This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

49485 

Vol. 82, No. 206 

Thursday, October 26, 2017 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1217 

[Document Number AMS–SC–16–0066] 

Softwood Lumber Research, 

Promotion, Consumer Education and 

Industry Information Order; De Minimis 

Quantity Exemption Threshold 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes a de 

minimis quantity exemption threshold 

under the U.S. Department of 

Agriculture’s (USDA) Agricultural 

Marketing Service (AMS) regulations 

regarding a national research and 

promotion program for softwood 

lumber. In response to a 2016 federal 

district court decision, the U.S. 

Department of Agriculture (USDA) 

conducted a new analysis to determine 

a reasonable and appropriate de 

minimis threshold. Based on that 

analysis, this rule establishes the de 

minimis quantity threshold at 15 

million board feet (mmbf) and entities 

manufacturing (and domestically 

shipping) or importing less than 15 

mmbf per year will be exempt from 

paying assessments under the 

regulations. 

DATES: Effective Date: November 27, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Maureen T. Pello, Marketing Specialist, 

Promotion and Economics Division, 

Specialty Crops 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, 

affecting 7 CFR part 1217, is authorized 

under the Commodity Promotion, 

Research and Information Act of 1996 

(1996 Act) (7 U.S.C. 7411–7425). 

Executive Order 12866 and Executive 

Order 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules and promoting 

flexibility. This action falls within a 

category of regulatory actions that the 

Office of Management and Budget 

(OMB) exempted from Executive Order 

12866 review. Additionally, because 

this rule does not meet the definition of 

a significant regulatory action it does 

not trigger the requirements contained 

in Executive Order 13771. See OMB’s 

Memorandum titled ‘‘Interim Guidance 

Implementing Section 2 of the Executive 

Order of January 30, 2017, titled 

‘Reducing Regulation and Controlling 

Regulatory Costs’ ’’ (February 2, 2017). 

Executive Order 13175 

This action has been reviewed in 

accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The review reveals that 

this rule will not have substantial and 

direct effects on Tribal governments and 

will not have significant Tribal 

implications. 

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 (7 U.S.C. 7423) 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 (7 

U.S.C. 7418), 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 a de minimis 

quantity exemption threshold under the 

Softwood Lumber Research, Promotion, 

Consumer Education and Industry 

Information Order (Order), codified at 7 

CFR part 1217. This part is administered 

by the Softwood Lumber Board (Board) 

with oversight by USDA’s Agricultural 

Marketing Service (AMS). In Resolute 

Forest Products Inc., v. USDA, et al. 

(Resolute), the court found that, on the 

basis of the estimates and information 

submitted by the government to the 

court for review, the selection of 15 

mmbf as the de minimis quantity (to be 

exempted) under part 1217 was 

arbitrary and capricious and that part 

1217 was therefore promulgated 

unlawfully. The court did not vacate (or 

terminate) part 1217; the court 

remanded the matter to USDA and 

program requirements remain in effect. 

To address the court’s decision, 

USDA conducted a new analysis to 

determine a reasonable and appropriate 

de minimis quantity exemption. USDA 

analyzed various thresholds of 

exemption: 10, 15, 20, 25, and 30 mmbf. 

USDA also considered proposing no de 

minimis exemption. USDA’s analysis of 

the data resulted in a determination that 

a de minimis level of 15 mmbf is 

reasonable and appropriate. The 

analysis was published in a proposed 

rule on May 30, 2017 (82 FR 24583). 

This final rule establishes the de 

minimis quantity threshold under part 

1217 at 15 mmbf. 

Authority in the 1996 Act 

The 1996 Act authorizes USDA to 

establish agricultural commodity 

research and promotion orders which 

may include a combination of 

promotion, research, industry 


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1USDA notes that the de minimis level and the 

equity exemption are purposefully aligned and any 

change in the de minimis would result in a 

corresponding modification to the equity 

exemption. 

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. Section 516 states that an order 

may include an exemption of de 

minimis quantities of an agricultural 

commodity. Further, section 516(g) of 

the 1996 Act provides authority for 

other action that is consistent with the 

purpose of the statute and necessary to 

administer a program. 

Overview of the Softwood Lumber 

Program 

The softwood lumber program took 

effect in August 2011 (76 FR 46185) and 

assessment collection began in January 

2012. Under part 1217, assessments are 

collected from domestic (U.S.) 

manufacturers and importers and are 

used by the Board for projects that 

promote market growth for softwood 

lumber products used in single and 

multi-family dwellings as well as 

commercial construction. The Board is 

composed of 19 industry members 

(domestic manufacturers and importers) 

who are appointed by the Secretary of 

Agriculture. 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. 

Relevant Order Provisions 

Domestic Manufacturers 

The term ‘domestic manufacturer’ is 

defined in § 1217.8 to mean any person 

who is a first handler 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. The term does not 

include persons who re-manufacture 

softwood lumber that has already been 

subject to assessment. The term 

‘manufacture’ is defined in § 1217.13 to 

mean the process of transforming (or 

turning) softwood logs into softwood 

lumber. 

Domestic manufacturers are 

essentially sawmills that turn softwood 

logs into lumber. A domestic 

manufacturer may be a company that is 

a single sawmill, or it may be a 

company that is composed of multiple 

sawmills. 

Importers 

The term ‘importer’ is defined in 

§ 1217.11 to mean 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. Import records 

are maintained by the U.S. Customs and 

Border Protection (Customs or CBP). 

Both domestic manufacturers and 

importers may be referred to in this 

rulemaking as ‘‘entities.’’ 

Expenses and Assessments 

Pursuant to § 1217.50, the Board is 

authorized to incur expenses for 

research and promotion projects as well 

as administration. The Board’s expenses 

are paid by assessments upon domestic 

manufacturers and importers. Pursuant 

to § 1217.52(b), and subject to the 

exemptions specified in § 1217.53, each 

domestic manufacturer and importer 

must pay an assessment to the Board at 

the rate of $0.35 per thousand board feet 

of softwood lumber, except that no 

entity has to pay an assessment on the 

first 15 mmbf of softwood lumber 

otherwise subject to assessment in a 

fiscal year. Domestic manufacturers pay 

assessments based on the volume of 

softwood lumber shipped within the 

United States and importers pay 

assessments based on the volume of 

softwood lumber imported to the United 

States. Pursuant to paragraphs (d) and (j) 

in § 1217.52, respectively, domestic 

manufacturers and importers who pay 

their assessments to the Board must do 

so no later than the 30th calendar day 

of the month following the end of the 

quarter in which the softwood lumber 

was shipped or imported. 

Exemptions 

Section 1217.53 prescribes 

exemptions from assessment. Pursuant 

to paragraph (a) of that section, the 

original de minimis quantity exemption 

threshold under part 1217 was 15 mmbf. 

Thus, U.S. manufacturers and importers 

that domestically ship and/or import 

less than 15 mmbf feet annually have 

been exempt from paying assessments. 

Domestic manufacturers and importers 

that ship or import less than the de 

minimis quantity of softwood lumber 

must apply to the Board each year for 

a certificate of exemption and provide 

documentation as appropriate to 

support their request. 

Pursuant to paragraph (b) of 

§ 1217.53, domestic manufacturers and 

importers that ship or import 15 mmbf 

or more annually do not pay 

assessments on their first 15 mmbf 

domestically shipped or imported. This 

exemption is intended for the purpose 

of creating an equality amongst those 

within the industry with regard to the 

program’s assessment. Just as those that 

manufacture or import under 15 mmbf 

do not have to pay assessments, those at 

or above this level may reduce their 

assessable volume by 15 mmbf.1 For 

example, an entity that ships or imports 

20 mmbf annually only has to pay 

assessments on 5 mmbf of softwood 

lumber. This exemption creates fairness; 

it levels the playing field because all 

entities, regardless of size, do not have 

to pay assessments on their first 15 

mmbf shipped or imported. For 

purposes of this document, this 

exemption is referred to as the ‘‘equity 

exemption.’’ Pursuant to paragraphs (c) 

and (d) of § 1217.53, respectively, 

exports of softwood lumber from the 

United States and organic softwood 

lumber are also exempt from 

assessment. 

Reports and Records 

Pursuant to § 1217.70, domestic 

manufacturers and importers who pay 

their assessments directly to the Board 

must submit with their payment a report 

that specifies the quantity of softwood 

lumber domestically shipped or 

imported. Pursuant to § 1217.71, all 

domestic manufacturers and importers 

must maintain books and records 

necessary to verify reports for a period 

of 2 years beyond the fiscal year to 

which they apply, including those 

exempt. These records must be made 

available during normal business hours 

for inspection by Board staff or USDA. 

Other Relevant Order Provisions 

The original 15 mmbf quantity 

exemption threshold is referenced in 

other Order provisions. Section 1217.40 

specifies that the Board is composed of 

domestic manufacturers and importers 

who domestically ship or import 15 

mmbf or more of softwood lumber 

annually. Section 1217.41 specifies that 


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2 If the assessment rate changes significantly, 

USDA could revisit the de minimis threshold. 

3A sawmill’s operating capacity is the total 

amount of softwood lumber that it could 

manufacture (or produce) if fully utilizing all of its 

resources (such as labor and equipment). 

persons interested in serving on the 

Board must also domestically ship or 

import 15 mmbf or more softwood 

lumber annually. Finally, § 1217.101 

regarding referendum procedures 

specifies that eligible domestic 

manufacturers and importers that can 

vote in referenda must domestically 

ship or import 15 mmbf or more of 

softwood lumber annually. 

Initial Referendum and Summary of 

Board Activities 

The softwood lumber program was 

implemented after notice and comment 

rulemaking and a May 2011 referendum 

demonstrating strong support for the 

program. Pursuant to § 1217.81(a), the 

program had to pass by a majority of 

those voting in the referendum who also 

represented a majority of the volume 

voted. Sixty-seven percent of the 

entities who voted, who together 

represented 80 percent of the volume, in 

the referendum favored implementation 

of the program. Entities that 

domestically shipped or imported 15 

mmbf or more of softwood lumber 

annually were eligible to vote in the 

referendum. As previously mentioned, 

the program took effect in August 2011 

and assessment collection began in 

January 2012. 

The softwood lumber program has 

continued to operate at the 15 mmbf 

exemption threshold since its inception. 

During these years, the Board has 

funded a variety of activities designed to 

increase the demand for softwood 

lumber. The Board funded a U.S. Tall 

Wood Building Prize Competition that 

is helping to showcase the benefits of 

building tall structures with wood. The 

Board also funds research on wood 

standards; a communications program, 

which includes continuing education 

courses for architects and engineers; and 

a construction and design program that 

provides technical support to architects 

and structural engineers about using 

wood. 

Summary of USDA’s Analysis of the De 

Minimis Quantity Under the Softwood 

Lumber Program 

The Secretary has authority under 

section 516 of the 1996 Act to exempt 

any de minimis quantity of an 

agricultural commodity otherwise 

covered by an order: ‘‘An order issued 

under this subchapter may contain . . . 

authority for the Secretary to exempt 

from the order any de minimis quantity 

of an agricultural commodity otherwise 

covered by the order. . . .’’ 7 U.S.C. 

7415(a). A de minimis quantity 

exemption allows an industry to exempt 

from assessment small entities that 

could be unduly burdened from an 

order’s requirements (i.e., assessment 

and quarterly reporting obligations). 

Because the 1996 Act does not prescribe 

the methodology or formula for 

computing a de minimis quantity, the 

Secretary has discretion to determine a 

reasonable and appropriate quantity and 

establish this level through notice and 

comment rulemaking. Pursuant to 

section 525 of the 1996 Act, 7 U.S.C. 

7424, the Secretary may issue such 

regulations as may be necessary to carry 

out an order. 

In evaluating the merits of a de 

minimis quantity for the softwood 

lumber program, USDA considered 

several factors. These factors include: an 

estimate of the total quantity of 

softwood lumber covered under part 

1217 (quantity assessed and quantity 

exempted); available funding to support 

a viable program; free rider 

implications; and the impact of program 

requirements on entities (above and 

below a de minimis threshold). USDA 

reviewed such factors in light of all 

available data and information to 

determine whether a de minimis 

quantity is reasonable. USDA balanced 

the multiple factors to assess whether 

one exemption threshold would work 

better than another when the factors are 

considered collectively. The analysis 

was based on the current assessment 

rate of $0.35 per thousand board feet.2

The following tables are republished 

from USDA’s analysis of the de minimis 

quantity under the softwood lumber 

program contained in the May 2017 

proposed rule (82 FR 24583). 

Table 1 shows the estimate of the 

supply of U.S. softwood lumber used in 

the analysis, accounting for both U.S. 

shipments and imports. U.S. shipments 

were estimated using capacity3 data 

from Forest Economic Advisors (FEA). 

Total imports was estimated using data 

from CBP. 

TABLE 1—SUPPLY OF SOFTWOOD

LUMBER IN THE U.S. (MMBF) 

Shipments 1 Imports 2 Supply 3

28,754 ............... 12,495 41,249 

1FEA; 2 CBP; 3The sum of U.S. Shipments 

and Imports. 

Table 2 shows assessable volume and 

revenue at exemption levels of 30, 25, 

20, 15 and 10 mmbf, as well as with no 

exemptions. The table accounts for both 

the de minimis and equity exemptions 

under part 1217, and an assessment rate 

of $0.35 per thousand board feet. 

TABLE 2—ASSESSABLE VOLUME AND ASSESSMENT REVENUE AT EXEMPTION LEVELS (MMBF) 1

Volume equal to or greater than 

De minimis 

exemption 

only 

De minimis 

and equity 

exemptions 

Assessment 

revenue 

($) 2

30 ................................................................................................................................................. 37,965 32,805 $11,481,698 

25 ................................................................................................................................................. 38,319 33,694 11,792,941 

20 ................................................................................................................................................. 38,990 34,690 12,141,349 

15 ................................................................................................................................................. 39,679 35,854 12,548,792 

10 ................................................................................................................................................. 40,013 37,183 13,014,059 

No exemptions ............................................................................................................................. 41,249 41,249 14,437,099 

1 2015 data from FEA and CBP were used to construct this table. 

2The product of total assessable volume, accounting for both de minimis and equity exemptions, and the assessment rate of $0.35 per thousand board feet. 


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4Prime Consulting, Softwood Lumber Board, 

Comprehensive Program ROI, 2012–2015, February 

2016. 

5As stated previously, the de minimis level and 

the equity exemption are purposefully aligned, and 

therefore this conclusion accounts for the equity 

exemption at 15 mmbf. 

6https://www.sba.gov/contracting/getting-startedcontractor/make-sure-you-meet-sba-size-standards/ 

small-business-size-regulations. 

7SBA does have a small business size standard 

for ‘‘Sawmills’’ of 500 employees (see https://

www.sba.gov/sites/default/files/files/Size_

Standards_Table.pdf). Based on USDA’s 

understanding of the lumber industry, using this 

Table 3 is the inverse of Table 2 in 

that it shows exempt volume at de 

minimis and equity exemptions of 30, 

25, 20, 15 and 10 mmbf. 

TABLE 3—EXEMPT VOLUME AT EXEMPTION LEVELS (MMBF) 1

Volume less than 

De minimis exemption only De minimis and equity 

exemptions 

Volume % Exempt 2

Volume % Exempt 2

30 ..................................................................................................................... 3,284 8 8,444 20 

25 ..................................................................................................................... 2,930 7 7,555 18 

20 ..................................................................................................................... 2,259 5 6,559 16 

15 ..................................................................................................................... 1,570 4 5,395 13 

10 ..................................................................................................................... 1,236 3 4,066 10 

1 2015 data from FEA and CBP were used to construct this table. 

2The quotient of total exempt volume and total 2015 U.S. supply (the sum of U.S. shipments and U.S. imports) of 41,249 MMBF. 

Table 4 shows the number of entities 

(domestic manufacturers and importers) 

that would be assessed and the number 

of entities that would be exempt at the 

exemption thresholds of 30, 25, 20, 15 

and 10 mmbf. 

TABLE 4—ASSESSED AND EXEMPT ENTITIES AT EXEMPTION LEVELS (MMBF) 1

Volume (MMBF) 

Assessed Exempt 

Number of 

entities % Assessed 2 Number of entities % Exempt 2

30 ..................................................................................................................... 172 16 882 84 

25 ..................................................................................................................... 185 18 869 82 

20 ..................................................................................................................... 215 20 839 80 

15 ..................................................................................................................... 255 24 799 76 

10 ..................................................................................................................... 283 26 771 73 

None ................................................................................................................ 1,054 100 ........................ 0 

1 2015 data from FEA and CBP were used to construct this table. 

2The quotient of No. of Entities and total domestic manufacturers and importers recorded in the industry (1,054) in 2015. 

Based on its analysis, USDA 

determined the following: Exemption 

thresholds of 10 to 15 mmbf would 

exempt 10 to 13 percent of the total 

volume of softwood lumber (taking into 

account both the de minimis and equity 

exemptions). This is close to the range 

exempt under other research and 

promotion programs. While all of the 

exemption thresholds analyzed would 

generate sufficient revenue for a viable 

program, the additional revenue that 

could be collected if the de minimis 

level were reduced much lower than 15 

mmbf would likely not be worth the 

additional costs. At this threshold, free 

rider implications would be minimal 

because only 4 percent of the volume of 

softwood lumber would be exempted as 

de minimis. Applying both the de 

minimis and equity exemptions at 15 

mmbf would allow the program to 

assess almost 90 percent of the total 

volume of softwood lumber. 

Further, the program functioned 

successfully in 2015 with assessment 

revenue of $12.905 million with de 

minimis and equity exemptions of 15 

mmbf. The Board has conducted 

activities at this level of funding that 

have helped build demand for softwood 

lumber, including a prize competition 

for tall wood buildings, research on 

wood standards, and an education 

program for architects and engineers on 

building with wood. An independent 

evaluation completed in 2016 

concluded that activities of the Board 

increased sales of softwood lumber 

between 2011 and 2015 by 1.683 bbf or 

$596 million. This equates to a return 

on investment of $15.55 of additional 

sales for every $1 spent on promotion by 

the Board.4

Therefore, when considering all of the 

factors collectively, USDA concludes 

that 15 mmbf is a reasonable and most 

appropriate de minimis quantity under 

part 1217.5 Accordingly, this rule 

establishes the de minimis quantity 

threshold under part 1217 at 15 mmbf. 

Thus, no amendment to part 1217 is 

necessary. 

Final 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 final rule on small 

entities as defined by the Small 

Business Administration (SBA). The 

classification of a business as small, as 

defined by the SBA, varies by industry. 

If a business is defined as ‘‘small’’ by 

SBA size standards, then it is ‘‘eligible 

for government programs and 

preferences reserved for ‘small business’ 

concerns.’’ 6 Accordingly, AMS has 

considered the economic impact of this 

action on such 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 SBA 

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 $7.5 million.7


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criteria would be impractical as sawmills often use 

contractors rather than employees to operate and, 

therefore, many mills would fall under this criteria 

while being, in reality, a large business. Therefore, 

USDA used agricultural service firm as a more 

appropriate criteria for this analysis. 

8Random Lengths Publications, Inc.; 

www.randomlengths.com. 

Using an average price of $330 per 

thousand board feet,8 a domestic 

manufacturer or importer who ships less 

than about 23 mmbf per year would be 

considered a small entity for purposes 

of the RFA. As shown in Table 4, there 

were 1,054 domestic manufacturers and 

importers of softwood lumber based on 

2015 data. Of these, 864 entities shipped 

or imported less than 23 mmbf and 

would be considered to be small entities 

under the SBA definition. Thus, based 

on the $7.5 million threshold, the 

majority of domestic manufacturers and 

importers of softwood lumber would be 

considered small entities for purposes of 

the RFA. 

This action establishes a de minimis 

quantity exemption threshold under 

part 1217. Part 1217 is administered by 

the Board with oversight by USDA. In 

response to a federal district court 

decision in Resolute, USDA conducted 

a new analysis to determine a 

reasonable and appropriate de minimis 

threshold. Based on this analysis, this 

final rule establishes the de minimis 

quantity threshold at 15 mmbf and 

entities manufacturing (and 

domestically shipping) or importing less 

than 15 mmbf per year would be exempt 

from paying assessments under part 

1217. Authority for this action is 

provided in sections 516(a)(2), 516(g) 

and 525 of the 1996 Act. 

Regarding the economic impact of the 

de minimis exemption, the exemption 

allows the Board to exempt from 

assessment small entities that would be 

unduly burdened by the program’s 

obligations. At the 15 mmbf exemption 

threshold, small manufacturers and 

importers that domestically ship or 

import less than 15 mmbf of softwood 

lumber will not have to pay assessments 

under the program. 

Additionally, larger manufacturers 

and importers will not have to pay 

assessments on the first 15 mmbf of 

softwood lumber domestically shipped 

or imported each year. This exemption 

is intended for the purpose of equity, 

whereby all entities who must pay 

assessments may reduce their assessable 

volume by 15 mmbf. This exemption 

benefits smaller manufacturers and 

importers whose annual shipments or 

imports are above the de minimis 

threshold of 15 mmbf. With this 

exemption, an entity that ships or 

imports a quantity of softwood lumber 

equal to the RFA-small business 

definition of 23 mmbf, would only pay 

assessments on no more than 8 mmbf of 

softwood lumber. 

To calculate the impact of the 

assessment rate on the revenue of an 

assessment payer, the assessment rate is 

divided by an average price. Using an 

average 2015 price of $330 per thousand 

board feet, the assessment rate as a 

percentage of price could range from 

0.106 percent at the current assessment 

rate to 0.151 percent at the maximum 

assessment rate. This analysis helps 

identify the impact of the assessment 

rate on the revenues of assessment 

payers. At the current assessment rate of 

$0.35 per thousand board feet to the 

maximum assessment rate of $0.50 per 

thousand board feet, assessment payers 

would owe between 0.106 percent and 

0.151 percent of their revenues, 

respectively. 

In its analysis of alternatives, USDA 

evaluated five different exemption 

thresholds—30, 25, 20, 15 and 10 mmbf 

using 2015 data—accounting for both 

the de minimis and equity exemptions, 

as well as having no exemptions under 

the program. USDA evaluated these 

alternatives based on the following 

factors: an estimate of quantity of 

softwood lumber covered under the 

program (quantity assessed and quantity 

exempted); available funding to support 

a viable program; free rider 

implications; and the impact of program 

requirements on entities (above and 

below a de minimis threshold). USDA 

conducted a balancing test among these 

factors to assess whether one exemption 

threshold works better than another 

when the factors are considered 

collectively. 

In reviewing the quantity of 

assessable versus exempt softwood 

lumber at the alternative exemption 

thresholds, USDA found that at an 

exemption threshold of 30 mmbf, a total 

of 32.805 bbf would be assessed with 

3.284 bbf, or 8 percent, exempt as de 

minimis, plus an additional 5.16 bbf 

exempt as equity for 20 percent of total 

volume exempt; at 25 mmbf, a total of 

33.694 bbf would be assessed with 2.93 

bbf, or 7 percent, exempt as de minimis, 

plus an additional 4.625 bbf exempt as 

equity for 18 percent total volume 

exempt; at a threshold of 20 mmbf, a 

total of 34.69 bbf would be assessed 

with 2.259 bbf, or 5 percent, exempt as 

de minimis, plus an additional 4.3 bbf 

exempt as equity for 16 percent total 

volume exempt; at a threshold of 15 

mmbf, a total of 35.854 bbf would be 

assessed with 1.57 bbf, or 4 percent, 

exempt as de minimis, plus an 

additional 3.825 bbf exempt as equity 

for 13 percent total volume exempt; at 

a threshold of 10 mmbf, a total of 37.183 

bbf would be assessed, with 1.236 bbf, 

or 3 percent, exempt as de minimis, 

plus an additional 2.83 bbf exempt as 

equity for 10 percent total volume 

exempt; and with no exemptions, a total 

of 41.249 bbf would be assessed. In 

reviewing the total volume exempt 

under the softwood lumber program 

(taking into account both the de 

minimis and equity exemptions), 

thresholds of 10 to 15 mmbf exempt 

between 10 and 13 percent of the 

volume, which is close to the range 

exempt under other programs. 

In reviewing available funding to 

support a viable program at the 

alternative exemption thresholds, at an 

exemption threshold of 30 mmbf, 

estimated assessment revenue is 

$11.482 million; at 25 mmbf, estimated 

assessment revenue is $11.793 million 

(an additional $311,243); at a threshold 

of 20 mmbf, estimated assessment 

revenue is $12.141 million (an 

additional $348,408); at a threshold of 

15 mmbf, estimated assessment revenue 

is $12.549 million (an additional 

$407,444); at a threshold of 10 mmbf, 

estimated assessment revenue is 

$13.014 million (an additional 

$465,267); and with no exemptions, 

estimated assessment revenue is 

$14.437 million (an additional $1.423 

million). 

Assessment revenue under the current 

softwood lumber program has ranged 

from about $10.638 million in 2012 to 

$12.905 million in 2015. At this level of 

revenue, the current program has seen 

success. The revenues reviewed at the 

different exemption thresholds are 

comparable to these levels or higher. 

Thus, all of the exemption thresholds 

analyzed would generate sufficient 

revenue for a viable program. 

Regarding free riders, USDA notes 

that the key to assessing the free rider 

implications of a de minimis quantity is 

not the number of entities exempt under 

a program but rather the volume of 

product exempt. This is because 

assessments are based on volume 

shipped or imported and not on the 

number of entities; assessments are not 

paid by entities on a pro rata basis. In 

evaluating free rider implications at the 

alternative exemption thresholds, at an 

exemption threshold of 30 mmbf, 84 

percent of the number of entities (or 

882) would be exempt but only 8 

percent of the volume would be exempt 

as de minimis; at a threshold of 25 

mmbf, 82 percent of the number of 

entities (or 869) would be exempt, but 

only 7 percent of the volume would be 

exempt as de minimis; at a threshold of 

20 mmbf, 80 percent of the number of 

entities (or 839) would be exempt, but 


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9This figure is computed by dividing the 

estimated cost to pursue a compliance case against 

an entity of $5,000 by the assessment rate of $0.35 

per thousand board feet. 

10An independent evaluation of the softwood 

lumber program showed that the activities of the 

Board increased sales of softwood lumber between 

2011 and 2015 by 1.683 bbf or $596 million. This 

equates to a return on investment of $15.55 of 

additional sales for every $1 spent on promotion by 

the Board. By this metric, part 1217 to date has been 

effective. USDA therefore finds that 15 mmbf is a 

reasonable exemption level for de minimis. 

only 5 percent of the volume would be 

exempt as de minimis; at a threshold of 

15 mmbf, 76 percent of the number of 

entities (or 799) would be exempt, but 

only 4 percent of the volume would be 

exempt as de minimis; and at a 

threshold of 10 mmbf, 73 percent of the 

number of entities (or 771) would be 

exempt, but only 3 percent of the 

volume would be exempt as de minimis. 

In evaluating the impact of the 

program’s requirements at the 

alternative exemption thresholds, 

entities that ship or import at or above 

the de minimis threshold must pay 

assessments to the Board. Assessment 

payers must also submit a report to the 

Board each quarter of the volume of 

softwood lumber shipped or imported 

for the respective quarter. Entities that 

ship or import below the de minimis 

threshold must apply to the Board each 

year for a certificate of exemption and 

provide documentation as appropriate 

to support their request. The reporting 

and recordkeeping requirements are 

detailed in the section below titled 

Paperwork Reduction Act. 

At an exemption threshold of 30 

mmbf, 172 entities would pay 

assessments and 882 would be exempt; 

at 25 mmbf, 185 entities would pay 

assessments and 869 would be exempt; 

at 20 mmbf, 215 entities would pay 

assessments and 839 would be exempt; 

at 15 mmbf, 255 entities would pay 

assessments and 799 would be exempt; 

at 10 mmbf, 283 entities would pay 

assessments and 771 would be exempt. 

Thus, as the exemption threshold is 

reduced, more entities would be subject 

to the assessment and quarterly 

reporting obligation under part 1217. 

Further, in considering program 

compliance costs, USDA estimates the 

cost of an on-site audit of a single entity 

at $5,000 or more. Thus, the cost to 

pursue a compliance case against an 

entity that shipped less than 10 mmbf, 

9 mmbf for example, would outweigh 

the revenue that would be collected 

from that entity of $3,150. Similarly, the 

assessment revenue that would be 

collected from an entity that shipped 

less than 15 mmbf, 12 mmbf for 

example, would amount to $4,200. The 

benefit of assessing smaller 

manufacturers, $3,150 at 9 mmbf and 

$4,200 at 12 mmbf, does not outweigh 

the cost of pursuing compliance cases 

against them at $5,000 per entity. The 

point at which the assessment revenue 

that would be collected from an entity 

outweighs the estimated cost of $5,000 

to pursue a compliance case is an entity 

with volume equal to or greater than 

14.3 mmbf.9 This level is close to 15 

mmbf. By this analysis, the selection of 

15 mmbf as the de minimis quantity is 

reasonable. 

Analysis of the 23 mmbf–RFA small 

business threshold as a reasonable 

option for de minimis shows that 190 

entities would be subject to assessment 

and 864 entities would be exempt. In 

terms of volume, 38.44 bbf would be 

assessed, or 93 percent of total volume, 

and 2.809 bbf would be exempt, or 7 

percent of total volume. 

Based upon the analysis contained 

herein, any of the exemption thresholds 

reviewed would be reasonable because 

they would exempt from 3 to 8 percent 

of the volume of softwood lumber as de 

minimis. However, when the total 

volume exempt under the softwood 

lumber program is considered (taking 

into account both the de minimis and 

equity exemptions), thresholds of 10 to 

15 mmbf exempt between 10 and 13 

percent of the volume, which is close to 

the range exempt under other programs. 

While all of the exemption thresholds 

analyzed would generate sufficient 

revenue for a viable program, the 

additional revenue that could be 

collected if the de minimis level were 

reduced much lower than 15 mmbf 

would likely not be worth the additional 

costs. The softwood lumber program 

operated successfully since its inception 

at an exemption threshold of 15 mmbf.10

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the information collection 

and recordkeeping requirements 

imposed by part 1217 have been 

approved previously under OMB 

control number 0581–0093. This rule 

imposes no additional reporting and 

recordkeeping burden on domestic 

manufacturer and importers of softwood 

lumber. The reporting requirements 

pertaining to this rule are described in 

the following paragraphs. 

As previously mentioned, pursuant to 

§ 1217.53(a), domestic manufacturers 

and importers who domestically ship or 

import less than the de minimis 

threshold must apply to the Board each 

year for a certificate of exemption and 

provide documentation as appropriate 

to support their request. The reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

domestic manufacturer or importer per 

report, or 0.25 hours per year (1 request 

per year per exempt entity). This 

computes to a total annual burden of 

199.75 hours (0.25 hours times 799 

exempt entities at the 15 mmbf de 

minimis exemption threshold from 

Table 4). 

Further, pursuant to § 1217.70, 

domestic manufacturers and importers 

that ship or import at or over the de 

minimis exemption level and pay their 

assessments directly to the Board must 

submit a shipment/import report for 

each quarter when assessments are due. 

The reporting burden for this collection 

of information is estimated to average 

0.5 hours per domestic manufacturer or 

importer per report, or 2 hours per year 

(4 reports per year times 0.5 hours per 

report). This computes to a total annual 

burden of 510 hours (255 assessed 

entities (from Table 4—No. of Assessed 

Entities at 15 mmbf) at 2 hours each 

equals 510 hours). 

All domestic manufacturers and 

importers must also maintain records 

sufficient to verify their reports. The 

recordkeeping burden for keeping this 

information is estimated to average 0.5 

hours per record keeper maintaining 

such records, or 527 hours (1,054 total 

entities assessed (from Table 4—No. of 

Assessed Entities at no exemption) 

times 0.5 hours). 

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. 

USDA 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 

initiated this action in response to a 

May 2016 federal court decision in 

Resolute. This rule establishes the de 

minimis quantity exemption under part 

1217. 

A proposed rule concerning this 

action was published in the Federal 

Register on May 30, 2017 (82 FR 24583). 

The Board distributed copies of the 

proposed rule via email to domestic 

manufacturers and importers. The 

proposal was also made available 

through the internet by USDA and the 


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Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Rules and Regulations 49491 

11For example, as explained in the May 2017 

proposed rule, if the thresholds for de minimis and 

equity exemptions were 10 mmbf, Company A that 

ships 8 mmbf annually would pay no assessments, 

and Company B that ships 30 mmbf annually would 

have to pay assessments on 20 mmbf of softwood 

lumber. At an assessment rate of $0.35 per thousand 

board feet, this would compute to $7,000 in 

assessments. Without the equity exemption, 

Company A would still pay no assessments but 

Company B would have to pay assessments on 30 

mmbf. This would compute to $10,500 in 

assessments, which is an additional burden of 

$3,500. Thus, the equity exemption reduces the 

burden of free riders on entities funding the 

program. It creates fairness because it exempts from 

assessment an equal volume from all entities, 

regardless of their size. 

Office of the Federal Register. A 60-day 

comment period ending July 31, 2017, 

was provided to allow interested 

persons to submit comments. 

Analysis of Comments 

Thirty-three comments were received 

in response to the proposed rule. Of 

those 33 comments, one was outside the 

scope of the rulemaking and the 

remaining 32 supported the 15 mmbf 

exemption threshold. The following is 

an analysis of those 32 comments. 

Several commenters reiterated the 

data presented in the proposed rule. 

They cited Table 3 which shows that, at 

the 15 mmbf threshold, entities that pay 

into the program account for 96 percent 

of the U.S. softwood lumber market 

volume. Thus, free rider concerns are 

minimal. Reducing the exemption level 

by a third (down to 10 mmbf) would 

only increase that number to 97 percent 

of the U.S. market and would not be 

worth the additional effort. There are a 

large number of small manufacturers 

and importers who account for a small 

percentage of the softwood lumber 

shipped in the United States. The 

commenters opined that the cost of 

collecting an assessment from such a 

large number of entities outweighs the 

revenue that could be collected from 

such a small amount of volume. They 

agreed that Board staff time would be 

better spent on promotion activities 

than trying to collect a small amount of 

revenue from several small entities. 

One commenter opined that the 

methodology used by USDA to 

determine the de minimis threshold was 

comprehensive and explored tradeoffs 

involved in setting a threshold below 

which it is counterproductive to the 

collection of assessments to further the 

program. The commenter stated that 

‘‘. . . USDA dealt with a large amount 

of data on imports that it appropriately 

scrubbed to exclude obvious errors and 

outliers.’’ Within the populations of 

domestic manufacturers and importers 

categorized based on volume, USDA 

conducted a series of ‘‘what if’’ analyses 

to determine the impact of various de 

minimis levels on revenue in terms of 

‘‘. . . administrative costs, the 

compliance burden on respondents and 

the potential for ‘‘free rider’’ benefits.’’ 

The commenter also observed that 

USDA compared the results to other 

federal promotion programs authorized 

under the 1996 Act and overseen by 

USDA where it found that 8 of 10 

programs exempt a de minimis quantity 

from assessment, and that half of those 

programs exempt between 3 and 11 

percent of the total quantity covered by 

the program as de minimis. Among the 

range of alternatives that USDA 

analyzed, the 10 and 15 mmbf 

thresholds came closest to this range. 

The commenter stated that USDA also 

compared the benefits derived from 

these thresholds with the likely 

compliance costs incurred, which 

USDA estimated at $5,000 per entity. 

The point at which revenues collected 

from entities that would fall below the 

compliance cost was found to be at 14.3 

mmbf, which is closest to the 15 mmbf 

threshold. The combination of these 

results led USDA to conclude that 15 

mmbf is the most appropriate 

benchmark between volumes assessed 

and not assessed. The commenter 

concluded that, ‘‘. . . while there is no 

special formula for computing a de 

minimis threshold . . . ,’’ the 

commenter believes that USDA selected 

a reasonable exemption amount based 

on the industry’s structure and the 

program’s benefits and costs. 

Six commenters opined that the 15 

mmbf threshold appropriately separates 

the high production manufacturers from 

small entities that manufacture specialty 

products and sell into mostly local and 

niche markets. They agreed that 

specialty products do not benefit as 

much from a national promotion 

program, and that growth in market 

share benefits entities that manufacture 

larger volumes to a greater degree than 

those that fall below the 15 mmbf 

threshold. 

Several commenters expressed 

concern with the administrative burden 

that complying with a mandatory 

promotion program could place on 

small entities below the 15 mmbf 

threshold. One commenter stated that, 

on a per board foot ratio, the costs to 

participate in the program are lower for 

larger entities than smaller entities. 

Many small entities still record their 

shipments by hand. Larger entities, on 

the other hand, can afford to invest in 

automated computer reporting systems 

and can have personnel dedicated to 

efficiently analyzing their reporting. 

Thus, the administrative costs for 

smaller entities to participate in the 

program are higher than the costs for 

larger entities. 

Two commenters also referenced the 

part’s 8 percent cap on administrative 

expenses. They opined that the revenue 

gained from collecting assessments from 

numerous small entities would not be 

sufficient to justify the additional costs 

and administrative complexities. 

Three commenters expressed support 

for the equity exemption. They opined 

that the equity exemption makes the 

program fair for everyone. One 

commenter opined that the equity 

exemption mitigates the free rider 

problem because larger entities do not 

have to pay assessments on their first 15 

mmbf shipped. Without the equity 

exemption, assessment payers would 

pay more, thereby increasing the free 

rider impact.11

Two commenters discussed the efforts 

of the Blue Ribbon Commission (BRC), 

the proponent group, in promulgating 

the program. They stated that the BRC 

surveyed the industry on issues related 

to the program, including the de 

minimis exemption threshold. They 

stated that the BRC sought a level that 

would generate maximum revenue for 

the program while being mindful of the 

cost of administering the program and 

collecting assessments. The BRC’s 

survey found that 15 mmbf was the 

appropriate level that was broadly 

accepted by the industry. 

Several commenters also expressed 

their overall support for the softwood 

lumber program. They agreed that the 

program provides a strong, unified voice 

for the industry. One commenter stated 

that the program has contributed 

significantly to strengthening the 

position of softwood lumber in the 

market place as well as expanding and 

developing new markets for softwood 

lumber. The commenters also agreed 

that funding for the program has been 

appropriate since assessment collection 

began in 2012. None of the commenters 

supported increasing the exemption 

threshold thereby reducing funding for 

the program. 

No changes have been made to the 

proposed rule based on the comments 

received. 

After consideration of all relevant 

matters presented, including the 

available information and comments 

received, it is hereby found that this 

rule, is consistent with and will 

effectuate the purposes of the 1996 Act. 

List of Subjects in 7 CFR Part 1217 

Administrative practice and 

procedure, Advertising, Consumer 

information, Marketing agreements, 

Promotion, Reporting and 

recordkeeping requirements, Softwood 

lumber. 


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49492 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Rules and Regulations 

The authority citation for 7 CFR part 

1217 continues to read as follows: 

Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 

7401. 

Dated: October 19, 2017. 

Bruce Summers, 

Acting Administrator. 

[FR Doc. 2017–23094 Filed 10–25–17; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 25 

[Docket No. FAA–2017–0862; Special 

Conditions No. 25–703–SC] 

Special Conditions: Boeing Model 777– 

300ER Airplanes; Passenger-Cabin 

High-Wall Suites 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final special conditions; request 

for comments. 

SUMMARY: These special conditions are 

issued for Boeing Model 777–300ER 

airplanes with high-wall suites installed 

in the passenger cabin. This installation 

is novel or unusual, and the applicable 

airworthiness regulations do not contain 

adequate or appropriate safety standards 

for this interior configuration. These 

special conditions contain the 

additional safety standards that the 

Administrator considers necessary to 

establish a level of safety equivalent to 

that established by the existing 

airworthiness standards. 

DATES: This action is effective on Boeing 

on October 26, 2017. Send your 

comments by December 11, 2017. 

ADDRESSES: Send comments identified 

by docket number FAA–2017–0862 

using any of the following methods: 

D Federal eRegulations Portal: Go to 

http://www.regulations.gov/ and follow 

the online instructions for sending your 

comments electronically. 

D Mail: Send comments to Docket 

Operations, M–30, U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

D Hand Delivery or Courier: Take 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

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

Friday, except Federal holidays. 

D Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Privacy: The FAA will post all 

comments it receives, without change, 

to http://www.regulations.gov/, 

including any personal information the 

commenter provides. Using the search 

function of the docket Web site, anyone 

can find and read the electronic form of 

all comments received into any FAA 

docket, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). DOT’s 

complete Privacy Act Statement can be 

found in the Federal Register published 

on April 11, 2000 (65 FR 19477–19478). 

Docket: Background documents or 

comments received may be read at 

http://www.regulations.gov/ at any time. 

Follow the online instructions for 

accessing the docket or go to Docket 

Operations in Room W12–140 of the 

West Building Ground Floor at 1200 

New Jersey Avenue SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: John 

Shelden, Airframe and Cabin Safety 

Section, AIR–675, Transport Standards 

Branch, Policy and Innovation Division, 

Aircraft Certification Service, 1601 Lind 

Avenue SW., Renton, Washington 

98057–3356; telephone 425–227–2785; 

facsimile 425–227–1232; email 

john.shelden@faa.gov. 

SUPPLEMENTARY INFORMATION: The 

substance of these special conditions 

has been subject to the notice and 

comment period in several prior 

instances and has been derived without 

substantive change from those 

previously issued. It is unlikely that 

prior public comment would result in a 

significant change from the substance 

contained herein. Therefore, because a 

delay would significantly affect the 

certification of the airplane, the FAA 

has determined that prior public notice 

and comment are unnecessary and 

impracticable. 

In addition, since the substance of 

these special conditions has been 

subject to the public comment process 

in several prior instances with no 

substantive comments received, the 

FAA finds it unnecessary to delay the 

effective date and finds that good cause 

exists for adopting these special 

conditions upon publication in the 

Federal Register. 

Comments Invited 

We invite interested people to take 

part in this rulemaking by sending 

written comments, data, or views. The 

most helpful comments reference a 

specific portion of the special 

conditions, explain the reason for any 

recommended change, and include 

supporting data. 

We will consider all comments we 

receive by the closing date for 

comments. We may change these special 

conditions based on the comments we 

receive. 

Background 

On December 19, 2014, Boeing 

applied for a type certificate design 

change to Type Certificate (TC) No. 

T00001SE to install high-wall suites in 

the passenger compartment of Boeing 

Model 777–300ER airplanes. 

The Model 777 series airplane is a 

swept-wing, conventional-tail, twinengine, turbofan- powered, transportcategory airplane. The airplane has 

seating for 365 passengers and a 

maximum takeoff weight of 775,000 

pounds. 

Type Certification Basis 

Under the provisions of title 14, Code 

of Federal Regulations (14 CFR) 21.101, 

Boeing must show that the Model 777– 

300ER airplane, as changed, continues 

to meet the applicable provisions of the 

regulations listed in Type Certificate No. 

T00001SE or the applicable regulations 

in effect on the date of application for 

the change, except for earlier 

amendments as agreed upon by the 

FAA. 

If the Administrator finds that the 

applicable airworthiness regulations 

(i.e., 14 CFR part 25) do not contain 

adequate or appropriate safety standards 

for the Boeing Model 777–300ER 

airplane because of a novel or unusual 

design feature, special conditions are 

prescribed under the provisions of 

§ 21.16. 

Special conditions are initially 

applicable to the model for which they 

are issued. Should the type certificate 

for that model be amended later to 

include any other model that 

incorporates the same novel or unusual 

design feature, or should any other 

model already included on the same 

type certificate be modified to 

incorporate the same novel or unusual 

design feature, these special conditions 

would also apply to the other model 

under § 21.101. 

In addition to the applicable 

airworthiness regulations and special 

conditions, the Boeing Model 777– 

300ER airplane must comply with the 

fuel-vent and exhaust-emission 

requirements of 14 CFR part 34, and the 

noise-certification requirements of 14 

CFR part 36. 

The FAA issues special conditions, as 

defined in 14 CFR 11.19, in accordance 

with § 11.38, and they become part of 


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