[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Rules and Regulations]
[Pages 46185-46202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19491]



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  Federal Register / Vol. 76, No. 148 / Tuesday, August 2, 2011 / Rules 
and Regulations  

[[Page 46185]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1217

[Document Number AMS-FV-10-0015; FR]
RIN 0581-AD03


Softwood Lumber Research, Promotion, Consumer Education and 
Industry Information Order

AGENCY: Agricultural Marketing Service.

ACTION: Final rule.

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SUMMARY: This rule establishes a Softwood Lumber Research, Promotion, 
Consumer Education and Industry Information Order (Order). Softwood 
lumber is used in products like flooring, siding and framing. The 
program will be financed by an assessment on softwood lumber domestic 
manufacturers and importers and will be administered by a board of 
industry members selected by the Secretary of Agriculture (Secretary). 
The initial assessment rate will be $0.35 per thousand board feet of 
softwood lumber shipped within or imported to the United States. The 
purpose of the program is 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 
U.S. Department of Agriculture (USDA) conducted a referendum among 
eligible domestic softwood lumber manufacturers and importers from May 
23 through June 10, 2011. Sixty-seven percent of those voting in the 
referendum representing 80 percent of the volume of softwood lumber 
represented in the referendum favored implementation of the program.

DATES: Effective August 3, 2011. Collection of assessments (Sec. Sec.  
1217.52 and 1217.53) and appropriate reporting and recordkeeping 
(Sec. Sec.  1217.70 and 1217.71) will begin January 1, 2012.

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).
    As part of this rulemaking process, a proposed rule was published 
in the Federal Register on October 1, 2010 (75 FR 61002). That rule 
provided for a 60-day comment period which ended on November 30, 2010. 
Fifty-five comments were received. The comments were addressed in a 
second proposed rule and referendum order that was published in the 
Federal Register on April 22, 2011 (78 FR 22757). A final rule 
prescribing referendum procedures was also published in the Federal 
Register on April 22, 2011 (76 FR 22752).
    Domestic manufacturers and importers who manufactured and shipped 
or imported 15 million board feet or more of softwood lumber during the 
representative period January 1 through December 31, 2010, were 
eligible to vote in the referendum held from May 23 through June 10, 
2011. Sixty-seven percent of those voting in the referendum 
representing 80 percent of the volume represented in the referendum 
approved implementation of the program. The referendum was conducted by 
mail ballot.

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 Office 
of Management and Budget (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 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.

Background

    This rule establishes an industry-funded research, promotion, and 
information program for softwood lumber. Softwood lumber is used in 
products like flooring, siding and framing. The program will be 
financed by an assessment on softwood lumber domestic manufacturers and 
importers and will be administered by a board of industry members 
selected by the Secretary. The initial assessment rate is $0.35 per 
thousand board feet of softwood lumber shipped within or imported to 
the United States. Entities that domestically manufacture and ship or 
import less than 15 million board feet per fiscal year will be exempt 
from the payment of assessments. Additionally, assessed entities will 
not pay assessments on the first 15 million board feet of softwood 
lumber shipped domestically or imported during the year. Exports from 
the United States will also be exempt from assessments. The purpose of 
the program is 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 
proposal was submitted to USDA by the Blue Ribbon Commission (BRC), a 
committee of 21 chief executive officers and heads of businesses that 
domestically manufacture and import softwood lumber.

[[Page 46186]]

Authority in 1996 Act

    The Order is authorized under the 1996 Act which 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 commodities include the products of forestry, 
which includes softwood lumber.
    The 1996 Act provides for a number of optional provisions that 
allow the tailoring of orders for different commodities. Section 516 of 
the 1996 Act provides permissive terms for orders, and other sections 
provide for alternatives. For example, section 514 of the 1996 Act 
provides for orders applicable to (1) producers, (2) first handlers and 
others in the marketing chain as appropriate, and (3) importers (if 
imports are subject to assessments). Section 516 states that an order 
may include an exemption of de minimis quantities of an agricultural 
commodity; different payment and reporting schedules; coverage of 
research, promotion, and information activities to expand, improve, or 
make more efficient the marketing or use of an agricultural commodity 
in both domestic and foreign markets; provision for reserve funds; 
provision for credits for generic and branded activities; and 
assessment of imports.
    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 the order. An order also may provide for its approval in a 
referendum based upon different voting patterns. Section 515 provides 
for establishment of a board or council from among producers, first 
handlers and others in the marketing chain as appropriate, and 
importers, if imports are subject to assessment.

Industry Background

    The softwood lumber industry is comprised of sawmills that make 
products from softwood trees. Softwoods include the botanical group of 
trees that have needle-like or scale-like leaves, or conifers. Softwood 
lumber includes certain products manufactured from softwoods (or 
coniferous trees). Softwood lumber is used in products like flooring, 
siding, and framing.
    Softwood lumber sizes are identified by the thickness and width of 
the board when it is first cut from the log. This is known as ``rough 
cut'' when the wood is still green and wet. Once the wood dries, it 
shrinks. After the wood dries, the surface of the board is smoothed to 
make the wood a uniform size. This is known as ``planing'' the wood. 
Once planed, the wood is considered finished. In the industry, the term 
nominal is used to describe the size of the rough cut board, prior to 
finishing. For example, a 2 x 4 board is a nominal size. The actual 
size of a 2 x 4 board is 1.5 inches in thickness by 3.5 inches in 
width. The length of the board is typically the actual length. Usually 
there is a \1/2\ inch difference in measurements over 2 inches and \1/
4\ inch difference in measurements less than 2 inches. For purposes of 
the Order and the tables in this rule, nominal sizes are used. One 
nominal board foot is a unit of measurement of softwood lumber 
represented by a board 12 inches long, 12 inches wide, and 1 inch thick 
or its cubic equivalent. A board foot calculation for softwood lumber 1 
inch or more in thickness is based on its nominal thickness and width 
by the actual length. Softwood lumber with a nominal thickness of less 
than 1 inch is calculated as 1 inch.

Regional U.S. Timber Production 1
---------------------------------------------------------------------------

    \1\ Spelter, H., D. McKeever, D. Toth, Profile 2009: Softwood 
Sawmills in the United States, USDA, p. 7.
---------------------------------------------------------------------------

    According to USDA's Forest Service, the main species of softwoods 
in the southern United States are pines that grow fast and can be sold 
for lumber in 25 to 30 years. Southern pines are often treated with 
preservatives. About a third of the region's lumber is sold to treaters 
for further processing (i.e., apply preservatives).\2\
---------------------------------------------------------------------------

    \2\ Micklewright, J.T., Wood preservation statistics, American 
Wood Preservers Assocation, p. 25.
---------------------------------------------------------------------------

    Most of the northern U.S. softwood lumber industry is in Maine 
where the predominant species are white spruce and balsam fir. These 
trees are typically used for light framing such as wall studs. Second 
growths of red pine planted in the 1930s and later have been harvested 
by a few firms in the lake states. Red pine is also easy to treat and 
much of it is processed. White pine trees are also prevalent in the 
northern United States. They are used for paneling, millwork, and 
joinery. Millwork includes woodwork that has been made at a mill, and 
joinery is the trade of constructing articles by joining together 
pieces of wood.
    The bulk of timber production in the western United States is on 
the coast of the Pacific Northwest. Douglas fir and hemlock trees 
dominate while farther south in northern California, redwood trees, 
suitable for outdoor structures like fences, siding and decks, are 
common. East of these regions, ponderosa pine dominates and is used for 
millwork and joinery. Northern Idaho and Montana contain lodgepole pine 
and other species suitable for light framing.

U.S. Softwood Lumber Output by Region 3
---------------------------------------------------------------------------

    \3\ Production data was compiled by Henry Spelter of Wood 
Futures Insight and Forest Economic Advisors.
---------------------------------------------------------------------------

    For 2008-2009 (most recent data available to USDA), total output 
(production) of softwood lumber by U.S. sawmills averaged about 24.5 
billion board feet annually. Of the 24.5 billion board feet, 11.7 
billion board feet were from the U.S. South, 11.3 billion board feet 
were from the U.S. West, and 2.4 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\
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    \4\ Western Wood Products Association, 2008 Statistical 
Yearbook, p. 32.
    \5\ U.S. Census Bureau, 2009, Construction, http://www.census.gov/mcd/.
---------------------------------------------------------------------------

Softwood Lumber Markets 6
---------------------------------------------------------------------------

    \6\ Spelter, McKeever and Toth, Profile 2009, p. 2-5.
---------------------------------------------------------------------------

    The residential market is the largest consumer of softwood lumber 
in the United States. This includes single and multifamily homes, 
mobile homes, and remodeling. The residential market accounted for 75 
percent of the total U.S. softwood lumber market in 2006 and 63 percent 
of the market in 2009. Table 1 below shows this data from 2003 through 
2009.

[[Page 46187]]



                                               Table 1--U.S. Softwood Lumber Markets From 2003-2009 Volume
                                                                  [Billion board feet]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Single       Multi-                                      Non-            Non-
                                      family       family       Mobile      Residential    residential,    residential,   Industrial and    Total U.S.
                                      homes        homes        homes       remodeling       buildings         other           other
--------------------------------------------------------------------------------------------------------------------------------------------------------
2003.............................         20.2          1.7          1.1            19.3             3.6             0.6            10.2            56.7
2004.............................         22.2          1.8          1.1            20.3             3.9             0.5            11.1            60.8
2005.............................         24.5          1.9          1.2            20.9             3.8             0.6            11.7            64.6
2006.............................         21.3          1.9          0.9            21.4             3.6             0.6            11.3            61.0
2007.............................         14.9          1.7          0.8            19.7             4.0             0.6            11.4            53.1
2008.............................          8.4          1.4          0.6            17.5             3.9             0.6             9.6            42.0
2009.............................          5.3          0.7          0.4            14.2             3.6             0.6             7.8            32.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Shares (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2003.............................           36            3            2              34               6               1              18  ..............
2004.............................           36            3            2              33               6               1              18  ..............
2005.............................           38            3            2              32               6               1              18  ..............
2006.............................           35            3            2              35               6               1              18  ..............
2007.............................           28            3            1              37               8               1              21  ..............
2008.............................           20            3            1              42               9               1              23  ..............
2009.............................           16            2            1              44              11               2              24  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

    During normal economic conditions, single family homes comprise the 
largest share of the softwood lumber market in the United States. 
Single family home use rose from 20.2 billion board feet in 2003 to 
24.5 billion board feet in 2005 and fell to 5.3 billion board feet in 
2009. Single family homes comprised 38 percent of the market for 
softwood lumber in 2005 and 16 percent of the market by 2009.
    Home building is cyclical in nature (follows a pattern of highs and 
lows) as compared to other end uses for softwood lumber. Residential 
remodeling and other uses experienced downturns between 2006 and 2009, 
but less severe than the market for single family homes. Softwood 
lumber used for residential remodeling fell from 21.4 billion board 
feet in 2006 to 14.2 billion board feet in 2009. As a percentage of 
softwood lumber market share, residential remodeling rose from 35 
percent in 2006 to 44 percent in 2009.

Export Markets7
---------------------------------------------------------------------------

    7 Spelter, McKeever and Toth, Profile 2009, p. 15.
---------------------------------------------------------------------------

    Export markets are another outlet for softwood lumber. Two decades 
ago, U.S. exports were about seven times greater than they were in 
recent years, but a strong U.S. dollar from the mid-1990s onward helped 
to reduce exports. Additionally, different size and grade standards for 
softwood lumber in export markets complicate production when log sizes 
have to be converted from imperial units (feet) to metric (meters). 
Most manufacturers have thus focused on North American sales. However, 
in slow periods such as in recent years, efforts have been made to 
supply export markets to the extent possible.

Competition 8
---------------------------------------------------------------------------

    8 Ibid.
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    Softwood lumber competes with several alternative products. Steel 
and concrete dominate larger residential and nonresidential projects. 
Brick, concrete, and vinyl are often used in low-rise residential and 
nonresidential buildings. Within the last decade, wood-plastic 
composite lumber has become popular for outdoor decking, railing, trim, 
and fencing. Other wood-based products such as laminated veneer are 
becoming more popular in place of softwood lumber.

Imports

    According to U.S. Department of Commerce, Census Bureau, Foreign 
Trade Statistics data (Census) 9, imports of softwood lumber from 2008 
through 2010 averaged about 10.2 billion board feet annually. During 
those years, imports from Canada averaged 9.6 billion board feet 
annually, comprising about 94 percent of total imports; imports from 
western Europe averaged 224 million board feet annually, comprising 
about 2.2 percent of total imports; and imports from Chile averaged 174 
million board feet annually, comprising about 1.8 percent of total 
imports. Imports from other countries accounted for the remaining 2 
percent of total imports for 2008 through 2010.
---------------------------------------------------------------------------

    9 http://www.fas.usda.gov/gats; accessed 3/12/11.
---------------------------------------------------------------------------

Price and Cost Trends 10
---------------------------------------------------------------------------

    10 Spelter, McKeever and Toth, Profile 2009, p. 5-6.
---------------------------------------------------------------------------

    Prices in the lumber industry can change rapidly in response to 
shifts in demand or supply. Prices are set competitively with many 
buyers and sellers bidding in a business that tends to be cyclical in 
nature. As shown in Table 2 below, revenue for the State of Oregon per 
thousand board feet was about $309 in 2003, rose to $420 in 2004, and 
fell to $219 in 2008. In comparison, revenue for the State of Georgia 
per thousand board feet was about $323 in 2003, rose to $418 in 2005, 
and fell to $262 in 2008.

                               Table 2--Typical Sawmill Operating Costs 2003-2008
----------------------------------------------------------------------------------------------------------------
                                                        Oregon                              Georgia
                                         -----------------------------------------------------------------------
                                            Costs  ($ per    Revenue  ($ per    Costs  ($ per    Revenue  ($ per
                                           thousand board    thousand board    thousand board    thousand board
                                                feet)             feet)             feet)             feet)
----------------------------------------------------------------------------------------------------------------
2003....................................               295               309               311               323
2004....................................               330               420               335               378
2005....................................               349               370               349               418
2006....................................               335               316               349               330
2007....................................               297               260               300               269

[[Page 46188]]

 
2008....................................               238               219               328               262
----------------------------------------------------------------------------------------------------------------

    Several factors contributed to the revenue changes shown in Table 
2. Some mills in the interior western United States were forced to 
close because of constraints on the availability of timber. A dispute 
with Canada over lumber imports that resulted in a 15 percent export 
levy for some U.S.-bound shipments and quotas on others after October 
2006 impacted supply.
    Wood, labor, and operating costs also impact revenue. The cost of 
wood in the United States is negotiated between buyers and sellers. 
Companies often enter into long-term supply contracts with timber 
owners where the price is negotiated quarterly based on sales and 
market conditions. Labor is the second biggest component of lumber 
costs. According to the U.S. Department of Labor, U.S. wages have 
increased about 3 percent per year during this decade.\11\ At the same 
time, labor productivity in sawmilling has increased by a like amount 
leaving unit labor costs flat. The other main cost for sawmills is 
energy, but most mills use their own residues to generate heat for 
their drying needs. This has lessened the impact of rising energy 
prices on sawmills. As shown in Table 2, total operating costs in 
Oregon per thousand board feet averaged $295 in 2003, rose to $349 in 
2005, and fell to $238 in 2008. In comparison, total operating costs in 
Georgia per thousand board feet averaged $311 in 2003, rose to $349 in 
2005 and 2006, and fell to $328 in 2008.
---------------------------------------------------------------------------

    \11\ U.S. Department of Labor, Bureau of Labor Statistics, 2009, 
Employment cost index, Washington, DC, http://data.bls.gov/PDQ/outside.jsp?survey=ci. accessed 3/27/09.
---------------------------------------------------------------------------

Need for a Program

    The softwood lumber industry is experiencing one of the worst 
markets in history. The collapse of the housing market caused prices to 
fall from $404 per thousand board feet in 2004 to $222 per thousand 
board feet in 2009. Prices rose slightly in 2010 to $284 per thousand 
board feet.\12\ Competition from other building products like cement 
and vinyl has also helped to reduce demand for softwood lumber.
---------------------------------------------------------------------------

    \12\ Price data was obtained from Random Lengths Publications, 
Inc., and is a framing composite price that is designed as a broad 
measure of price movement in the lumber market (http://www.randomlengths.com).
---------------------------------------------------------------------------

    Additionally, at the request of the U.S. and Canadian governments, 
the U.S. Endowment for Forestry and Communities (Endowment) and the 
Binational Softwood Lumber Council (BSLC) were formed in 2006 in 
accordance with the 2006 Softwood Lumber Agreement. The Endowment is a 
non-profit organization that works with public and private sectors to 
advance the interests of the forestry community. The Endowment 
conducted a study to assess the feasibility of a softwood lumber 
research and promotion program. In the past, the industry attempted 
voluntary efforts to promote forest products, but they were sporadic, 
underfunded, and narrowly targeted. These campaigns did not last long 
enough to succeed. The Endowment recommended to the industry that 
Canadian and U.S. companies pursue a shared vision and achieve broad 
agreement on creating a unified softwood lumber research and promotion 
program. In 2008, the Endowment held an industry meeting in Seattle, 
Washington, to discuss the merits of such a program and obtain industry 
feedback.
    As a result of the Endowment's efforts, the BRC was subsequently 
formed to pursue an industry research and promotion program. The BRC is 
comprised of 21 members representing the United States and Canada. 
Funding and support for the BRC's efforts come from the BSLC, a non-
profit organization whose mission is to promote increased cooperation 
between the U.S. and Canadian softwood lumber industries and to 
strengthen and expand markets for softwood lumber products in both 
countries. The BRC submitted an initial proposal for a program to USDA 
in February 2010.
    As recommended by the BRC, the program will be financed by an 
assessment on softwood lumber domestic manufacturers and importers and 
administered by a board of industry members selected by the Secretary. 
The initial assessment rate will be $0.35 per thousand board feet 
shipped within or imported to the United States and can be increased up 
to a maximum of $0.50 per thousand board feet. Entities that 
domestically ship or import less than 15 million board feet will be 
exempt along with shipments exported outside of the United States. 
Assessed entities will not pay assessments on the first 15 million 
board feet shipped or imported. The purpose of the program is 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. A referendum was held among 
eligible domestic manufacturers and importers to determine whether they 
favored implementation of the program prior to it going into effect. 
Sixty-seven percent of those voting in the referendum representing 80 
percent of the volume represented in the referendum approved 
implementation of the program. The specific provisions of the program 
are discussed below.

Provisions of Program

    Pursuant to the 1996 Act, Sec. Sec.  1217.1 through 1217.30 of the 
Order define certain terms that will be used throughout the Order. 
Several of the terms are common to all research and promotion programs 
authorized under the 1996 Act while other terms are specific to the 
softwood lumber Order.
    Sections 1217.40 through 1217.47 of the Order detail the 
establishment and membership of the Softwood Lumber Board, nominations 
and appointments, the term of office, removal and vacancies, procedure, 
reimbursement and attendance, powers and duties, and prohibited 
activities.
    Sections 1217.50 through 1217.53 of the Order detail requirements 
regarding the Board's budget and expenses, financial statements, 
assessments, and exemption from assessments. The Board's programs and 
expenses shall be funded through assessments on manufacturers for the 
U.S. market, other income, and other funds available to the Board. The 
Order provides for an initial assessment rate of $0.35 per thousand 
board feet. Domestic manufacturers will pay assessments based on the 
volume of softwood lumber shipped within the United States and 
importers will pay assessments based on the volume of

[[Page 46189]]

softwood lumber imported to the United States.
    Two years after the Order becomes effective and periodically 
thereafter, the Board shall review the assessment rate and, if 
appropriate, recommend a change in the rate. At least two-thirds of the 
Board members must favor a change in the assessment rate. The 
assessment rate can be no less than $0.35 per thousand board feet and 
no more than $0.50 per thousand board feet. Any change in the 
assessment rate within this range is subject to rulemaking by the 
Secretary.
    Domestic manufacturers must pay their assessments owed to the Board 
by the 30th calendar day of the month following the end of the quarter 
in which the softwood lumber was shipped. Importer assessments will be 
collected through Customs.
    The Order provides authority for the Board to impose a late payment 
charge and interest for assessments overdue to the Board by 60 calendar 
days. The late payment charge and rate of interest shall be prescribed 
in the Order's regulations issued by the Secretary.
    The Order provides for four exemptions. First, manufacturers for 
the U.S. market who domestically ship or import less than 15 million 
board feet during a fiscal year are exempt from paying assessments. 
Domestic manufacturers and importers must apply to the Board for an 
exemption prior to the start of the fiscal year. The Board will issue, 
if deemed appropriate, a certificate of exemption to the eligible 
manufacturer for the U.S. market. Once approved, domestic manufacturers 
will not have to pay assessments to the Board for the applicable fiscal 
year. Approved importers must retain a copy of the certificate of 
exemption and may be requested to submit the certificate to Customs. 
USDA is working to develop a process whereby approved importers could 
submit a copy the exemption certificate to Customs so that Customs 
would not collect the assessment. However, the only available 
alternative at this time is for Customs to collect the assessment, and 
for the Board to refund such importers their assessments no later than 
60 calendar days after receipt of such assessment by the Board. Section 
1217.53(a)(2) in this final rule was modified to clarify that importers 
may be requested to submit a copy of the certificate of exemption to 
Customs.
    The second exemption under the Order is for manufacturers for the 
U.S. market who domestically ship or import more than 15 million board 
feet of softwood lumber annually. Domestic manufacturers will not pay 
assessments on their first 15 million board feet of softwood lumber 
shipped during the applicable fiscal year. Importers will receive a 
refund from the Board for the applicable assessments collected by 
Customs no later than 60 calendar days after receipt of such 
assessments by the Board.
    The third exemption under the Order is for exports of softwood 
lumber, and the fourth exemption is for organic lumber.
    Sections 1217.60 through 1217.62 of the Order details requirements 
regarding promotion, research and information programs, plans and 
projects authorized under the Order.
    Sections 1217.70 through 1217.72 specify the reporting and 
recordkeeping requirements under the Order as well as requirements 
regarding confidentiality of information.
    Section 1217.81(a) of the Order specifies that the program will not 
go into effect unless it is approved by a majority of domestic 
manufacturers and importers voting in a referendum who also represent a 
majority of the volume of softwood lumber represented in the referendum 
who, during a representative period determined by the Secretary, were 
engaged in the domestic manufacturing or importation of softwood lumber 
into the United States. As previously mentioned, in a referendum held 
from May 23 through June 10, 2011, 67 percent of those voting in the 
referendum representing 80 percent of the volume of softwood lumber 
represented in the referendum favored implementation of the program.
    Section 1217.81(b) of the Order specifies criteria for subsequent 
referenda. Under the Order, a referendum may be held to ascertain 
whether the program should continue, be amended, or be terminated.
    Section 1217.80 and Sec. Sec.  1217.82 through 1217.88 describe the 
rights of the Secretary; authorize the Secretary to suspend or 
terminate the Order when deemed appropriate; prescribe proceedings 
after termination; address personal liability, separability, and 
amendments; and provide OMB control numbers. These provisions are 
common to all research and promotion program authorized under the 1996 
Act.

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 this rule on small 
entities. Accordingly, AMS has prepared this regulatory flexibility 
analysis.
    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.\13\ This number 
represents separate business entities; one business entity may include 
multiple sawmills. 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 363 domestic manufacturers, or about 61 
percent,\14\ shipped less than 25 million board feet annually.
---------------------------------------------------------------------------

    \13\ Spelter, McKeever and Toth, Profile 2009, p. 15.
    \14\ 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).
---------------------------------------------------------------------------

    Likewise, according to Customs data, it is estimated that, between 
2007 and 2009, there were about 883 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 may be 
considered small entities.
    Regarding value of the commodity, with domestic production 
averaging 24.5 billion board feet (2008 and 2009), and using an average 
price for those years of $237 per thousand board feet,\15\ the average 
annual value for softwood lumber is about $5.8 billion. According to 
Customs data, the average annual value for softwood lumber imports for 
2008 and 2009 is about $3.1 billion.
---------------------------------------------------------------------------

    \15\ Spelter, McKeever and Toth, Profile 2009, p. 2-5.
---------------------------------------------------------------------------

    This rule establishes an industry-funded research, promotion, and 
information program for softwood lumber. Softwood lumber is used in 
products like flooring, siding and framing. The program will be 
financed by an assessment on softwood lumber domestic manufacturers and 
importers and administered by a board of industry members selected by 
the Secretary. The initial assessment rate will be $0.35 per thousand 
board feet shipped within or imported to the United States and may

[[Page 46190]]

be increased to $0.50 per thousand board feet. Entities that 
domestically ship or import less than 15 million board feet are exempt 
along with shipments exported outside of the United States. No entity 
will pay assessments on the first 15 million board feet domestically 
shipped or imported. The purpose of the program is 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. A referendum was held May 23 through June 10, 
2011, among eligible domestic manufacturers and importers to determine 
whether they favor implementation of the program prior to it going into 
effect. Sixty-seven percent of those voting in the referendum, 
representing 80 percent of the volume of softwood lumber represented in 
the referendum, favored implementation of the program. The program is 
authorized under the 1996 Act.
    Regarding the economic impact of the Order on affected entities, 
softwood lumber domestic manufacturers and importers will pay 
assessments to the Board. As previously mentioned, the initial 
assessment rate is $0.35 per thousand board feet shipped within or 
imported to the United States and may be increased to no more than 
$0.50 per thousand board feet.
    The Order provides for an exemption for domestic manufacturers and 
importers who domestically ship or import less than 15 million board 
feet annually. Of the 595 domestic manufacturers, it is estimated that 
about 232, or 39 percent, ship less than 15 million board feet per year 
and will thus be exempt from paying assessments under the Order. Of the 
883 importers, it is estimated that about 780, or 88 percent, import 
less than 15 million board feet per year and will also be exempt from 
paying assessments. Thus, about 363 domestic manufacturers and 103 
importers will pay assessments under the Order. 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, will be paid by importers and 75 percent, or about 
$13 million, will be paid by domestic manufacturers.
    Regarding the impact on the industry as a whole, the program is 
expected to grow markets for softwood lumber by stopping the erosion of 
market share in single family residential market, increasing the market 
share in multi-family residential construction, significantly 
increasing the use of softwood lumber in non-residential markets, and 
rebuilding softwood lumber's share in the outdoor living market. The 
BRC estimates the long-term market growth opportunity in the non-
residential market and the raised wood segment of the residential 
market is between 10 and 12 billion board feet. USDA's Forest Service 
in a 2007 study estimated a more conservative potential growth at 
around 8 billion board feet.\16\ While the benefits of the program are 
difficult to quantify, the benefits are expected to outweigh the 
program's costs.
---------------------------------------------------------------------------

    \16\ Spelter, H.D. McKeever, M. Alderman, Profile 2007: Softwood 
Sawmills in the United States and Canada, USDA, p. 10.
---------------------------------------------------------------------------

    Regarding alternatives, the BRC considered various options in 
assessment rate and exemption levels. The BRC believes that $20 million 
in assessment income is an ideal threshold for an effective program 
that will help to improve the market for softwood lumber. Table 3 below 
shows the range in assessments projected at various industry shipment 
levels per year.

             Table 3--Projected Income Generated at Various Assessment Rates and Shipment Levels \1\
----------------------------------------------------------------------------------------------------------------
                                                      Annual shipment levels  (billion board feet)
  Assessment options  (per thousand   --------------------------------------------------------------------------
             board feet)                          40                       50                       60
----------------------------------------------------------------------------------------------------------------
$0.25................................  $10 million............  $12.5 million..........  $15 million.
$0.35................................  $14 million............  $17.5 million..........  $21 million.
$0.50................................  $20 million............  $25 million............  $30 million.
----------------------------------------------------------------------------------------------------------------
\1\ Assumes no exemption.

    Regarding exemption levels, the BRC explored projected assessment 
income at exemption levels of 15, 20, and 30 million board feet. With a 
15 million board foot exemption, the BRC projected a deduction of 11.3 
percent in assessment income. Table 4 below shows the BRC's projected 
income levels at various assessment options in light of the 15 million 
board foot exemption.

             Table 4--Projected Income Generated at Various Assessment Rates and Shipment Levels \1\
----------------------------------------------------------------------------------------------------------------
                                                      Annual shipment levels  (billion board feet)
  Assessment options  (per thousand   --------------------------------------------------------------------------
             board feet)                          40                       50                       60
----------------------------------------------------------------------------------------------------------------
$0.25................................  $8.9 million...........  $11.1 million..........  $13.3 million.
$0.35................................  $12.4 million..........  $15.5 million..........  $18.9 million.
$0.50................................  $17.7 million..........  $22.2 million..........  $26.6 million
----------------------------------------------------------------------------------------------------------------
\1\ Assumes 15 million board foot exemption.

    Ultimately the BRC concluded that an assessment rate range of $0.35 
to a maximum of $0.50 per thousand board feet with an exemption 
threshold of 15 million board feet was appropriate and would generate 
sufficient income to support an effective promotion program for 
softwood lumber. At an initial assessment rate of $0.35 per thousand

[[Page 46191]]

board feet, the BRC projects assessment income between $12.4 million 
and almost $19 million with shipment levels ranging from 40 to 60 
billion board feet, respectively.
    The industry explored the merits of a voluntary promotion program. 
Over the years, the industry organized various public outreach, 
education and promotion campaigns funded through voluntary assessments. 
Although some were partially effective, none fully accomplished their 
objectives and the gains either disappeared quickly or eroded over 
time.
    This action imposes additional reporting and recordkeeping burden 
on domestic manufacturer and importers of softwood lumber. Domestic 
manufacturers and importers interested in serving on the Board must 
submit a nomination form to the Board indicating their desire to serve 
or nominating another industry member to serve on the Board. Interested 
persons may also submit a background statement outlining their 
qualifications to serve on the Board. Except for the initial Board 
nominations, domestic manufacturers and importers will have the 
opportunity to cast a ballot and vote for candidates to serve on the 
Board. Domestic manufacturer and importer nominees to the Board must 
submit a background form to the Secretary to ensure they are qualified 
to serve on the Board.
    Additionally, domestic manufacturers and importers who domestically 
ship or import less than 15 million board feet annually may submit a 
request to the Board for an exemption from paying assessments on this 
volume. Domestic manufacturers and importers will also be asked to 
submit a report regarding their shipments/imports that will accompany 
their assessments paid to the Board. Domestic manufacturers and 
importers who qualify as 100 percent organic under the NOP and are not 
a split operation may submit a request to the Board for an exemption 
from assessments. Importers may also request a refund of any 
assessments paid to Customs.
    Finally, domestic manufacturers and importer who participated in 
the referendum to vote on whether the Order should become effective 
completed a ballot for submission to the Secretary. These forms were 
submitted to the OMB and approved under OMB Control No. 0581-0265. 
Specific burdens for the forms are 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, as previously mentioned, the Endowment 
conducted a study to assess the feasibility of a softwood lumber 
research and promotion program. According to the BRC, at the beginning 
of the study (early 2008), in-depth interviews were conducted among 
North American softwood lumber industry leaders to explore the level of 
interest in a generic promotion program to help grow the market for 
softwood lumber. The Endowment interviewed 35 companies, which included 
a cross section of various levels of size and ownership types within 
the softwood lumber industry. Of the 35 companies surveyed, 86 percent 
by number representing 54 percent of the volume favored exploring a 
mandatory promotion program for softwood lumber.
    In early 2009, the BRC was formed and began a comprehensive process 
to develop a program. According to the BRC, its membership is diverse 
and represents 44 percent of softwood lumber shipments within the U.S. 
market. Efforts were made to inform various associations throughout the 
country through presentations at their meetings. Articles and notices 
were also published in various newspapers and newsletters about the 
program.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), AMS requested approval of a new information collection and 
recordkeeping requirements for the softwood lumber program.
    Title: Advisory Committee or Research and Promotion Background 
Information.
    OMB Number for background form AD-755: (Approved under OMB No. 
0505-0001).
    Expiration Date of Approval: July 31, 2012.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0581-0265.
    Expiration Date of Approval: 3 years from approval date.
    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 new, national research and promotion program for 
the softwood lumber industry. The program will be financed by an 
assessment on softwood lumber domestic manufacturers and importers and 
administered by a board of industry members selected by the Secretary. 
The program provides for an exemption for the first 15 million board 
feet of softwood lumber shipped by domestic manufacturers within the 
United States or imported into the United States during the year. A 
referendum was held May 23 through June 10, 2011, among eligible 
domestic manufacturers and importers to determine whether they favor 
implementation of the program prior to it going into effect. Sixty-
seven percent of those voting in the referendum, representing 80 
percent of the volume represented in the referendum, favored 
implementation of the program. The purpose of the program is to help 
build the market for softwood lumber.
    In summary, the information collection requirements under the 
program concern Board nominations, the collection of assessments, and 
referenda. For Board nominations, domestic manufacturers and importers 
interested in serving on the Board must submit a ``Nomination Form'' to 
the Board indicating their desire to serve or to nominate another 
industry member to serve on the Board. Interested persons may also 
submit a background statement outlining qualifications to serve on the 
Board. Except for the initial Board nominations, domestic manufacturers 
and importers will have the opportunity to submit a ``Nomination 
Ballot'' to the Board where they will vote for candidates to serve on 
the Board. Nominees must also submit a background information form, 
``AD-755,'' to the Secretary to ensure they are qualified to serve on 
the Board.
    Regarding assessments, domestic manufacturers and importers who 
ship or import less than 15 million board feet annually may submit a 
request, ``Application for Exemption from Assessments,'' to the Board 
for an exemption from paying assessments. Domestic manufacturers and 
importers must submit a ``Shipment/Import Report'' that will accompany 
their assessments paid to the Board and report the quantity of softwood 
lumber shipped domestically or imported during the applicable period, 
the quantity exported from the United States, the quantity for which 
assessments were paid, and the country

[[Page 46192]]

of export (for imports). Domestic manufacturers who ship less than 15 
million board feet annually and are exempt from paying assessments do 
not have to submit this report. Additionally, only importers who pay 
their assessments directly to the Board must submit this report. As 
previously mentioned, the majority of importer assessments will be 
collected by Customs. Customs will remit the funds to the Board and the 
other information will be available from Customs (i.e., country of 
export, quantity of softwood lumber imported). Finally, domestic 
manufacturers and importers who qualify as 100 percent organic under 
the NOP and are not a split operation may submit an ``Organic Exemption 
Form'' to the Board and request an exemption from assessments. 
Importers may also request a refund of any assessments paid to Customs.
    There will also be an additional burden on domestic manufacturers 
and importers voting in referenda. The referendum ballot, which 
represents the information collection requirement relating to 
referenda, was addressed in a final rule on referendum procedures which 
was published in the Federal Register on April 22, 2011 (76 FR 22752).
    Information collection requirements that are included in this rule 
include:

(1) Nomination Form

    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: 50.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 12.5 hours.

(2) Background Statement

    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: 50.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 12.5 hours.

(3) Nomination 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: 300.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 75 hours.

(4) Background Information Form AD-755 (OMB Form No. 0505-0001)

    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hour per response for each 
Board nominee.
    Respondents: Domestic manufacturers and importers.
    Estimated number of Respondents: 13 (38 for initial nominations to 
the Board, 0 for the second year, and up to 13 annually thereafter).
    Estimated number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 19 hours for the 
initial nominations to the Board, 0 hours for the second year of 
operation, and up to 6.5 hours annually thereafter.

(5) Application for Exemption From Assessments

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hour per domestic manufacturer 
or importer reporting on softwood lumber shipped domestically or 
imported. Upon approval of an application, domestic manufacturers and 
importers will receive exemption certification.
    Respondents: Domestic manufacturers (232) and importers (780) who 
ship domestically or import less than 15 million board feet of softwood 
lumber annually.
    Estimated number of Respondents: 1,012.
    Estimated number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 253 hours.

(6) Shipment/Import Report

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hour per domestic manufacturer 
or importer.
    Respondents: Domestic manufacturers who ship 15 million board feet 
or more annually (363) and importers who remit their assessments 
directly to the Board (assume 5 percent of 103 importers, or 5).
    Estimated number of Respondents: 368.
    Estimated number of Responses per Respondent: 4.
    Estimated Total Annual Burden on Respondents: 736 hours.

(7) Organic Exemption Form

    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per exemption form.
    Respondents: Organic domestic manufacturers and importers.
    Estimated Number of Respondents: 1.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 0.5 hour.

(8) Refund of Assessments Paid on Organic Softwood Lumber

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hour.
    Respondents: Organic importers.
    Estimated Number of Respondents: 1.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 0.25 hour.

(9) A Requirement to Maintain Records Sufficient To Verify Reports 
Submitted Under the Order

    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.5 hours per record keeper 
maintaining such records.
    Recordkeepers: Domestic manufacturers (595) and importers (883).
    Estimated number of recordkeepers: 1,478.
    Estimated total recordkeeping hours: 739 hours.
    As noted above, under the program, domestic manufacturers and 
importers will be required to pay assessments and file reports with and 
submit assessments to the Board (importers through Customs). While the 
Order imposes certain recordkeeping requirements on domestic 
manufacturers and importers, information required under the Order can 
be compiled from records currently maintained. Such records shall be 
retained for at least two years beyond the fiscal year of their 
applicability.
    An estimated 1,478 respondents will provide information to the 
Board (595 domestic manufacturers and 883 importers). The estimated 
cost of providing the information to the Board by respondents is 
$24,387. This total has been estimated by multiplying 739 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 Order's provisions have been carefully reviewed, and every 
effort has

[[Page 46193]]

been made to minimize any unnecessary recordkeeping costs or 
requirements, including efforts to utilize information already 
submitted under other programs administered by USDA and other state 
programs.
    The forms require the minimum information necessary to effectively 
carry out the requirements of the program, and their use is necessary 
to fulfill the intent of the 1996 Act. Such information can be supplied 
without data processing equipment or outside technical expertise. In 
addition, there are no additional training requirements for individuals 
filling out reports and remitting assessments to the Board. The forms 
are simple, easy to understand, and place as small a burden as possible 
on the person required to file the information.
    Collecting information quarterly coincides with normal industry 
business practices. The timing and frequency of collecting information 
are intended to meet the needs of the industry while minimizing the 
amount of work necessary to fill out the required reports. The 
requirement to keep records for two years is consistent with normal 
industry practices. In addition, the information to be included on 
these forms is not available from other sources because such 
information relates specifically to individual domestic manufacturers 
and importers who are subject to the provisions of the 1996 Act. 
Therefore, there is no practical method for collecting the required 
information without the use of these forms.
    In the October 1, 2010, proposed rule, comments were also invited 
on the information collection requirements prescribed in the Paperwork 
Reduction Act section of this rule. Specifically, comments were 
solicited on: (a) Whether the collection of information is necessary 
for the proper performance of functions of the Order and USDA's 
oversight of the Order, including whether the information would have 
practical utility; (b) the accuracy of USDA's estimate of the burden of 
the 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 will 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. No comments were received regarding 
information collection.
    As previously mentioned, the Department conducted a referendum 
among domestic manufacturers and importers of softwood lumber from May 
23 through June 10, 2011, to determine whether the program would become 
effective. The representative period for establishing voter eligibility 
was January 1 through December 31, 2010. Domestic manufacturers and 
importers currently engaged in the business who manufactured and 
shipped within the United States/or imported to the United States 15 
million board feet or more of softwood lumber during the representative 
period were eligible to vote. Sixty-seven percent of those voting in 
the referendum representing 80 percent of the volume of softwood lumber 
represented in the referendum favored implementation of the program.
    After consideration of all relevant material presented, including 
the initial proposal, comments received, and the referendum results, it 
is found that the Softwood Lumber Research, Promotion, Consumer 
Education and Industry Information Order is consistent with and 
effectuates the purposes of the 1996 Act.
    Pursuant to 5 U.S.C. 553, it is found that good cause exists for 
not postponing the effective date of this rule until 30 days after 
publication in the Federal Register because this rule was approved in a 
referendum of domestic manufacturers and importers and needs to be in 
effect as soon as possible so that USDA can conduct nominations to seat 
the first Board prior to January 1, 2012, the date when the collection 
of assessments begins on the program.

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, Title 7, Chapter XI of 
the Code of Federal Regulations is amended by adding part 1217 to read 
as follows:

PART 1217--SOFTWOOD LUMBER RESEARCH, PROMOTION, CONSUMER EDUCATION 
AND INDUSTRY INFORMATION ORDER

Subpart A--Softwood Lumber Research, Promotion, Consumer Education and 
Industry Information Order

Definitions

Sec.
1217.1 Act.
1217.2 Blue Ribbon Commission or BRC.
1217.3 Board or Softwood Lumber Board.
1217.4 Board foot.
1217.5 Conflict of interest.
1217.6 Customs or CBP.
1217.7 Department or USDA.
1217.8 Domestic manufacturer.
1217.9 Export.
1217.10 Fiscal period or year.
1217.11 Importer.
1217.12 Information.
1217.13 Manufacture.
1217.14 Manufacturer for the U.S. market.
1217.15 Marketing.
1217.16 Nominal size.
1217.17 Order.
1217.18 Part and subpart.
1217.19 Person.
1217.20 Planing.
1217.21 Programs, plans and projects.
1217.22 Promotion.
1217.23 Research.
1217.24 Secretary.
1217.25 Softwood.
1217.26 Softwood lumber.
1217.27 State.
1217.28 Suspend.
1217.29 Terminate.
1217.30 United States.

Softwood Lumber Board

1217.40 Establishment and membership.
1217.41 Nominations and appointments.
1217.42 Term of office.
1217.43 Removal and vacancies.
1217.44 Procedure.
1217.45 Reimbursement and attendance.
1217.46 Powers and duties.
1217.47 Prohibited activities.

Expenses and Assessments

1217.50 Budget and expenses.
1217.51 Financial statements.
1217.52 Assessments.
1217.53 Exemption from assessment.

Promotion, Research and Information

1217.60 Programs, plans and projects.
1217.61 Independent evaluation.
1217.62 Patents, copyrights, inventions, product formulations, and 
publications.

Reports, Books, and Records

1217.70 Reports.
1217.71 Books and records.
1217.72 Confidential treatment.

Miscellaneous

1217.80 Right of the Secretary.
1217.81 Referenda.
1217.82 Suspension or termination.
1217.83 Proceedings after termination.
1217.84 Effect of termination or amendment.
1217.85 Personal liability.

[[Page 46194]]

1217.86 Separability.
1217.87 Amendments.
1217.88 OMB control numbers.
Subpart B--[Reserved]

    Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.

Subpart A--Softwood Lumber Research, Promotion, Consumer Education, 
and Industry Information Order

Definitions


Sec.  1217.1  Act.

    Act means the Commodity Promotion, Research, and Information Act of 
1996 (7 U.S.C. 7411-7425), and any amendments thereto.


Sec.  1217.2  Blue Ribbon Commission or BRC.

    Blue Ribbon Commission or BRC means the 21-member committee 
representing businesses that manufacture softwood lumber in the United 
States or import softwood lumber to the United States formed to pursue 
an industry research, promotion, and information program.


Sec.  1217.3  Board or Softwood Lumber Board.

    Board or Softwood Lumber Board means the administrative body 
established pursuant to Sec.  1217.40, or such other name as 
recommended by the Board and approved by the Department.


Sec.  1217.4  Board foot.

    Board foot or BF means a unit of measurement of softwood lumber 
represented by a board 12-inches long, 12-inches wide, and 1-inch thick 
or its cubic equivalent. A board foot calculation for softwood lumber 1 
inch or more in thickness is based on its nominal thickness and width 
and the actual length. Softwood lumber with a nominal thickness of less 
than 1 inch is calculated as 1 inch.


Sec.  1217.5  Conflict of interest.

    Conflict of interest means a situation in which a member or 
employee of the Board has a direct or indirect financial interest in a 
person who performs a service for, or enters into a contract with, the 
Board for anything of economic value.


Sec.  1217.6  Customs or CBP.

    Customs or CBP means Customs and Border Protection, an agency of 
the United States Department of Homeland Security.


Sec.  1217.7  Department or USDA.

    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.


Sec.  1217.8  Domestic manufacturer.

    Domestic manufacturer means any person who is a first handler and 
is engaged in the manufacturing, sale and shipment of softwood lumber 
in the United States during a fiscal period and who owns, or shares in 
the ownership and risk of loss of manufacturing of softwood lumber or a 
person who is engaged in the business of manufacturing, or causes to be 
manufactured, sold and shipped such softwood lumber in the United 
States beyond personal use. This term does not include any person who 
re-manufactures softwood lumber that has already been subject to 
assessment under this Order.


Sec.  1217.9  Export.

    Export means to manufacture and ship softwood lumber from within 
the United States to locations outside of the United States.


Sec.  1217.10  Fiscal period or year.

    Fiscal period or year means a calendar year from January 1 through 
December 31, or such other period as recommended by the Board and 
approved by the Secretary.


Sec.  1217.11  Importer.

    Importer means any person who imports softwood lumber from outside 
the United States for sale in the United States as a principal or as an 
agent, broker, or consignee of any person who manufactures softwood 
lumber outside the United States for sale in the United States, and who 
is listed in the import records as the importer of record for such 
softwood lumber.


Sec.  1217.12  Information.

    Information means activities or programs designed to disseminate 
the results of research, new and existing marketing programs, new and 
existing marketing strategies, new and existing uses and applications, 
and to enhance the image of softwood lumber and the forests from which 
it comes. These include:
    (a) Consumer education, which means any action taken to provide 
information to, and broaden the understanding of, the general public 
regarding softwood lumber; and
    (b) Industry information, which means information and programs that 
would enhance the image of the softwood lumber industry.


Sec.  1217.13  Manufacture.

    Manufacture means the process of transforming softwood logs into 
softwood lumber.


Sec.  1217.14  Manufacturer for the U.S. market.

    Manufacturer for the U.S. market means domestic manufacturers and 
importers of softwood lumber as defined in this Order.


Sec.  1217.15  Marketing.

    Marketing means the sale or other disposition of softwood lumber in 
interstate, foreign, or intrastate commerce.


Sec.  1217.16  Nominal size.

    Nominal size means the size by which softwood lumber is known and 
sold in the marketplace that differs from actual size and is based on 
the thickness and width of a board when it is first cut from a log, or 
rough cut, prior to drying and planing.


Sec.  1217.17  Order.

    Order means an order issued by the Secretary under section 514 of 
the Act that provides for a program of generic promotion, research, and 
information regarding agricultural commodities authorized under the 
Act.


Sec.  1217.18  Part and subpart.

    Part means the Softwood Lumber Research, Promotion, Consumer 
Education, and Industry Information Order and all rules, regulations, 
and supplemental orders issued pursuant to the Act and the Order. The 
Order shall be a subpart of such part.


Sec.  1217.19  Person.

    Person means any individual, group of individuals, partnership, 
company, corporation, association, affiliate, cooperative, or any other 
legal entity.


Sec.  1217.20  Planing.

    Planing means the act of smoothing the surface of a board to make 
the wood a uniform size.


Sec.  1217.21  Programs, plans, and projects.

    Programs, plans and projects mean those research, promotion and 
information programs, plans, or projects established pursuant to this 
Order.


Sec.  1217.22  Promotion.

    Promotion means any action taken, including paid advertising, 
public relations and other communications, and promoting the results of 
research, that presents a favorable image of softwood lumber to the 
public and to any and all consumers and those who influence consumption 
of softwood

[[Page 46195]]

lumber with the intent of improving the perception, markets and 
competitive position of softwood lumber and stimulating sales of 
softwood lumber.


Sec.  1217.23  Research.

    Research means any activity that advances the position of softwood 
lumber in the marketplace that includes any type of test, study, or 
analysis designed to advance the image, desirability, use, 
marketability, sales, product development, or quality of softwood 
lumber; new applications; improving softwood lumber's position in 
building and fire codes; softwood lumber product testing and safety; 
and evaluating the effectiveness of market development and promotion 
efforts including life cycle studies, forestry, sustainable forest 
management, environmental preferrability, competitiveness, efficiency, 
pest and disease control, water quality and other management aspects of 
forestry and the forests from which softwood lumber originates.


Sec.  1217.24  Secretary.

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


Sec.  1217.25  Softwood.

    Softwood means one of the botanical groups of trees that have 
needle-like or scale-like leaves, or conifers.


Sec.  1217.26  Softwood lumber.

    Softwood lumber means and includes softwood lumber and products 
manufactured from softwood as described in section 804(a) of Title VIII 
of the Tariff Act of 1930, as amended (19 U.S.C. 1202-1683g), and as 
assessed under Sec.  1217.52.


Sec.  1217.27  State.

    State means any of the several 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1217.28  Suspend.

    Suspend means to issue a rule under section 553 of title 5 U.S.C. 
to temporarily prevent the operation of an order or part thereof during 
a particular period of time specified in the rule.


Sec.  1217.29  Terminate.

    Terminate means to issue a rule under section 553 of title 5 U.S.C. 
to cancel permanently the operation of an order or part thereof 
beginning on a date certain specified in the rule.


Sec.  1217.30  United States.

    United States means collectively the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico and the territories and 
possessions of the United States.

Softwood Lumber Board


Sec.  1217.40  Establishment and membership.

    (a) Establishment of the Board. There is hereby established a 
Softwood Lumber Board to administer the terms and provisions of this 
Order and promote the use of softwood lumber. The Board shall be 
composed of manufacturers for the U.S. market who manufacture and 
domestically ship or import 15 million board feet or more of softwood 
lumber in the United States during a fiscal period. Seats on the Board 
shall be apportioned based on the volume of softwood lumber 
manufactured and shipped within the United States by domestic 
manufacturers and the volume of softwood lumber imported into the 
United States.
    (b) The Board shall be composed of 18 or 19 members, depending upon 
whether an additional importer member is appointed to the Board, 
pursuant to paragraph (b)(2)(iii) of this section. The Board shall be 
established as follows:
    (1) Domestic manufacturers. Twelve members shall be domestic 
manufacturers from the following three regions:
    (i) Six members shall be from the U.S. South Region, which consists 
of the states of Alabama, Arkansas, Florida, Georgia, Louisiana, 
Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and 
Texas;
    (ii) Five members shall be from the U.S. West Region, which 
consists of the states of Alaska, Arizona, California, Colorado, 
Hawaii, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South 
Dakota, Utah, Washington, and Wyoming; and
    (iii) One member shall be from the Northeast and lake States 
Region, which consists of the states of Connecticut, Delaware, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, 
Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, 
New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Virginia, 
Vermont, West Virginia, Wisconsin, and all other parts of the United 
States not listed in paragraphs (b)(1)(i), (b)(1)(ii), or (b)(1)(iii) 
of this section.
    (2) Importers. Six members shall be importers who represent the 
following regions and import the majority of their softwood lumber from 
the respective region:
    (i) Four members shall import softwood lumber from the Canadian 
West Region, which consists of the provinces of British Columbia and 
Alberta; and
    (ii) Two members shall import softwood lumber from the Canadian 
East Region, which consists of the Canadian territories and all other 
Canadian provinces not listed in paragraph (b)(2)(i) of this section 
that import softwood lumber into the United States.
    (iii) If the Secretary, at the request of the Board or on his or 
her own, determines that it would be consistent with the provisions of 
the Act, the Secretary may appoint an additional importer to the Board 
to represent a region not otherwise specified in paragraphs (b)(2)(i) 
and (ii) of this section. Nominees would be solicited as prescribed in 
Sec.  1217.41(b), or in the case of the Secretary acting on his or her 
own will be handled by the Secretary, and all the names of eligible 
candidates would be submitted to the Secretary for consideration. Such 
nominees must certify that the majority of their softwood lumber is 
imported from such region. In addition, representation for the region 
not otherwise specified in paragraphs (b)(2)(i) and (ii) of this 
section would be subject to the Board review and reapportionment 
provided for in paragraph (c) of this section.
    (c) In each five-year period, but not more frequently than once in 
each three-year period, the Board shall:
    (1) Review, based on a three-year average, the geographical 
distribution of the volume of softwood lumber manufactured and shipped 
within the United States by domestic manufacturers and the volume of 
softwood lumber imported into the United States; and
    (2) If warranted, recommend to the Secretary the reapportionment of 
the Board membership to reflect changes in the geographical 
distribution of the volume of softwood lumber manufactured and shipped 
within the United States by domestic manufacturers and the volume of 
softwood lumber imported into the United States. The destination of 
volumes between regions also shall be considered. The number of Board 
members may also be changed. Any changes in Board composition shall be 
implemented by the Secretary through rulemaking.


Sec.  1217.41  Nominations and appointments.

    (a) Initial nominations will be submitted to the Secretary by the 
Blue

[[Page 46196]]

Ribbon Commission. Before considering any nominations, the BRC shall 
publicize the nomination process, using trade press or other means it 
deems appropriate, and shall outreach to all known manufacturers for 
the U.S. market who domestically manufacture and/or import 15 million 
board feet or more of softwood lumber per fiscal year in order to 
generate nominees that reflect the different operations within the 
softwood lumber industry. The BRC may use regional caucuses, mail or 
other methods to elicit potential nominees. The BRC shall submit the 
nominations to the Secretary and recommend two nominees for each Board 
position specified in paragraphs (b)(1), (b)(2)(i) and (b)(2)(ii) of 
Sec.  1217.40. All nominees solicited pursuant to Sec.  
1217.40(b)(2)(iii) shall be submitted to the Secretary through the BRC. 
From the nominations submitted by the BRC, the Secretary shall select 
the members of the Board.
    (b) Subsequent nominations shall be conducted as follows:
    (1) The Board shall outreach to all segments of the softwood lumber 
industry. Softwood lumber domestic manufacturers and importers may 
submit nominations to the Board. Subsequent nominees must domestically 
manufacture and/or import 15 million board feet or more of softwood 
lumber per fiscal year;
    (2) Domestic manufacturers and importer nominees may provide the 
Board a short background statement outlining their qualifications to 
serve on the Board;
    (3) Nominees that are both a domestic manufacturer and an importer 
may seek nomination to the Board and vote in the nomination process as 
either a domestic manufacturer or an importer, but not both: Provided, 
That, such nominees who domestically manufacture the majority of their 
softwood lumber may seek nomination and vote as a domestic 
manufacturer, and such nominees who import the majority of their 
softwood lumber may seek nomination and vote as an importer. Such 
nominees must domestically manufacture and import 15 million board feet 
or more of softwood lumber per fiscal year;
    (4) Domestic manufacturers who manufacture softwood lumber in more 
than one region may seek nomination only in the region in which they 
manufacture the majority of their softwood lumber. The names of 
domestic manufacturer nominees shall be placed on a ballot by region. 
The ballots along with the background statements shall be mailed to 
domestic manufacturers in each respective region for a vote. Domestic 
manufacturers who manufacture softwood lumber in more than one region 
may only vote in the region in which they manufacture the majority of 
their softwood lumber. The votes shall be tabulated for each region 
with the nominee receiving the highest number of votes at the top of 
the list in descending order by vote. The top two candidates for each 
position shall be submitted to the Secretary;
    (5) Importer nominees shall certify that the majority of their 
softwood lumber is imported from the respective region for which they 
are seeking to represent on the Board and shall provide documentation 
to verify this if requested by the Board. The names of importer 
nominees shall be placed on a ballot by region. The ballots along with 
the background statements shall be mailed to importers in each 
respective region for a vote. Importers who import softwood lumber from 
more than one region may only vote in the region from which they import 
the majority of their softwood lumber. The votes shall be tabulated for 
each region with the nominee receiving the highest number of votes at 
the top of the list in descending order by vote. The top two candidates 
for each position shall be submitted to the Secretary.
    (6) The Board must submit nominations to the Secretary at least six 
months before the new Board term begins. From the nominations submitted 
by the Board, the Secretary shall select the members of the Board;
    (7) No two members shall be employed by a single corporation, 
company, partnership, or any other legal entity; and
    (8) The Board may recommend to the Secretary modifications to its 
nomination procedures as it deems appropriate. Any such modifications 
shall be implemented through rulemaking by the Secretary.


Sec.  1217.42  Term of office.

    (a) With the exception of the initial Board, each Board member will 
serve a three-year term or until the Secretary selects his or her 
successor. Each term of office shall begin on January 1 and end on 
December 31. No member may serve more than two consecutive terms, 
excluding any term of office less than three years.
    (b) For the initial board, the terms of Board members shall be 
staggered for two, three, and four years. Determination of which of the 
initial members shall serve a term of two, three, or four years shall 
be recommended to the Secretary by the Blue Ribbon Commission.


Sec.  1217.43  Removal and vacancies.

    (a) In the event that any member of the Board ceases to work for or 
be affiliated with a domestic manufacturer or importer or ceases to do 
business in the region he or she represents, such position shall become 
vacant.
    (b) The Board may recommend to the Secretary that a member be 
removed from office if the member consistently refuses to perform his 
or her duties or engages in dishonest acts or willful misconduct. The 
Secretary may remove the member if he or she finds that the Board's 
recommendation shows adequate cause. Further, without recommendation of 
the Board, a member may be removed by the Secretary upon showing of 
adequate cause, including the failure by a member to submit reports or 
remit assessments required under this part, if the Secretary determines 
that such member's continued service would be detrimental to the 
achievement of the purposes of the Act.
    (c) If a position becomes vacant, nominations to fill the vacancy 
will be conducted using the nominations process set forth in this 
Order. A vacancy will not be required to be filled if the unexpired 
term is less than six months.


Sec.  1217.44  Procedure.

    (a) A majority of the Board members (10) will constitute a quorum 
so long as at least three of the members present are importer members 
and six of the members present are domestic manufacturers. If 
participation by telephone or other means is permitted, members 
participating by such means shall count as present in determining 
quorum or other voting requirements set forth in this section.
    (b) All votes at meetings of the Board and executive committee will 
be cast in person or by electronic voting or other means as the Board 
and Secretary deem appropriate to allow members participating by 
telephone or other electronic means to cast votes. Voting by proxy will 
not be allowed.
    (c) Each member of the Board will be entitled to one vote on any 
matter put to the Board and the motion will carry if supported by 10 
Board members, except for recommendations to change the assessment rate 
or to adopt a budget, both of which require affirmation by at least 
two-thirds (12 members for an 18 member Board and 13 members for a 19 
member Board) of the Board members. If a Board has vacant positions, 
recommendations to change the assessment rate or to adopt a budget must 
pass by an affirmative vote of at

[[Page 46197]]

least two-thirds of the Board members, exclusive of the vacant seats.
    (d) The Board must give members and the Secretary timely notice of 
all Board, executive and committee meetings.
    (e) In lieu of voting at a properly convened meeting, and when, in 
the opinion of the Board's chairperson, such action is considered 
necessary, the Board may take action by mail, telephone, electronic 
mail, facsimile, or any other means of communication. Any action taken 
under this procedure is valid only if:
    (1) All members and the Secretary are notified and the members are 
provided the opportunity to vote;
    (2) Ten (10) Board members vote in favor of the action (unless two-
thirds vote of the Board members is required under the Order); and
    (3) All votes are promptly confirmed in writing and recorded in the 
Board minutes.


Sec.  1217.45  Reimbursement and attendance.

    Board members will serve without compensation. Board members will 
be reimbursed for reasonable travel expenses, as approved by the Board, 
which they incur when performing Board business.


Sec.  1217.46  Powers and duties.

    The Board shall have the following powers and duties:
    (a) To administer this Order in accordance with its terms and 
conditions and to collect assessments;
    (b) To develop and recommend to the Secretary for approval such 
bylaws as may be necessary for the functioning of the Board and such 
rules, regulations as may be necessary to administer the Order, 
including activities authorized to be carried out under the Order;
    (c) To meet, organize, and select from among its members a 
chairperson and, such other officers as may be necessary;
    (d) To create an executive committee of five members of the Board 
comprised of the chairperson and four other members elected by the 
Board. The duties of the executive committee shall be specified in 
bylaws that are recommended by the Board and approved by the Secretary;
    (e) To create other committees or subcommittees, which may include 
individuals other than Board members, as the Board deems necessary from 
its membership and other representatives it deems appropriate;
    (f) To employ or contract with such persons, other than the 
members, as it may deem necessary to assist the Board in carrying out 
its duties, and to determine the compensation and define the duties of 
each;
    (g) To notify manufacturers for the U.S. market of all Board 
meetings through press releases or other means and to give the 
Secretary the same notice of Board meetings, executive committee, and 
subcommittee meetings that is given to members in order that the 
Secretary's representative(s) may attend such meetings, and to keep and 
report minutes of each meeting to the Secretary;
    (h) To develop and administer programs, plans, and projects and 
enter into contracts or agreements, which must be approved by the 
Secretary before becoming effective, for promotion, research, and 
information, including consumer and industry information, research and 
advertising designed to strengthen the softwood lumber industry's 
position in the marketplace and to maintain, develop, and expand 
markets for softwood lumber. The payment of costs for such activities 
shall be with funds collected pursuant to the Order, including funds 
collected pursuant to Sec.  1217.50(f). Each contract or agreement 
shall provide that:
    (1) The contractor or agreeing party shall develop and submit to 
the Board a program, plan, or project together with a budget that 
specifies the cost to be incurred to carry out the activity;
    (2) The contractor or agreeing party shall keep accurate records of 
all of its transactions and make periodic reports to the Board of 
activities conducted, submit accounting for funds received and 
expended, and make such other reports as the Secretary or Board may 
require;
    (3) The Secretary may audit the records of the contracting or 
agreeing party periodically; and
    (4) Any subcontractor who enters into a contract with a Board 
contractor and who receives or otherwise uses funds allocated by the 
Board shall be subject to the same provisions as the contractor.
    (i) To prepare and submit to the Secretary for approval 60 calendar 
days in advance of the beginning of a fiscal period, rates of 
assessment and a budget of the anticipated expenses to be incurred in 
the administration of the Order, including the probable cost of each 
promotion, research, and information activity proposed to be developed 
or carried out by the Board;
    (j) To borrow funds necessary for startup expenses of the Order;
    (k) To invest assessments collected and other funds received 
pursuant to the Order and use earnings from invested assessments to pay 
for activities carried out pursuant to the Order;
    (l) To recommend changes to the assessment rates as provided in 
this part;
    (m) To cause its books to be audited by a certified public 
accountant at the end of each fiscal period and at such other times as 
the Secretary may request, and to submit a report of each audit 
directly to the Secretary;
    (n) To periodically prepare and make public and to make available 
to manufacturers for the U.S. market reports of its activities and, at 
least once each fiscal period, to make public an accounting of funds 
received and expended;
    (o) To maintain minutes, books, and records and prepare and submit 
to the Secretary such reports from time to time as may be required for 
appropriate accounting with respect to the receipt and disbursement of 
funds entrusted to it, and to submit to the Secretary such information 
pertaining to this part or subpart as he or she may request;
    (p) To act as an intermediary between the Secretary and any 
manufacturer for the U.S. market;
    (q) To receive, investigate and report to the Secretary complaints 
of violations of the Order; and
    (r) To develop and recommend such rules and regulations to the 
Secretary for approval as may be necessary for the development and 
execution of plans or activities to effectuate the purposes of the Act.


Sec.  1217.47  Prohibited activities.

    The Board may not engage in, and shall prohibit the employees and 
agents of the Board from engaging in:
    (a) Any action that would be a conflict of interest;
    (b) Using funds collected by the Board under the Order to undertake 
any action for the purpose of influencing legislation or governmental 
action or policy, by local, state, national, and foreign governments or 
subdivision thereof, other than recommending to the Secretary 
amendments to the Order; and
    (c) No program, plan or project including advertising shall be 
false or misleading or disparaging to another agricultural commodity. 
Softwood lumber of all geographic origins shall be treated equally.

Expenses and Assessments


Sec.  1217.50  Budget and expenses.

    (a) At least 60 calendar days prior to the beginning of each fiscal 
period, and as may be necessary thereafter, the Board shall prepare and 
submit to the Department a budget for the fiscal period covering its 
anticipated expenses and disbursements in administering this part. The 
budget for research, promotion

[[Page 46198]]

or information may not be implemented prior to approval by the 
Secretary. Each such budget shall include:
    (1) A statement of objectives and strategy for each program, plan, 
or project;
    (2) A summary of anticipated revenue, with comparative data for at 
least one preceding fiscal year, except for the initial budget;
    (3) A summary of proposed expenditures for each program, plan, or 
project; and
    (4) Staff and administrative expense breakdowns, with comparative 
data for at least one preceding fiscal year, except for the initial 
budget.
    (b) Each budget shall provide adequate funds to defray its proposed 
expenditures and to provide for a reserve as set forth in this Order.
    (c) Subject to this section, any amendment or addition to an 
approved budget must be approved by the Department, including shifting 
funds from one program, plan, or project to another.
    (d) The Board is authorized to incur such expenses, including 
provision for a reserve, as the Secretary finds reasonable and likely 
to be incurred by the Board for its maintenance and functioning, and to 
enable it to exercise its powers and perform its duties in accordance 
with the provisions of this subpart. Such expenses shall be paid from 
funds received by the Board.
    (e) With approval of the Department, the Board may borrow money for 
the payment of startup expenses subject to the same fiscal, budget, and 
audit controls as other funds of the Board. Any funds borrowed shall be 
expended only for startup costs and capital outlays and are limited to 
the first year of operation by the Board.
    (f) The Board may accept voluntary contributions, and is encouraged 
to seek other appropriate funding sources to carry out activities 
authorized by the Order. Such contributions shall be free from any 
encumbrances by the donor and the Board shall retain complete control 
of their use. The Board may receive funds from outside sources (i.e., 
Federal or State grants, Foreign Agricultural Service funds), with 
approval of the Secretary, for specific authorized projects.
    (g) The Board shall reimburse the Secretary for all expenses 
incurred by the Secretary in the implementation, administration, 
enforcement and supervision of the Order, including all referendum 
costs in connection with the Order.
    (h) For fiscal years beginning two years after the date the of the 
first Board meeting, the Board may not expend for administration, 
maintenance, and the functioning of the Board an amount that is greater 
than 8 percent of the assessment and other income received by and 
available to the Board for the fiscal year. For purposes of this 
limitation, reimbursements to the Secretary shall not be considered 
administrative costs.
    (i) The Board may establish an operating monetary reserve and may 
carry over to subsequent fiscal periods excess funds in any reserve so 
established: Provided, That, the funds in the reserve do not exceed one 
fiscal period's budget of expenses. Subject to approval by the 
Secretary, such reserve funds may be used to defray any expenses 
authorized under this subpart.
    (j) Pending disbursement of assessments and all other revenue under 
a budget approved by the Secretary, the Board may invest assessments 
and all other revenues collected under this part in:
    (1) Obligations of the United States or any agency of the United 
States;
    (2) General obligations of any State or any political subdivision 
of a State;
    (3) Interest bearing accounts or certificates of deposit of 
financial institutions that are members of the Federal Reserve System;
    (4) Obligations fully guaranteed as to principal interest by the 
United States; or
    (5) Other investments as authorized by the Secretary.


Sec.  1217.51  Financial statements.

    (a) The Board shall prepare and submit financial statements to the 
Department on a quarterly basis, or at any other time as requested by 
the Secretary. Each such financial statement shall include, but not be 
limited to, a balance sheet, income statement, and expense budget. The 
expense budget shall show expenditures during the time period covered 
by the report, year-to-date expenditures, and the unexpended budget.
    (b) Each financial statement shall be submitted to the Department 
within 30 calendar days after the end of the time period to which it 
applies.
    (c) The Board shall submit to the Department an annual financial 
statement within 90 calendar days after the end of the fiscal year to 
which it applies.


Sec.  1217.52  Assessments.

    (a) The Board's programs and expenses shall be paid by assessments 
on manufacturers for the U.S. market, other income of the Board, and 
other funds available to the Board.
    (b) Subject to the exemptions specified in Sec.  1217.53, each 
manufacturer for the U.S. market shall pay an assessment to the Board 
at the rate of $0.35 per thousand board feet of softwood lumber except 
that no person shall pay an assessment on the first 15 million board 
feet of softwood lumber otherwise subject to assessment in a fiscal 
year. Domestic manufacturers shall pay assessments based on the volume 
of softwood lumber shipped within the United States and importers shall 
pay assessments based on the volume of softwood lumber imported to the 
United States.
    (c) At least 24 months after the Order becomes effective and 
periodically thereafter, the Board shall review and may recommend to 
the Secretary, upon an affirmative vote by at least two-thirds of the 
Board members, a change in the assessment rate. In no event may the 
rate be less than $0.35 per thousand board feet nor more than $0.50 per 
thousand board feet. A change in the assessment rate is subject to 
rulemaking by the Secretary.
    (d) Domestic manufacturers shall remit to the Board the amount due 
no later than the 30th calendar day of the month following the end of 
the quarter in which the softwood lumber was shipped.
    (e) Domestic product that cannot be categorized in the Harmomized 
Tariff Schedule of the United States (HTSUS) numbers listed in 
paragraph (h) of this section if it were an import is not covered under 
this Order.
    (f) Softwood lumber originating in the United States that is 
exported to another country and shipped back to the United States is 
covered under this Order, provided that it can be categorized in the 
HTSUS numbers listed in paragraph (h) of this section.
    (g) Each importer of softwood lumber shall pay through Customs to 
the Board an assessment on softwood lumber imported into the United 
States as described in section 804(a) of Title VIII of the Tariff Act 
of 1930, as amended (19 U.S.C. 1202-1683g), provided that it can be 
categorized in the HTSUS numbers listed in paragraph (h) of this 
section.
    (h) The HTSUS categories and assessment rates on imported softwood 
lumber are listed in the table below. A factor shall be used to 
determine the equivalent volume of softwood lumber in thousand board 
feet. The factor used to convert one cubic meter to one thousand board 
feet is 0.423776001. Accordingly, the assessment rate per cubic meter 
is as follows.

[[Page 46199]]



------------------------------------------------------------------------
                                                           Assessment $/
                     Softwood lumber                        cubic meter
------------------------------------------------------------------------
4407.10.01..............................................         $0.1483
4409.10.05..............................................          0.1483
4409.10.10..............................................          0.1483
4409.10.20..............................................          0.1483
4409.10.90..............................................          0.1483
4418.90.25..............................................          0.1483
------------------------------------------------------------------------

     (i) In the event that any HTSUS number subject to assessment is 
changed and such change is merely a replacement of a previous number 
and has no impact on the description of the softwood lumber involved, 
assessments will continue to be collected based on the new number.
    (j) If Customs does not collect an assessment from an importer, the 
importer is responsible for paying the assessment directly to the Board 
no later than the 30th calendar day of the month following the end of 
the quarter in which the softwood lumber was imported.
    (k) Articles brought into the United States temporarily and for 
which an exemption is claimed under subchapter XIII of chapter 98 of 
the HTSUS are not covered under this Order. If assessments are 
collected by Customs for these products, the importer may apply to the 
Board for a refund of assessments.
    (l) When a domestic manufacturer or importer fails to pay the 
assessment within 60 calendar days of the date it is due, the Board may 
impose a late payment charge and interest. The late payment charge and 
rate of interest shall be prescribed in regulations issued by the 
Secretary. All late assessments shall be subject to the specified late 
payment charge and interest. Persons failing to remit total assessments 
due in a timely manner may also be subject to actions under Federal 
debt collection procedures.
    (m) The Board may accept advance payment of assessments from any 
manufacturer for the U.S. market that will be credited toward any 
amount for which that person may become liable. The Board may not pay 
interest on any advance payment.
    (n) If the Board is not in place by the date the first assessments 
are to be collected, the Secretary shall receive assessments and shall 
pay such assessments and any interest earned to the Board when it is 
formed.


Sec.  1217.53  Exemption from assessment.

    (a) Manufacturers for the U.S. market who domestically ship and/or 
import less than 15 million board feet annually. (1) Domestic 
manufacturers who ship less than 15 million board feet of softwood 
lumber within the United States in a fiscal year are exempt from paying 
assessments. Such manufacturers must apply to the Board, on a form 
provided by the Board, for a certificate of exemption prior to the 
start of the fiscal year. This is an annual exemption and domestic 
manufacturers must reapply each year. Such manufacturers shall certify 
that they will ship less than 15 million board feet of softwood lumber 
during the fiscal year for which the exemption is claimed. Upon receipt 
of an application for exemption, the Board shall determine whether an 
exemption may be granted. The Board may request past shipment data to 
support the exemption request. The Board will then issue, if deemed 
appropriate, a certificate of exemption to the eligible domestic 
manufacturer. It is the responsibility of the domestic manufacturer to 
retain a copy of the certificate of exemption.
    (2) Importers who import into the United States less than 15 
million board feet of softwood lumber in a fiscal year are exempt from 
paying assessments. Such importers must apply to the Board, on a form 
provided by the Board, for a certificate of exemption prior to the 
start of the fiscal year. This is an annual exemption and importers 
must reapply each year. Such importers shall certify that they will 
import less than 15 million board feet of softwood lumber during the 
fiscal year for which the exemption is claimed. Upon receipt of an 
application for exemption, the Board shall determine whether an 
exemption is granted. The Board may request past import data to support 
the exemption request. The Board will then issue, if deemed 
appropriate, a certificate of exemption to the eligible importer. It is 
the responsibility of the importer to retain a copy of the certificate 
of exemption. The importer may be requested to submit a copy of the 
certificate to Customs. If Customs collects the assessment, the Board 
shall refund such importers their assessments no later than 60 calendar 
days after receipt of such assessments by the Board. No interest shall 
be paid on the assessments collected by Customs.
    (3) Domestic manufacturers who did not apply to the Board for an 
exemption and shipped less than 15 million board feet of softwood 
lumber within the United States during the fiscal year shall receive a 
refund from the Board for the applicable assessments within 30 calendar 
days after the end of the fiscal year. Board staff shall determine the 
assessments paid and refund the amount due to the domestic manufacturer 
accordingly.
    (4) Importers who did not apply to the Board for an exemption and 
imported less than 15 million board feet of softwood lumber during the 
fiscal year shall receive a refund from the Board for the applicable 
assessments within 30 calendar days after the end of the fiscal year.
    (5) If an entity is both a domestic manufacturer and an importer, 
the sum of such entity's domestic shipments and imports during a fiscal 
year shall count towards the 15 million board feet exemption.
    (6) Domestic manufacturers and importers who received an exemption 
certificate from the Board but domestically shipped or imported 15 
million board feet or more of softwood lumber during the fiscal year 
shall pay the Board the applicable assessments owed on the domestic 
shipments or imports over the 15 million board foot-exemption threshold 
within 30 calendar days after the end of the fiscal year and submit any 
necessary reports to the Board pursuant to Sec.  1217.70.
    (7) The Board may develop additional procedures to administer this 
exemption as appropriate. Such procedures shall be implemented through 
rulemaking by the Secretary.
    (b) Manufacturers for the U.S. market who domestically ship and/or 
import 15 million board feet or more annually. (1) Domestic 
manufacturers who domestically ship 15 million board feet or more per 
fiscal year shall not pay assessments on their first 15 million board 
feet of softwood lumber shipped during the applicable fiscal year.
    (2) Importers who import 15 million board feet or more per fiscal 
year shall be exempt from paying assessments on their first 15 million 
board feet of softwood lumber imported during the applicable fiscal 
year. Such importers shall receive a refund from the Board for the 
applicable assessments collected by Customs. The Board shall refund 
such importers their assessments no later than 60 calendar days after 
receipt by the Board.
    (c) Export. Shipments of softwood lumber by domestic manufacturers 
to locations outside of the United States are exempt from assessment. 
The Board shall establish procedures for approval by the Secretary for 
refunding assessments that may be paid on such shipments and establish 
any necessary safeguards as deemed appropriate. Safeguard procedures 
shall be implemented by the Secretary through rulemaking. The Board may 
also recommend to the Secretary that such shipments be assessed if it 
deems appropriate. Such action shall be implemented by the Secretary 
through rulemaking.
    (d) Organic. (1) Organic Act means section 2103 of the Organic 
Foods

[[Page 46200]]

Production Act of 1990 (7 U.S.C. 6501-6522).
    (2) A domestic manufacturer who operates under an approved National 
Organic Program (NOP) (7 CFR part 205) system plan, only manufactures 
and ships softwood lumber that is eligible to be labeled as 100 percent 
organic under the NOP and is not a split operation shall be exempt from 
payment of assessments. To obtain an organic exemption, an eligible 
domestic manufacturer shall submit a request for exemption to the 
Board, on a form provided by the Board, at any time initially and 
annually thereafter on or before the start of the fiscal year as long 
as such manufacturer continues to be eligible for the exemption. The 
request shall include the following: The manufacturer's name and 
address; a copy of the organic operation certificate provided by a 
USDA-accredited certifying agent as defined in the Organic Act, a 
signed certification that the applicant meets all of the requirements 
specified for an assessment exemption, and such other information as 
may be required by the Board and with the approval of the Secretary. 
The Board shall have 30 calendar days to approve the exemption request. 
If the exemption is not granted, the Board will notify the applicant 
and provide reasons for the denial within the same time frame.
    (3) An importer who imports only softwood lumber that is eligible 
to be labeled as 100 percent organic under the NOP and is not a split 
operation shall be exempt from the payment of assessments. To obtain an 
organic exemption, an eligible importer must submit documentation to 
the Board and request an exemption from assessment on 100 percent of 
organic softwood lumber, on a form provided by the Board, at any time 
initially and annually thereafter on or before the beginning of the 
fiscal year as long as the importer continues to be eligible for the 
exemption. This documentation shall include the same information as 
required by domestic manufacturers in paragraph (d)(2) of this section. 
If the importer complies with the requirements of this section, the 
Board will grant the exemption and issue a Certificate of Exemption to 
the importer. The Board will also issue the importer a 9-digit 
alphanumeric number valid for 1 year from the date of issue. This 
alphanumeric number should be entered by the importer to Customs at 
entry summary. Any line item entry of 100 percent organic softwood 
lumber bearing this alphanumeric number assigned by the Board will not 
be subject to assessments.
    (4) Importers who are exempt from assessment in paragraph (d)(3) of 
this section shall also be eligible for reimbursement of assessments 
collected by Customs and may apply to the Board for a reimbursement. 
The importer would be required to submit satisfactory proof to the 
Board that the importer paid the assessment on exempt organic products.
    (5) The exemption will apply immediately following the issuance of 
the exemption certificate.

Promotion, Research, and Information


Sec.  1217.60  Programs, plans, and projects.

    (a) The Board shall develop and submit to the Secretary for 
approval programs, plans and projects authorized by this subpart. Such 
programs, plans and projects shall provide for promotion, research, 
education and other activities including consumer and industry 
information and advertising designed to:
    (1) Maintain, develop, expand and grow markets for softwood lumber;
    (2) Enhance and strengthen the image, reputation and public 
acceptance of softwood lumber and the forests from which it comes;
    (3) Develop new markets and marketing strategies for softwood 
lumber;
    (4) Expand the knowledge and understanding of the strength, safety 
and technical applications and encourage innovation in the use of 
softwood lumber;
    (5) Transfer and disseminate the knowledge and understanding of the 
strength, safety, environmental and sustainable benefits and technical 
applications of softwood lumber; and
    (6) Develop, expand and grow existing and new opportunities and 
applications for softwood lumber.
    (b) No program, plan, or project shall be implemented prior to its 
approval by the Secretary. Once a program, plan, or project is so 
approved, the Board shall take appropriate steps to implement it.
    (c) The Board must evaluate each program, plan and project 
authorized under this subpart to ensure that it contributes to an 
effective and coordinated program of research, promotion and 
information. The Board must submit the evaluations to the Secretary. If 
the Board finds that a program, plan or project does not contribute to 
an effective program of promotion, research, or information, then the 
Board shall terminate such plan or program.


Sec.  1217.61  Independent evaluation.

    At least once every five years, the Board shall authorize and fund 
from funds otherwise available to the Board, an independent evaluation 
of the effectiveness of the Order and the programs conducted by the 
Board pursuant to the Act. The Board shall submit to the Secretary, and 
make available to the public, the results of each periodic independent 
evaluation conducted under this paragraph.


Sec.  1217.62  Patents, copyrights, trademarks, inventions, product 
formulations, and publications.

    Any patents, copyrights, trademarks, inventions, product 
formulations, and publications developed through the use of funds 
received by the Board under this subpart shall be the property of the 
U.S. Government, as represented by the Board, and shall along with any 
rents, royalties, residual payments, or other income from the rental, 
sales, leasing, franchising, or other uses of such patents, copyrights, 
trademarks, inventions, publications, or product formulations, inure to 
the benefit of the Board, shall be considered income subject to the 
same fiscal, budget, and audit controls as other funds of the Board, 
and may be licensed subject to approval by the Secretary. Upon 
termination of this subpart, Sec.  1217.83 shall apply to determine 
disposition of all such property.

Reports, Books, and Records


Sec.  1217.70  Reports.

    (a) Each manufacturer for the U.S. market will be required to 
provide periodically to the Board such information as the Board, with 
the approval of the Secretary, may require. Such information may 
include, but not be limited to:
    (1) For domestic manufacturers:
    (i) The name, address and telephone number of the domestic 
manufacturer;
    (ii) The board feet of softwood lumber shipped within the United 
States;
    (iii) The board feet of softwood lumber for which assessments were 
paid; and
    (iv) The board feet of softwood lumber that was exported.
    (2) For importers:
    (i) The name, address and telephone number of the importer;
    (ii) The board feet of softwood lumber imported;
    (iii) The board feet of softwood lumber for which assessments were 
paid; and
    (iv) The country of export.
    (b) For domestic manufacturers, such information shall accompany 
the collected payment of assessments on a quarterly basis specified in 
Sec.  1217.52. For importers who pay their assessments directly to the 
Board, such

[[Page 46201]]

information shall accompany the payment of collected assessments within 
30 calendar days after importation specified in Sec.  1217.52.


Sec.  1217.71  Books and records.

    Each manufacturer for the U.S. market, including those exempt under 
Sec.  1217.53, shall maintain any books and records necessary to carry 
out the provisions of this subpart and regulations issued thereunder, 
including such records as are necessary to verify any required reports. 
Domestic manufacturers who only export softwood lumber shall also 
retain such books and records. Such books and records must be made 
available during normal business hours for inspection by the Board's or 
Secretary's employees or agents. A manufacturer for the U.S. market 
must maintain the books and records for two years beyond the fiscal 
period to which they apply.


Sec.  1217.72  Confidential treatment.

    All information obtained from books, records, or reports under the 
Act, this subpart and the regulations issued thereunder shall be kept 
confidential by all persons, including all employees and former 
employees of the Board, all officers and employees and former officers 
and employees of contracting and subcontracting agencies or agreeing 
parties having access to such information. Such information shall not 
be available to Board members or other manufacturers for the U.S. 
market. Only those persons having a specific need for such information 
solely to effectively administer the provisions of this subpart shall 
have access to such information. Only such information so obtained as 
the Secretary deems relevant shall be disclosed by them, and then only 
in a judicial proceeding or administrative hearing brought at the 
direction, or at the request, of the Secretary, or to which the 
Secretary or any officer of the United States is a party, and involving 
this subpart. Nothing in this section shall be deemed to prohibit:
    (a) The issuance of general statements based upon the reports of 
the number of persons subject to this subpart or statistical data 
collected therefrom, which statements do not identify the information 
furnished by any person; and
    (b) The publication, by direction of the Secretary, of the name of 
any person who has been adjudged to have violated this part, together 
with a statement of the particular provisions of this part violated by 
such person.

Miscellaneous


Sec.  1217.80  Right of the Secretary.

    All fiscal matters, programs or projects, contracts, rules or 
regulations, reports, or other substantive actions proposed and 
prepared by the Board shall be submitted to the Secretary for approval.


Sec.  1217.81  Referenda.

    (a) Initial referendum. The Order shall not become effective unless 
the Order is approved by a majority of domestic manufacturers and 
importers voting in the referendum who also represent a majority of the 
volume of softwood lumber represented in the referendum who, during a 
representative period determined by the Secretary, have been engaged in 
the domestic manufacturing or importation of softwood lumber. A single 
entity who domestically manufactures and imports softwood lumber may 
cast one vote in the referendum.
    (b) Subsequent referenda. The Secretary shall conduct subsequent 
referenda:
    (1) For the purpose of ascertaining whether manufacturers for the 
U.S. market favor the amendment, continuation, suspension, or 
termination of the Order;
    (2) Five years after this Order becomes effective and every five 
years thereafter, to determine whether softwood lumber manufacturers 
for the U.S. market favor the continuation of the Order. The Order 
shall continue if it is favored by a majority of domestic manufacturers 
and importers voting in the referendum who also represent a majority of 
the volume of softwood lumber represented in the referendum who, during 
a representative period determined by the Secretary, have been engaged 
in the domestic manufacturing or importation of softwood lumber;
    (3) At the request of the Board established in this Order;
    (4) At the request of 10 percent or more of the number of persons 
eligible to vote in a referendum as set forth under the Order; or
    (5) At any time as determined by the Secretary.


Sec.  1217.82  Suspension or termination.

    (a) The Secretary shall suspend or terminate this part or subpart 
or a provision thereof, if the Secretary finds that this part or 
subpart or a provision thereof obstructs or does not tend to effectuate 
the purposes of the Act, or if the Secretary determines that this 
subpart or a provision thereof is not favored by persons voting in a 
referendum conducted pursuant to the Act.
    (b) The Secretary shall suspend or terminate this subpart at the 
end of the fiscal period whenever the Secretary determines that its 
suspension or termination is favored by a majority of domestic 
manufacturers and importers voting in the referendum who also represent 
a majority of the volume represented in the referendum who, during a 
representative period determined by the Secretary, have been engaged in 
the domestic manufacturing or importation of softwood lumber.
    (c) If, as a result of a referendum the Secretary determines that 
this subpart is not approved, the Secretary shall:
    (1) Not later than one hundred and eighty (180) calendar days after 
making the determination, suspend or terminate, as the case may be, the 
collection of assessments under this subpart.
    (2) As soon as practical, suspend or terminate, as the case may be, 
activities under this subpart in an orderly manner.


Sec.  1217.83  Proceedings after termination.

    (a) Upon termination of this subpart, the Board shall recommend to 
the Secretary up to nine of its members, representing all regions 
specified in Sec.  1217.40(b), three of whom shall be importers and six 
of whom shall be domestic manufacturers, to serve as trustees for the 
purpose of liquidating the Board's affairs. Such persons, upon 
designation by the Secretary, shall become trustees of all of the funds 
and property then in the possession or under control of the Board, 
including claims for any funds unpaid or property not delivered, or any 
other existing claim at the time of such termination.
    (b) The said trustees shall:
    (1) Continue in such capacity until discharged by the Secretary;
    (2) Carry out the obligations of the Board under any contracts or 
agreements entered into pursuant to the Order;
    (3) From time to time account for all receipts and disbursements 
and deliver all property on hand, together with all books and records 
of the Board and trustees, to such person or person as the Secretary 
directs; and
    (4) Upon request of the Secretary execute such assignments or other 
instruments necessary or appropriate to vest in such persons title and 
right to all of the funds, property, and claims vested in the Board or 
the trustees pursuant to the Order.
    (c) Any person to whom funds, property, or claims have been 
transferred or delivered pursuant to the Order shall be subject to the 
same

[[Page 46202]]

obligations imposed upon the Board and upon the trustees.
    (d) Any residual funds not required to defray the necessary 
expenses of liquidation shall be turned over to the Secretary to be 
disposed of, to the extent practical, to one or more softwood lumber 
industry organizations in the United States whose mission is generic 
softwood lumber promotion, research, and information programs.


Sec.  1217.84  Effect of termination or amendment.

    Unless otherwise expressly provided by the Secretary, the 
termination of this subpart or of any regulation issued pursuant 
thereto, or the issuance of any amendment to either thereof, shall not:
    (a) Affect or waive any right, duty, obligation, or liability which 
shall have arisen or which may thereafter arise in connection with any 
provision of this subpart or any regulation issued thereunder;
    (b) Release or extinguish any violation of this subpart or any 
regulation issued thereunder; or
    (c) Affect or impair any rights or remedies of the United States, 
or of the Secretary or of any other persons, with respect to any such 
violation.


Sec.  1217.85  Personal liability.

    No member or employee of the Board shall be held personally 
responsible, either individually or jointly with others, in any way 
whatsoever, to any person for errors in judgment, mistakes, or other 
acts, either of commission or omission, as such member or employee, 
except for acts of dishonesty or willful misconduct.


Sec.  1217.86  Separability.

    If any provision of this subpart is declared invalid or the 
applicability of it to any person or circumstances is held invalid, the 
validity of the remainder of this subpart, or the applicability thereof 
to other persons or circumstances shall not be affected thereby.


Sec.  1217.87  Amendments.

    Amendments to this subpart may be proposed from time to time by the 
Board or any interested person affected by the provisions of the Act, 
including the Secretary.


Sec.  1217.88  OMB control numbers.

    The control numbers assigned to the information collection 
requirements by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, are OMB control 
number 0505-0001 (Board nominee background statement) and OMB control 
number 0581-0265.

Subpart B--[Reserved]

    Dated: July 28, 2011.
David R. Shipman,
Acting Administrator.
[FR Doc. 2011-19491 Filed 8-1-11; 8:45 am]
BILLING CODE 3410-02-P