Paper and Paper-Based Packaging Promotion, Research and Information Order; Referendum Procedures, 211-216 [2012-30915]

Download as PDF Vol. 78 Wednesday, No. 1 January 2, 2013 Part IV Department of Agriculture tkelley on DSK3SPTVN1PROD with Agricultural Marketing Service 7 CFR Part 1222 Paper and Paper-Based Packaging Promotion, Research and Information Order; Referendum Procedures; Proposed Rule VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\02JAP4.SGM 02JAP4 212 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1222 [Document Number AMS–FV–11–0069 PR– B] RIN 0581–AD21 Paper and Paper-Based Packaging Promotion, Research and Information Order; Referendum Procedures Agricultural Marketing Service, Department of Agriculture. ACTION: Proposed rule. AGENCY: This proposed rule invites comments on procedures for conducting a referendum to determine whether issuance of a proposed Paper and PaperBased Packaging Promotion, Research and Information Order (Order) is favored by manufacturers (domestic producers) and importers of paper and paper-based packaging. The procedures would also be used for any subsequent referendum under the Order. The proposed Order is being published separately in this issue of the Federal Register. This proposed rule also announces the Agricultural Marketing Service’s (AMS) intent to request approval by the Office of Management and Budget (OMB) of new information collection requirements to implement the program. DATES: Comments must be received by March 4, 2013. Pursuant to the Paperwork Reduction Act (PRA), comments on the information collection burden that would result from this proposal must be received by March 4, 2013. ADDRESSES: Interested persons are invited to submit written comments concerning this rule. Comments may be submitted on the Internet at: https:// www.regulations.gov or to the Promotion and Economics Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., Room 1406–S, Stop 0244, Washington, DC 20250–0244; facsimile: (202) 205–2800. All comments should reference the docket number and the date and page number of this issue of the Federal Register and will be made available for public inspection, including name and address, if provided, in the above office during regular business hours or it can be viewed at https://www.regulations.gov. Pursuant to the PRA, comments regarding the accuracy of the burden estimate, ways to minimize the burden, including the use of automated collection techniques or other forms of tkelley on DSK3SPTVN1PROD with SUMMARY: VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 information technology, or any other aspect of this collection of information, should be sent to the above address. In addition, comments concerning the information collection should also be sent to the Desk Office for Agriculture, Office of Information and Regulatory Affairs, OMB, New Executive Office Building, 725 17th Street NW., Room 725, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Marketing Specialist, Promotion and Economics Division, Fruit and Vegetable Program, AMS, USDA, P.O. Box 831, Beavercreek, Oregon 97004; telephone: (503) 632– 8848; facsimile (503) 632–8852; or electronic mail: Maureen.Pello@ams.usda.gov. This rule is issued pursuant to the Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 U.S.C. 7411– 7425). SUPPLEMENTARY INFORMATION: Executive Order 12866 This rule regarding proposed referendum procedures has been determined to be non-significant for purposes of Executive Order 12866 and therefore has not been reviewed by the OMB. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it shall not affect or preempt any other Federal or state law authorizing promotion or research relating to an agricultural commodity. Under section 519 of the 1996 Act, a person subject to an order may file a written petition with the U.S. Department of Agriculture (USDA) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 purpose not later than 20 days after the date of the entry of USDA’s final ruling. This rule invites comments on procedures for conducting a referendum to determine whether manufacturers and importers of paper and paper-based packaging favor issuance of a proposed paper and paper-based packaging Order. The program would cover four types of paper and paper-based packaging— printing, writing and related paper, kraft packaging paper (used for products like grocery bags and sacks), containerboard (used to make shipping containers and related products), and paperboard (used for food and beverage packaging, tubes, and other miscellaneous products). USDA would conduct the referendum. The program would be implemented if it is favored by a majority of manufacturers and importers of paper and paper-based packaging voting in the referendum who also represent a majority of the volume of paper and paper-based packaging represented in the referendum. The procedures would also be used for any subsequent referendum under the Order. The proposed Order is being published separately in this issue of the Federal Register. This rule also announces AMS’s intent to request approval by the OMB of new information collection requirements to implement the program. The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include the products of forestry, which includes paper and paper-based packaging. The 1996 Act provides for alternatives within the terms of a variety of provisions. Paragraph (e) of section 518 of the 1996 Act provides three options for determining industry approval of a new research and promotion program: (1) By a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years E:\FR\FM\02JAP4.SGM 02JAP4 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with after assessments first begin under an order. USDA received a proposal for a national research and promotion program for paper and paper-based packaging from the Paper and PaperBased Packaging Panel (Panel). The Panel is a group of 14 industry members that was formed in May 2010 to oversee development of the program. The American Forest & Paper Association (AF&PA), a national trade association, provided technical assistance to the Panel. The program would be financed by an assessment on paper and paperbased packaging manufacturers and importers and would be administered by a board of industry members selected by the Secretary of Agriculture (Secretary). The assessment rate would initially be $0.35 per short ton. (One short ton equals 2,000 pounds.) Entities that manufacture or import less than 100,000 short tons annually would be exempt. The purpose of the program would be to maintain and expand markets for paper and paper-based packaging. The Panel proposed that a referendum be held among eligible manufacturers and importers of paper and paper-based packaging to determine whether they favor implementation of the program prior to it going into effect. The Panel recommended that the program be implemented if it is favored by a majority of the manufacturers and importers voting in the referendum who also represent a majority of the volume of paper and paper-based packaging represented in the referendum. Manufacturers and importers who produce or import 100,000 short tons or more of paper and paper-based packaging annually would be eligible to vote in the referendum. Accordingly, this rule would add subpart B to part 1222 that would establish procedures for conducting the referendum. The procedures would cover definitions, voting instructions, use of subagents, ballots, the referendum report, and confidentiality of information. The procedures would be applicable for the initial referendum and future referenda. Initial Regulatory Flexibility Act Analysis In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601– 612), AMS is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has considered the economic impact of this action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 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 (manufacturers and importers) as those having annual receipts of no more than $7.0 million. According to the AF&PA, in 2011, there were 84 manufacturers in the United States that produced one or more of the four types of paper and paperbased packaging to be covered under the proposed Order. Using an average price of $760 per short ton,1 a manufacturer who produced less than 9,210 short tons of paper and paper-based packaging per year would be considered a small entity. It is estimated that no more than four manufacturers produced less than 9,210 short tons in 2011. Thus, the majority of manufacturers would not be considered small businesses. According to Customs data, it is estimated that, in 2011, there were about 2,612 importers of paper and paper-based packaging. Eighty-five importers, or about 3.2 percent, imported more than $7.0 million worth of paper and paper-based packaging. Thus, the majority of importers would be considered small entities. However, no importer who imported 100,000 short tons or more (the Order’s proposed exemption threshold) imported less than $7.0 million worth of paper and paper-based packaging (19 importers). Therefore, none of the 19 importers to be covered under the proposed Order would be considered small businesses. It is estimated that, in 2011, about 68.5 million short tons of paper and paper-based packaging were produced. Of the 68.5 million short tons, about 63.2 percent was manufactured in the South, 17.1 percent was manufactured in the Midwest, 10.5 percent was manufactured in the Northeast, and 9.2 percent was manufactured in the West.2 According to Customs data, in 2011, imports of paper and paper-based packaging to be covered under the program totaled 7.5 million short tons. Of that total, about 58.6 percent was from Canada, 22.2 percent from Western Europe, 9.8 percent was from China, 1 AF&PA does not collect price information and other industry sources do not publish information on average price for paper and paper-based packaging. A reasonable estimate for average price of paper and paper-based packaging is the value per ton of paper and paper-based packaging exports. According to U.S. Census data, the average value of paper and paper-based packaging exports in 2011 was approximately $760 per short ton. 2 Data was compiled by the AF&PA from the American Forest & Paper Association’s 51st Annual Survey of Paper, Paperboard and Pulp, 2011. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 213 Japan and the Far East, 2.7 percent was from South America and the remainder was from other countries. This proposed rule invites comments on procedures for conducting a referendum to determine whether manufacturers and importers of paper and paper-based packaging favor issuance of a proposed Order. USDA would conduct the referendum. The program would be implemented if it is favored by a majority of manufacturers and importers voting in a referendum who also represent a majority of paper and paper-based packaging represented in the referendum. The procedures would also be used for any subsequent referendum under the Order. The procedures are authorized under paragraph (e) of section 518 the 1996 Act. Regarding the economic impact of this rule on affected entities, eligible manufacturers and importers would have the opportunity to participate in the referendum. The Order would exempt manufacturers and importers who produce or import less than 100,000 short tons annually from the payment of assessments. Exempt manufacturers and importers would not be eligible to participate in the referendum. Of the 84 manufacturers and 2,612 importers, it is estimated that about 51 manufacturers and 19 importers would pay assessments under the Order and thus be eligible to vote in the referendum. Using 2011 data and deducting exempt tonnage, it is estimated that if 72.5 million short tons of paper and paper-based packaging (67.2 million short tons domestic and 5.3 million short tons imported) were assessed at a rate of $0.35 per short ton, about $25.4 million would be collected in assessments. Of that $25.4 million, about 92.5 percent ($23.5 million) would be paid by domestic manufacturers and 7.5 percent ($1.9 million) would be paid by importers. Voting in the referendum is optional. If manufacturers and importers chose to vote, the burden of voting would be offset by the benefits of having the opportunity to vote on whether or not they want to be covered by the program. Regarding alternatives, USDA considered requiring eligible voters to vote in person at various USDA offices across the country. USDA also considered electronic voting, but the use of computers is not universal. Conducting the referendum from one central location by mail ballot would be more cost effective and reliable. USDA would provide easy access to information for potential voters through a toll free telephone line. E:\FR\FM\02JAP4.SGM 02JAP4 214 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with This action would impose an additional reporting burden on eligible manufacturers and importers of paper and paper-based packaging. Eligible manufacturers and importers would have the opportunity to complete and submit a ballot to USDA indicating whether or not they favor implementation of the proposed Order. The specific burden for the ballot is detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Regarding outreach efforts, USDA would keep these individuals informed throughout the program implementation and referendum process to ensure that they are aware of and are able to participate in the program implementation process. USDA would also publicize information regarding the referendum process so that trade associations and related industry media can be kept informed. USDA has performed this initial RFA analysis regarding the impact of this proposed rule on small businesses. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the referendum ballot, which represents the information collection and recordkeeping requirements that may be imposed by this rule, has been submitted to OMB for approval. Title: Paper and Paper-Based Packaging Promotion, Research and Information (Referendum Procedures). OMB Number: 0581–NEW. Expiration Date of Approval: 3 years from OMB date of approval. Type of Request: New information collection for research and promotion programs. Abstract: The information collection requirements in the request are essential to carry out the intent of the 1996 Act. The information collection concerns a proposal received by USDA for a national research and promotion program for paper and paper-based packaging. The program would be VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 financed by an assessment on manufacturers and importers and would be administered by a board of industry members selected by the Secretary. The program would exempt manufacturers and importers who produce or import less than 100,000 short tons of paper and paper-based packaging annually. A referendum would be held among eligible manufacturers and importers to determine whether they favor implementation of the program prior to it going into effect. The purpose of the program would be to maintain and expand markets for paper and paperbased packaging. The information collection requirements in this rule concern the referendum that would be held to determine whether the program is favored by the industry. Current manufacturers or importers that manufactured or imported 100,000 short tons or more of paper and paper-based packaging during the representative period would be eligible to vote in the referendum. The ballot would be completed by eligible manufacturers and importers who want to indicate whether or not they support implementation of the program. Referendum Ballot Estimate of Burden: Public recordkeeping burden for this collection of information is estimated to average 0.25 hour per application. Respondents: Manufacturers and importers. Estimated Number of Respondents: 70 (51 manufacturers and 19 importers). Estimated Number of Responses per Respondent: 1 every 7 years (0.14). Estimated Total Annual Burden on Respondents: 2.45 hours. The ballot would be added to the other information collections approved under OMB No. 0581–NEW. An estimated 70 respondents would provide information to the Board (51 manufacturers and 19 importers). The estimated cost of providing the information to the Board by respondents would be $80.85. This total has been estimated by multiplying 2.45 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor statistics. The proposed Order’s provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 other programs administered by USDA and other state programs. Request for Public Comment Under the Paperwork Reduction Act Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the proposed Order and USDA’s oversight of the proposed Order, including whether the information would have practical utility; (b) the accuracy of USDA’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) the accuracy of USDA’s estimate of the principal manufacturing areas in the United States for paper and paper-based packaging; (d) the accuracy of USDA’s estimate of the number of manufacturers and importers that would be covered under the program; (e) ways to enhance the quality, utility, and clarity of the information to be collected; and (f) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments concerning the information collection requirements contained in this action should reference OMB No. 0581–NEW. In addition, the docket number, date, and page number of this issue of the Federal Register also should be referenced. Comments should be sent to the same addresses referenced in the ADDRESSES section of this rule. A 60-day comment period is provided to allow interested persons to comment on this proposed information collection. All written comments received will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. List of Subjects in 7 CFR Part 1222 Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Paper and Paper-Based Packaging, Promotion, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, it is proposed that Title 7, Chapter XI of the Code of Federal Regulations, as proposed to be amended elsewhere in this issue of the Federal Register, be further amended as follows: E:\FR\FM\02JAP4.SGM 02JAP4 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules PART 1222—PAPER AND PAPER– BASED PACKAGING PROMOTION, RESEARCH AND INFORMATION ORDER 1. The authority citation for part 1222 continues to read as follows: ■ Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 7401. 2. Subpart B of 7 CFR part 1222 is added to read as follows: ■ Subpart B—Referendum Procedures Sec. 1222.100 General. 1222.101 Definitions. 1222.102 Voting. 1222.103 Instructions. 1222.104 Subagents. 1222.105 Ballots. 1222.106 Referendum report. 1222.107 Confidential information. 1222.108 OMB Control number. Subpart B—Referendum Procedures § 1222.100 General. Referenda to determine whether eligible manufacturers and importers favor the issuance, continuance, amendment, suspension, or termination of the Paper and Paper-Based Packaging Promotion, Research and Information Order shall be conducted in accordance with this subpart. tkelley on DSK3SPTVN1PROD with § 1222.101 Definitions. For the purposes of this subpart: (a) Administrator means the Administrator of the Agricultural Marketing Service, with power to delegate, or any officer or employee of the U.S. Department of Agriculture to whom authority has been delegated or may hereafter be delegated to act in the Administrator’s stead. (b) Converted products means products made from paper and paperbased packaging. (c) Customs or CBP means the U.S. Customs and Border Protection, an agency of the U.S. Department of Homeland Security. (d) 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. (e) Eligible manufacturer or producer means any person who is currently a manufacturer or producer and who manufactured 100,000 short tons or more of paper and paper-based packaging during the representative period. (f) Eligible importer means any person who is currently an importer and who imported 100,000 short tons or more of VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 paper and paper-based packaging into the United States during the representative period as a principal or as an agent, broker, or consignee of any person who manufactured paper and paper-based packaging outside of the United States for sale in the United States, and who is listed as the importer of record for such paper and paperbased packaging. Importation occurs when paper and paper-based packaging manufactured outside of the United States is released from custody by Customs and introduced into the stream of commerce in the United States. Included are persons who hold title to foreign-manufactured paper and paperbased packaging immediately upon release by Customs, as well as any persons who act on behalf of others, as agents or brokers, to secure the release of paper and paper-based packaging from Customs when such paper and paper-based packaging is entered or withdrawn for use in the United States. (g) Kraft process means a process that transforms wood into a high quality strong pulp for making paper and paperbased packaging. (h) Linerboard means a grade of containerboard that is used as facing material in the manufacture of corrugated or solid fiber shipping boxes. (i) Manufacture or produce means the process of transforming pulp into paper and paper-based packaging. (j) Order means the Paper and PaperBased Packaging Promotion, Research and Information Order. (k) Paper and paper-based packaging means: (1) Printing, writing and related paper, which is coated or uncoated paper that is subsequently converted into products used for printing, writing and other communication purposes, such as file folders, envelopes, catalogues, magazines and brochures. For purposes of this Order, printing, writing and related paper includes thermal paper but does not include carbonless paper; (2) Kraft packaging paper, which is coarse unbleached, semi-bleached or fully bleached grades of paper that are subsequently converted into products such as grocery bags, multiwall sacks, waxed paper and other products; (3) Containerboard, which is all forms of linerboard and medium that is used to manufacture corrugated boxes, shipping containers and related products; and (4) Paperboard, which is solid bleached kraft board, recycled board and unbleached kraft board that is subsequently converted into a wide variety of end uses, including folding boxes, food and beverage packaging, PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 215 tubes, cans, and drums, and other miscellaneous products. Paperboard does not include construction-related products such as gypsum wallboard facings and panel board. (5) For purposes of this Order, paper and paper-based packaging does not include tissue paper, newsprint or converted products. (l) Person means any individual, group of individuals, partnership, corporation, association, cooperative, or any other legal entity. For the purpose of this definition, the term ‘‘partnership’’ includes, but is not limited to: (1) A husband and a wife who have title to, or leasehold interest in, a paper and paper-based packaging manufacturing entity as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and (2) So called ‘‘joint ventures’’ wherein one or more parties to an agreement, informal or otherwise, contributed land, facilities, capital, labor, management, equipment, or other services, or any variation of such contributions by two or more parties, so that it results in the manufacturing or importation of paper and paper-based packaging and the authority to transfer title to the paper and paper-based packaging so manufactured or imported. (m) Referendum agent or agent means the individual or individuals designated by the Secretary to conduct the referendum. (n) Representative period means the period designated by the Department. (o) Short ton or ton means a measure of weight equal to 2,000 pounds. (p) United States means collectively the 50 states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States. § 1222.102 Voting. (a) Each eligible manufacturer and importer of paper and paper-based packaging shall be entitled to cast only one ballot in the referendum. However, each manufacturer in a landlord/tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to manufacture paper and paper-based manufacturing, in which more than one of the parties is a manufacturer or importer, shall be entitled to cast one ballot in the referendum covering only such manufacturer or importer’s share of ownership. (b) Proxy voting is not authorized, but an officer or employee of an eligible corporate manufacturer or importer, or E:\FR\FM\02JAP4.SGM 02JAP4 216 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules an administrator, executor, or trustee of an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority. (c) A single entity who manufactures and imports paper and paper-based manufacturing may cast one vote in the referendum. (d) All ballots are to be cast by mail or other means, as instructed by the Department. § 1222.103 Instructions. tkelley on DSK3SPTVN1PROD with The referendum agent shall conduct the referendum, in the manner provided in this subpart, under the supervision of the Administrator. The Administrator may prescribe additional instructions, consistent with the provisions of this subpart, to govern the procedure to be followed by the referendum agent. Such agent shall: (a) Determine the period during which ballots may be cast; (b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter; (c) Give reasonable public notice of the referendum: (1) By using available media or public information sources, without incurring VerDate Mar<15>2010 17:49 Dec 31, 2012 Jkt 229001 advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and (2) By such other means as the agent may deem advisable. (d) Mail to eligible manufacturers and importers whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order. No person who claims to be eligible to vote shall be refused a ballot; (e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process; (f) Prepare a report on the referendum; and (g) Announce the results to the public. § 1222.104 Subagents. The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent’s functions of this subpart. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent. § 1222.105 Ballots. The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the PO 00000 Frm 00006 Fmt 4701 Sfmt 9990 agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted. § 1222.106 Referendum report. Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results. § 1222.107 Confidential information. The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Order and the voter list shall be strictly confidential and shall not be disclosed. § 1222.108 OMB control number. The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. is OMB control number 0581– NEW. Dated: December 18, 2012. David R. Shipman, Administrator. [FR Doc. 2012–30915 Filed 12–31–12; 8:45 am] BILLING CODE 3410–02–P E:\FR\FM\02JAP4.SGM 02JAP4

Agencies

[Federal Register Volume 78, Number 1 (Wednesday, January 2, 2013)]
[Proposed Rules]
[Pages 211-216]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30915]



[[Page 211]]

Vol. 78

Wednesday,

No. 1

January 2, 2013

Part IV





Department of Agriculture





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 Agricultural Marketing Service





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7 CFR Part 1222





 Paper and Paper-Based Packaging Promotion, Research and Information 
Order; Referendum Procedures; Proposed Rule

Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / 
Proposed Rules

[[Page 212]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1222

[Document Number AMS-FV-11-0069 PR-B]
RIN 0581-AD21


Paper and Paper-Based Packaging Promotion, Research and 
Information Order; Referendum Procedures

AGENCY: Agricultural Marketing Service, Department of Agriculture.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on procedures for 
conducting a referendum to determine whether issuance of a proposed 
Paper and Paper-Based Packaging Promotion, Research and Information 
Order (Order) is favored by manufacturers (domestic producers) and 
importers of paper and paper-based packaging. The procedures would also 
be used for any subsequent referendum under the Order. The proposed 
Order is being published separately in this issue of the Federal 
Register. This proposed rule also announces the Agricultural Marketing 
Service's (AMS) intent to request approval by the Office of Management 
and Budget (OMB) of new information collection requirements to 
implement the program.

DATES: Comments must be received by March 4, 2013. Pursuant to the 
Paperwork Reduction Act (PRA), comments on the information collection 
burden that would result from this proposal must be received by March 
4, 2013.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments may be submitted on the Internet at: 
https://www.regulations.gov or to the Promotion and Economics Division, 
Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., 
Room 1406-S, Stop 0244, Washington, DC 20250-0244; facsimile: (202) 
205-2800. All comments should reference the docket number and the date 
and page number of this issue of the Federal Register and will be made 
available for public inspection, including name and address, if 
provided, in the above office during regular business hours or it can 
be viewed at https://www.regulations.gov.
    Pursuant to the PRA, comments regarding the accuracy of the burden 
estimate, ways to minimize the burden, including the use of automated 
collection techniques or other forms of information technology, or any 
other aspect of this collection of information, should be sent to the 
above address. In addition, comments concerning the information 
collection should also be sent to the Desk Office for Agriculture, 
Office of Information and Regulatory Affairs, OMB, New Executive Office 
Building, 725 17th Street NW., Room 725, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Marketing 
Specialist, Promotion and Economics Division, Fruit and Vegetable 
Program, AMS, USDA, P.O. Box 831, Beavercreek, Oregon 97004; telephone: 
(503) 632-8848; facsimile (503) 632-8852; or electronic mail: 
Maureen.Pello@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the 
Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 
U.S.C. 7411-7425).

Executive Order 12866

    This rule regarding proposed referendum procedures has been 
determined to be non-significant for purposes of Executive Order 12866 
and therefore has not been reviewed by the OMB.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. Section 
524 of the 1996 Act provides that it shall not affect or preempt any 
other Federal or state law authorizing promotion or research relating 
to an agricultural commodity.
    Under section 519 of the 1996 Act, a person subject to an order may 
file a written petition with the U.S. Department of Agriculture (USDA) 
stating that an order, any provision of an order, or any obligation 
imposed in connection with an order, is not established in accordance 
with the law, and request a modification of an order or an exemption 
from an order. Any petition filed challenging an order, any provision 
of an order, or any obligation imposed in connection with an order, 
shall be filed within two years after the effective date of an order, 
provision, or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter, USDA will issue a ruling on the petition. The 1996 Act 
provides that the district court of the United States for any district 
in which the petitioner resides or conducts business shall have the 
jurisdiction to review a final ruling on the petition, if the 
petitioner files a complaint for that purpose not later than 20 days 
after the date of the entry of USDA's final ruling.
    This rule invites comments on procedures for conducting a 
referendum to determine whether manufacturers and importers of paper 
and paper-based packaging favor issuance of a proposed paper and paper-
based packaging Order. The program would cover four types of paper and 
paper-based packaging--printing, writing and related paper, kraft 
packaging paper (used for products like grocery bags and sacks), 
containerboard (used to make shipping containers and related products), 
and paperboard (used for food and beverage packaging, tubes, and other 
miscellaneous products).
    USDA would conduct the referendum. The program would be implemented 
if it is favored by a majority of manufacturers and importers of paper 
and paper-based packaging voting in the referendum who also represent a 
majority of the volume of paper and paper-based packaging represented 
in the referendum. The procedures would also be used for any subsequent 
referendum under the Order. The proposed Order is being published 
separately in this issue of the Federal Register. This rule also 
announces AMS's intent to request approval by the OMB of new 
information collection requirements to implement the program.
    The 1996 Act authorizes USDA to establish agricultural commodity 
research and promotion orders which may include a combination of 
promotion, research, industry information, and consumer information 
activities funded by mandatory assessments. These programs are designed 
to maintain and expand markets and uses for agricultural commodities. 
As defined under section 513(1)(D) of the 1996 Act, agricultural 
commodities include the products of forestry, which includes paper and 
paper-based packaging.
    The 1996 Act provides for alternatives within the terms of a 
variety of provisions. Paragraph (e) of section 518 of the 1996 Act 
provides three options for determining industry approval of a new 
research and promotion program: (1) By a majority of those persons 
voting; (2) by persons voting for approval who represent a majority of 
the volume of the agricultural commodity; or (3) by a majority of those 
persons voting for approval who also represent a majority of the volume 
of the agricultural commodity. In addition, section 518 of the 1996 Act 
provides for referenda to ascertain approval of an order to be 
conducted either prior to its going into effect or within three years

[[Page 213]]

after assessments first begin under an order.
    USDA received a proposal for a national research and promotion 
program for paper and paper-based packaging from the Paper and Paper-
Based Packaging Panel (Panel). The Panel is a group of 14 industry 
members that was formed in May 2010 to oversee development of the 
program. The American Forest & Paper Association (AF&PA), a national 
trade association, provided technical assistance to the Panel. The 
program would be financed by an assessment on paper and paper-based 
packaging manufacturers and importers and would be administered by a 
board of industry members selected by the Secretary of Agriculture 
(Secretary). The assessment rate would initially be $0.35 per short 
ton. (One short ton equals 2,000 pounds.) Entities that manufacture or 
import less than 100,000 short tons annually would be exempt. The 
purpose of the program would be to maintain and expand markets for 
paper and paper-based packaging.
    The Panel proposed that a referendum be held among eligible 
manufacturers and importers of paper and paper-based packaging to 
determine whether they favor implementation of the program prior to it 
going into effect. The Panel recommended that the program be 
implemented if it is favored by a majority of the manufacturers and 
importers voting in the referendum who also represent a majority of the 
volume of paper and paper-based packaging represented in the 
referendum. Manufacturers and importers who produce or import 100,000 
short tons or more of paper and paper-based packaging annually would be 
eligible to vote in the referendum.
    Accordingly, this rule would add subpart B to part 1222 that would 
establish procedures for conducting the referendum. The procedures 
would cover definitions, voting instructions, use of subagents, 
ballots, the referendum report, and confidentiality of information. The 
procedures would be applicable for the initial referendum and future 
referenda.

Initial Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), AMS is required to examine the impact of the proposed rule on 
small entities. Accordingly, AMS has considered the economic impact of 
this action on small entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
disproportionately burdened. The Small Business Administration defines, 
in 13 CFR part 121, small agricultural producers as those having annual 
receipts of no more than $750,000 and small agricultural service firms 
(manufacturers and importers) as those having annual receipts of no 
more than $7.0 million.
    According to the AF&PA, in 2011, there were 84 manufacturers in the 
United States that produced one or more of the four types of paper and 
paper-based packaging to be covered under the proposed Order. Using an 
average price of $760 per short ton,\1\ a manufacturer who produced 
less than 9,210 short tons of paper and paper-based packaging per year 
would be considered a small entity. It is estimated that no more than 
four manufacturers produced less than 9,210 short tons in 2011. Thus, 
the majority of manufacturers would not be considered small businesses.
---------------------------------------------------------------------------

    \1\ AF&PA does not collect price information and other industry 
sources do not publish information on average price for paper and 
paper-based packaging. A reasonable estimate for average price of 
paper and paper-based packaging is the value per ton of paper and 
paper-based packaging exports. According to U.S. Census data, the 
average value of paper and paper-based packaging exports in 2011 was 
approximately $760 per short ton.
---------------------------------------------------------------------------

    According to Customs data, it is estimated that, in 2011, there 
were about 2,612 importers of paper and paper-based packaging. Eighty-
five importers, or about 3.2 percent, imported more than $7.0 million 
worth of paper and paper-based packaging. Thus, the majority of 
importers would be considered small entities. However, no importer who 
imported 100,000 short tons or more (the Order's proposed exemption 
threshold) imported less than $7.0 million worth of paper and paper-
based packaging (19 importers). Therefore, none of the 19 importers to 
be covered under the proposed Order would be considered small 
businesses.
    It is estimated that, in 2011, about 68.5 million short tons of 
paper and paper-based packaging were produced. Of the 68.5 million 
short tons, about 63.2 percent was manufactured in the South, 17.1 
percent was manufactured in the Midwest, 10.5 percent was manufactured 
in the Northeast, and 9.2 percent was manufactured in the West.\2\
---------------------------------------------------------------------------

    \2\ Data was compiled by the AF&PA from the American Forest & 
Paper Association's 51st Annual Survey of Paper, Paperboard and 
Pulp, 2011.
---------------------------------------------------------------------------

    According to Customs data, in 2011, imports of paper and paper-
based packaging to be covered under the program totaled 7.5 million 
short tons. Of that total, about 58.6 percent was from Canada, 22.2 
percent from Western Europe, 9.8 percent was from China, Japan and the 
Far East, 2.7 percent was from South America and the remainder was from 
other countries.
    This proposed rule invites comments on procedures for conducting a 
referendum to determine whether manufacturers and importers of paper 
and paper-based packaging favor issuance of a proposed Order. USDA 
would conduct the referendum. The program would be implemented if it is 
favored by a majority of manufacturers and importers voting in a 
referendum who also represent a majority of paper and paper-based 
packaging represented in the referendum. The procedures would also be 
used for any subsequent referendum under the Order. The procedures are 
authorized under paragraph (e) of section 518 the 1996 Act.
    Regarding the economic impact of this rule on affected entities, 
eligible manufacturers and importers would have the opportunity to 
participate in the referendum. The Order would exempt manufacturers and 
importers who produce or import less than 100,000 short tons annually 
from the payment of assessments. Exempt manufacturers and importers 
would not be eligible to participate in the referendum. Of the 84 
manufacturers and 2,612 importers, it is estimated that about 51 
manufacturers and 19 importers would pay assessments under the Order 
and thus be eligible to vote in the referendum. Using 2011 data and 
deducting exempt tonnage, it is estimated that if 72.5 million short 
tons of paper and paper-based packaging (67.2 million short tons 
domestic and 5.3 million short tons imported) were assessed at a rate 
of $0.35 per short ton, about $25.4 million would be collected in 
assessments. Of that $25.4 million, about 92.5 percent ($23.5 million) 
would be paid by domestic manufacturers and 7.5 percent ($1.9 million) 
would be paid by importers.
    Voting in the referendum is optional. If manufacturers and 
importers chose to vote, the burden of voting would be offset by the 
benefits of having the opportunity to vote on whether or not they want 
to be covered by the program.
    Regarding alternatives, USDA considered requiring eligible voters 
to vote in person at various USDA offices across the country. USDA also 
considered electronic voting, but the use of computers is not 
universal. Conducting the referendum from one central location by mail 
ballot would be more cost effective and reliable. USDA would provide 
easy access to information for potential voters through a toll free 
telephone line.

[[Page 214]]

    This action would impose an additional reporting burden on eligible 
manufacturers and importers of paper and paper-based packaging. 
Eligible manufacturers and importers would have the opportunity to 
complete and submit a ballot to USDA indicating whether or not they 
favor implementation of the proposed Order. The specific burden for the 
ballot is detailed later in this document in the section titled 
Paperwork Reduction Act. As with all Federal promotion programs, 
reports and forms are periodically reviewed to reduce information 
requirements and duplication by industry and public sector agencies. 
Finally, USDA has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    Regarding outreach efforts, USDA would keep these individuals 
informed throughout the program implementation and referendum process 
to ensure that they are aware of and are able to participate in the 
program implementation process. USDA would also publicize information 
regarding the referendum process so that trade associations and related 
industry media can be kept informed.
    USDA has performed this initial RFA analysis regarding the impact 
of this proposed rule on small businesses.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the referendum ballot, which represents the information 
collection and recordkeeping requirements that may be imposed by this 
rule, has been submitted to OMB for approval.
    Title: Paper and Paper-Based Packaging Promotion, Research and 
Information (Referendum Procedures).
    OMB Number: 0581-NEW.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in the request 
are essential to carry out the intent of the 1996 Act. The information 
collection concerns a proposal received by USDA for a national research 
and promotion program for paper and paper-based packaging. The program 
would be financed by an assessment on manufacturers and importers and 
would be administered by a board of industry members selected by the 
Secretary. The program would exempt manufacturers and importers who 
produce or import less than 100,000 short tons of paper and paper-based 
packaging annually. A referendum would be held among eligible 
manufacturers and importers to determine whether they favor 
implementation of the program prior to it going into effect. The 
purpose of the program would be to maintain and expand markets for 
paper and paper-based packaging.
    The information collection requirements in this rule concern the 
referendum that would be held to determine whether the program is 
favored by the industry. Current manufacturers or importers that 
manufactured or imported 100,000 short tons or more of paper and paper-
based packaging during the representative period would be eligible to 
vote in the referendum. The ballot would be completed by eligible 
manufacturers and importers who want to indicate whether or not they 
support implementation of the program.

Referendum Ballot

    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.25 hour per application.
    Respondents: Manufacturers and importers.
    Estimated Number of Respondents: 70 (51 manufacturers and 19 
importers).
    Estimated Number of Responses per Respondent: 1 every 7 years 
(0.14).
    Estimated Total Annual Burden on Respondents: 2.45 hours.
    The ballot would be added to the other information collections 
approved under OMB No. 0581-NEW.
    An estimated 70 respondents would provide information to the Board 
(51 manufacturers and 19 importers). The estimated cost of providing 
the information to the Board by respondents would be $80.85. This total 
has been estimated by multiplying 2.45 total hours required for 
reporting and recordkeeping by $33, the average mean hourly earnings of 
various occupations involved in keeping this information. Data for 
computation of this hourly rate was obtained from the U.S. Department 
of Labor statistics.
    The proposed Order's provisions have been carefully reviewed, and 
every effort has been made to minimize any unnecessary recordkeeping 
costs or requirements, including efforts to utilize information already 
submitted under other programs administered by USDA and other state 
programs.

Request for Public Comment Under the Paperwork Reduction Act

    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of functions of the 
proposed Order and USDA's oversight of the proposed Order, including 
whether the information would have practical utility; (b) the accuracy 
of USDA's estimate of the burden of the proposed collection of 
information, including the validity of the methodology and assumptions 
used; (c) the accuracy of USDA's estimate of the principal 
manufacturing areas in the United States for paper and paper-based 
packaging; (d) the accuracy of USDA's estimate of the number of 
manufacturers and importers that would be covered under the program; 
(e) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (f) ways to minimize the burden of the 
collection of information on those who are to respond, including the 
use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0581-NEW. In 
addition, the docket number, date, and page number of this issue of the 
Federal Register also should be referenced. Comments should be sent to 
the same addresses referenced in the ADDRESSES section of this rule.
    A 60-day comment period is provided to allow interested persons to 
comment on this proposed information collection. All written comments 
received will be summarized and included in the request for OMB 
approval. All comments will also become a matter of public record.

List of Subjects in 7 CFR Part 1222

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Paper and Paper-Based Packaging, 
Promotion, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, it is proposed that 
Title 7, Chapter XI of the Code of Federal Regulations, as proposed to 
be amended elsewhere in this issue of the Federal Register, be further 
amended as follows:

[[Page 215]]

PART 1222--PAPER AND PAPER-BASED PACKAGING PROMOTION, RESEARCH AND 
INFORMATION ORDER

0
1. The authority citation for part 1222 continues to read as follows:

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

0
2. Subpart B of 7 CFR part 1222 is added to read as follows:
Subpart B--Referendum Procedures
Sec.
1222.100 General.
1222.101 Definitions.
1222.102 Voting.
1222.103 Instructions.
1222.104 Subagents.
1222.105 Ballots.
1222.106 Referendum report.
1222.107 Confidential information.
1222.108 OMB Control number.

Subpart B--Referendum Procedures


Sec.  1222.100  General.

    Referenda to determine whether eligible manufacturers and importers 
favor the issuance, continuance, amendment, suspension, or termination 
of the Paper and Paper-Based Packaging Promotion, Research and 
Information Order shall be conducted in accordance with this subpart.


Sec.  1222.101  Definitions.

    For the purposes of this subpart:
    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to delegate, or any officer or employee 
of the U.S. Department of Agriculture to whom authority has been 
delegated or may hereafter be delegated to act in the Administrator's 
stead.
    (b) Converted products means products made from paper and paper-
based packaging.
    (c) Customs or CBP means the U.S. Customs and Border Protection, an 
agency of the U.S. Department of Homeland Security.
    (d) 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.
    (e) Eligible manufacturer or producer means any person who is 
currently a manufacturer or producer and who manufactured 100,000 short 
tons or more of paper and paper-based packaging during the 
representative period.
    (f) Eligible importer means any person who is currently an importer 
and who imported 100,000 short tons or more of paper and paper-based 
packaging into the United States during the representative period as a 
principal or as an agent, broker, or consignee of any person who 
manufactured paper and paper-based packaging outside of the United 
States for sale in the United States, and who is listed as the importer 
of record for such paper and paper-based packaging. Importation occurs 
when paper and paper-based packaging manufactured outside of the United 
States is released from custody by Customs and introduced into the 
stream of commerce in the United States. Included are persons who hold 
title to foreign-manufactured paper and paper-based packaging 
immediately upon release by Customs, as well as any persons who act on 
behalf of others, as agents or brokers, to secure the release of paper 
and paper-based packaging from Customs when such paper and paper-based 
packaging is entered or withdrawn for use in the United States.
    (g) Kraft process means a process that transforms wood into a high 
quality strong pulp for making paper and paper-based packaging.
    (h) Linerboard means a grade of containerboard that is used as 
facing material in the manufacture of corrugated or solid fiber 
shipping boxes.
    (i) Manufacture or produce means the process of transforming pulp 
into paper and paper-based packaging.
    (j) Order means the Paper and Paper-Based Packaging Promotion, 
Research and Information Order.
    (k) Paper and paper-based packaging means:
    (1) Printing, writing and related paper, which is coated or 
uncoated paper that is subsequently converted into products used for 
printing, writing and other communication purposes, such as file 
folders, envelopes, catalogues, magazines and brochures. For purposes 
of this Order, printing, writing and related paper includes thermal 
paper but does not include carbonless paper;
    (2) Kraft packaging paper, which is coarse unbleached, semi-
bleached or fully bleached grades of paper that are subsequently 
converted into products such as grocery bags, multiwall sacks, waxed 
paper and other products;
    (3) Containerboard, which is all forms of linerboard and medium 
that is used to manufacture corrugated boxes, shipping containers and 
related products; and
    (4) Paperboard, which is solid bleached kraft board, recycled board 
and unbleached kraft board that is subsequently converted into a wide 
variety of end uses, including folding boxes, food and beverage 
packaging, tubes, cans, and drums, and other miscellaneous products. 
Paperboard does not include construction-related products such as 
gypsum wallboard facings and panel board.
    (5) For purposes of this Order, paper and paper-based packaging 
does not include tissue paper, newsprint or converted products.
    (l) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term ``partnership'' includes, but 
is not limited to:
    (1) A husband and a wife who have title to, or leasehold interest 
in, a paper and paper-based packaging manufacturing entity as tenants 
in common, joint tenants, tenants by the entirety, or, under community 
property laws, as community property; and
    (2) So called ``joint ventures'' wherein one or more parties to an 
agreement, informal or otherwise, contributed land, facilities, 
capital, labor, management, equipment, or other services, or any 
variation of such contributions by two or more parties, so that it 
results in the manufacturing or importation of paper and paper-based 
packaging and the authority to transfer title to the paper and paper-
based packaging so manufactured or imported.
    (m) Referendum agent or agent means the individual or individuals 
designated by the Secretary to conduct the referendum.
    (n) Representative period means the period designated by the 
Department.
    (o) Short ton or ton means a measure of weight equal to 2,000 
pounds.
    (p) United States means collectively the 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.  1222.102  Voting.

    (a) Each eligible manufacturer and importer of paper and paper-
based packaging shall be entitled to cast only one ballot in the 
referendum. However, each manufacturer in a landlord/tenant 
relationship or a divided ownership arrangement involving totally 
independent entities cooperating only to manufacture paper and paper-
based manufacturing, in which more than one of the parties is a 
manufacturer or importer, shall be entitled to cast one ballot in the 
referendum covering only such manufacturer or importer's share of 
ownership.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate manufacturer or importer, or

[[Page 216]]

an administrator, executor, or trustee of an eligible entity may cast a 
ballot on behalf of such entity. Any individual so voting in a 
referendum shall certify that such individual is an officer or employee 
of the eligible entity, or an administrator, executive, or trustee of 
an eligible entity and that such individual has the authority to take 
such action. Upon request of the referendum agent, the individual shall 
submit adequate evidence of such authority.
    (c) A single entity who manufactures and imports paper and paper-
based manufacturing may cast one vote in the referendum.
    (d) All ballots are to be cast by mail or other means, as 
instructed by the Department.


Sec.  1222.103  Instructions.

    The referendum agent shall conduct the referendum, in the manner 
provided in this subpart, under the supervision of the Administrator. 
The Administrator may prescribe additional instructions, consistent 
with the provisions of this subpart, to govern the procedure to be 
followed by the referendum agent. Such agent shall:
    (a) Determine the period during which ballots may be cast;
    (b) Provide ballots and related material to be used in the 
referendum. The ballot shall provide for recording essential 
information, including that needed for ascertaining whether the person 
voting, or on whose behalf the vote is cast, is an eligible voter;
    (c) Give reasonable public notice of the referendum:
    (1) By using available media or public information sources, without 
incurring advertising expense, to publicize the dates, places, method 
of voting, eligibility requirements, and other pertinent information. 
Such sources of publicity may include, but are not limited to, print 
and radio; and
    (2) By such other means as the agent may deem advisable.
    (d) Mail to eligible manufacturers and importers whose names and 
addresses are known to the referendum agent, the instructions on 
voting, a ballot, and a summary of the terms and conditions of the 
proposed Order. No person who claims to be eligible to vote shall be 
refused a ballot;
    (e) At the end of the voting period, collect, open, number, and 
review the ballots and tabulate the results in the presence of an agent 
of a third party authorized to monitor the referendum process;
    (f) Prepare a report on the referendum; and
    (g) Announce the results to the public.


Sec.  1222.104  Subagents.

    The referendum agent may appoint any individual or individuals 
necessary or desirable to assist the agent in performing such agent's 
functions of this subpart. Each individual so appointed may be 
authorized by the agent to perform any or all of the functions which, 
in the absence of such appointment, shall be performed by the agent.


Sec.  1222.105  Ballots.

    The referendum agent and subagents shall accept all ballots cast. 
However, if an agent or subagent deems that a ballot should be 
challenged for any reason, the agent or subagent shall endorse above 
their signature, on the ballot, a statement to the effect that such 
ballot was challenged, by whom challenged, the reasons therefore, the 
results of any investigations made with respect thereto, and the 
disposition thereof. Ballots invalid under this subpart shall not be 
counted.


Sec.  1222.106  Referendum report.

    Except as otherwise directed, the referendum agent shall prepare 
and submit to the Administrator a report on the results of the 
referendum, the manner in which it was conducted, the extent and kind 
of public notice given, and other information pertinent to the analysis 
of the referendum and its results.


Sec.  1222.107  Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the vote of any person covered under the Order and the voter 
list shall be strictly confidential and shall not be disclosed.


Sec.  1222.108  OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. is OMB 
control number 0581-NEW.

    Dated: December 18, 2012.
David R. Shipman,
Administrator.
[FR Doc. 2012-30915 Filed 12-31-12; 8:45 am]
BILLING CODE 3410-02-P