for the first 15 million board feet of lumber shipped by domestic
manufacturers within the United States or imported into the United
States during the year. Exports of softwood lumber from the United
States would also be exempt from assessments. A referendum would be
held among eligible domestic manufacturers and importers to determine
whether they favor implementation of the program prior to it going into
effect. The purpose of the program would be to help build the market
for softwood lumber.
The information collection requirements in this rule concern the
referendum that would be held to determine whether the program is
favored by the industry. Domestic manufacturers and importers of 15
million or more board feet annually would be eligible to vote in the
referendum. The ballot would be completed by eligible domestic
manufacturers and importers who want to indicate whether or not they
support implementation of the program.
Referendum Ballot
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average 0.25 hour per application.
Respondents: Domestic manufacturers and importers.
Estimated Number of Respondents: 464 (363 domestic manufacturers
and 103 importers).
Estimated Number of Responses per Respondent: 1 every 5 years
(0.2).
Estimated Total Annual Burden on Respondents: 23.20 hours.
The ballot would be added to the other information collections
approved under OMB No. 0581-NEW.
An estimated 464 respondents would provide information to the Board
(363 domestic manufacturers and 103 importers). The estimated cost of
providing the information to the Board by respondents would be $765.60.
This total has been estimated by multiplying 23.20 total hours required
for reporting and recordkeeping by $33, the average mean hourly
earnings of various occupations involved in keeping this information.
Data for computation of this hourly rate was obtained from the U.S.
Department of Labor Statistics.
The proposed Order's provisions have been carefully reviewed, and
every effort has been made to minimize any
[[Page 61029]]
unnecessary recordkeeping costs or requirements, including efforts to
utilize information already submitted under other programs administered
by USDA and other state programs.
Request for Public Comment Under the Paperwork Reduction Act
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of functions of the
proposed Order and USDA's oversight of the proposed Order, including
whether the information would have practical utility; (b) the accuracy
of USDA's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (c) the accuracy of USDA's estimate of the principal
manufacturing areas in the United States for softwood lumber; (d) the
accuracy of USDA's estimate of the number of domestic manufacturers and
importers of softwood lumber that would be covered under the program;
(e) ways to enhance the quality, utility, and clarity of the
information to be collected; and (f) ways to minimize the burden of the
collection of information on those who are to respond, including the
use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0581-NEW. In
addition, the docket number, date, and page number of this issue of the
Federal Register also should be referenced. Comments should be sent to
the same addresses referenced in the ADDRESSES section of this rule.
A 60-day comment period is provided to allow interested persons to
comment on this proposed information collection. All written comments
received will be summarized and included in the request for OMB
approval. All comments will also become a matter of public record.
List of Subjects in 7 CFR Part 1217
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Softwood Lumber, Promotion,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7, Chapter XI of the Code of Federal Regulations, as proposed to
be amended elsewhere in this issue of the Federal Register, be further
amended as follows:
PART 1217--SOFTWOOD LUMBER RESEARCH, PROMOTION, CONSUMER EDUCATION
AND INDUSTRY INFORMATION ORDER
1. The authority citation for part 1217 continues to read as
follows:
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
2. Subpart B of 7 CFR part 1217 is added to read as follows:
Subpart B--Referendum Procedures
Sec.
1217.100 General.
1217.101 Definitions.
1217.102 Voting.
1217.103 Instructions.
1217.104 Subagents.
1217.105 Ballots.
1217.106 Referendum report.
1217.107 Confidential information.
1217.108 OMB Control number.
Subpart B--Referendum Procedures
Sec. 1217.100 General.
Referenda to determine whether eligible domestic manufacturers and
importers favor the issuance, continuance, amendment, suspension, or
termination of the Softwood Lumber Research, Promotion, Consumer
Education, and Industry Information Order shall be conducted in
accordance with this subpart.
Sec. 1217.101 Definitions.
For the purposes of this subpart:
(a) Administrator means the Administrator of the Agricultural
Marketing Service, with power to delegate, or any officer or employee
of the U.S. Department of Agriculture to whom authority has been
delegated or may hereafter be delegated to act in the Administrator's
stead.
(b) Customs means the U.S. Customs and Border Protection or U.S.
Customs Service, an agency of the U.S. Department of Homeland Security.
(c) Department or USDA means the U.S. Department of Agriculture 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 the Secretary's stead.
(d) Eligible domestic manufacturer means any person who
manufactured and shipped 15 million board feet or more of softwood
lumber in the United States during the representative period.
(e) Eligible importer means any person who imported 15 million
board feet or more of softwood lumber into the United States during the
representative period as a principal or as an agent, broker, or
consignee of any person who manufactured softwood lumber outside of the
United States for sale in the United States, and who is listed as the
importer of record for such softwood lumber. Importation occurs when
softwood lumber manufactured outside of the United States is released
from custody by Customs and introduced into the stream of commerce in
the United States. Included are persons who hold title to foreign-
manufactured softwood lumber immediately upon release by Customs, as
well as any persons who act on behalf of others, as agents or brokers,
to secure the release of softwood lumber from Customs when such
softwood lumber is entered or withdrawn for use in the United States.
(f) Manufacture means the process of transforming softwood logs
into softwood lumber.
(g) Order means the Softwood Lumber Research, Promotion, Consumer
Education and Industry Information Order.
(h) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity. For
the purpose of this definition, the term ``partnership'' includes, but
is not limited to:
(1) A husband and a wife who have title to, or leasehold interest
in, a softwood lumber manufacturing entity as tenants in common, joint
tenants, tenants by the entirety, or, under community property laws, as
community property; and
(2) So called ``joint ventures'' wherein one or more parties to an
agreement, informal or otherwise, contributed land, facilities,
capital, labor, management, equipment, or other services, or any
variation of such contributions by two or more parties, so that it
results in the domestic manufacturing or importation of softwood lumber
and the authority to transfer title to the softwood lumber so
manufactured or imported.
(i) Referendum agent or agent means the individual or individuals
designated by the Secretary to conduct the referendum.
(j) Representative period means the period designated by the
Department.
(k) Softwood lumber means all softwood lumber and softwood lumber
products described in section 804(a) of Title VIII of the Tariff Act of
1930, as amended (19 U.S.C. 1202-1683g). This definition does not
include those products excluded or excepted under sections 804(b) and
(c) of that Act.
(l) Softwood means one of the botanical groups of trees that have
needle-like or scale-like leaves, the conifers.
(m) United States means collectively the 50 states, the District of
Columbia,
[[Page 61030]]
the Commonwealth of Puerto Rico, and the territories and possessions of
the United States.
Sec. 1217.102 Voting.
(a) Each eligible domestic manufacturer and importer of softwood
lumber shall be entitled to cast only one ballot in the referendum.
However, each domestic manufacturer in a landlord/tenant relationship
or a divided ownership arrangement involving totally independent
entities cooperating only to manufacture softwood lumber, in which more
than one of the parties is a domestic manufacturer or importer, shall
be entitled to cast one ballot in the referendum covering only such
domestic manufacturer or importer's share of ownership.
(b) Proxy voting is not authorized, but an officer or employee of
an eligible corporate domestic manufacturer or importer, or an
administrator, executor, or trustee of an eligible entity may cast a
ballot on behalf of such entity. Any individual so voting in a
referendum shall certify that such individual is an officer or employee
of the eligible entity, or an administrator, executive, or trustee of
an eligible entity and that such individual has the authority to take
such action. Upon request of the referendum agent, the individual shall
submit adequate evidence of such authority.
(c) A single entity who domestically manufactures and imports
softwood lumber may cast one vote in the referendum.
(d) All ballots are to be cast by mail or other means, as
instructed by the Department.
Sec. 1217.103 Instructions.
The referendum agent shall conduct the referendum, in the manner
provided in this subpart, under the supervision of the Administrator.
The Administrator may prescribe additional instructions, consistent
with the provisions of this subpart, to govern the procedure to be
followed by the referendum agent. Such agent shall:
(a) Determine the period during which ballots may be cast;
(b) Provide ballots and related material to be used in the
referendum. The ballot shall provide for recording essential
information, including that needed for ascertaining whether the person
voting, or on whose behalf the vote is cast, is an eligible voter;
(c) Give reasonable public notice of the referendum:
(1) By using available media or public information sources, without
incurring advertising expense, to publicize the dates, places, method
of voting, eligibility requirements, and other pertinent information.
Such sources of publicity may include, but are not limited to, print
and radio; and
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible domestic manufacturers and importers whose
names and addresses are known to the referendum agent, the instructions
on voting, a ballot, and a summary of the terms and conditions of the
proposed Order. No person who claims to be eligible to vote shall be
refused a ballot;
(e) At the end of the voting period, collect, open, number, and
review the ballots and tabulate the results in the presence of an agent
of a third party authorized to monitor the referendum process;
(f) Prepare a report on the referendum; and
(g) Announce the results to the public.
Sec. 1217.104 Subagents.
The referendum agent may appoint any individual or individuals
necessary or desirable to assist the agent in performing such agent's
functions of this subpart. Each individual so appointed may be
authorized by the agent to perform any or all of the functions which,
in the absence of such appointment, shall be performed by the agent.
Sec. 1217.105 Ballots.
The referendum agent and subagents shall accept all ballots cast.
However, if an agent or subagent deems that a ballot should be
challenged for any reason, the agent or subagent shall endorse above
their signature, on the ballot, a statement to the effect that such
ballot was challenged, by whom challenged, the reasons therefore, the
results of any investigations made with respect thereto, and the
disposition thereof. Ballots invalid under this subpart shall not be
counted.
Sec. 1217.106 Referendum report.
Except as otherwise directed, the referendum agent shall prepare
and submit to the Administrator a report on the results of the
referendum, the manner in which it was conducted, the extent and kind
of public notice given, and other information pertinent to the analysis
of the referendum and its results.
Sec. 1217.107 Confidential information.
The ballots and other information or reports that reveal, or tend
to reveal, the vote of any person covered under the Order and the voter
list shall be strictly confidential and shall not be disclosed.
Sec. 1217.108 OMB control number.
The control number assigned to the information collection
requirement in this subpart by the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. is OMB
control number 0581-NEW.
Dated: September 22, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-24192 Filed 9-30-10; 8:45 am]
BILLING CODE 3410-02-P