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[Federal Register: April 12, 2010 (Volume 75, Number 69)]
[Rules and Regulations]               
[Page 18396-18399]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap10-3]                         


[[Page 18396]]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1245

[Doc. No. AMS-FV-07-0091; FV-07-706-FR]
RIN 0581-AC78

 
U.S. Honey Producer Research, Promotion, and Consumer Information 
Order; Referendum Procedures

AGENCY: Agricultural Marketing Service, Agriculture, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes procedures which the Department of 
Agriculture (USDA or the Department) will use in conducting a 
referendum to determine whether the issuance of the proposed U.S. Honey 
Producer Research, Promotion, and Consumer Information Order (Proposed 
U.S. Producer Order) is favored by persons to be covered by and 
assessed under this Order. The Proposed U.S. Producer Order will be 
implemented if it is approved by a majority of the eligible producers 
voting in the referendum who also represent a majority of the volume of 
U.S. honey produced. These procedures will also be used for any 
subsequent referendum under the Order, if it is approved in the initial 
referendum. The Proposed U.S. Producer Order is being published 
separately in this issue of the Federal Register. This program is being 
implemented under the Commodity Promotion, Research, and Information 
Act of 1996 (1996 Act).

DATES: Effective Date: April 13, 2010.

FOR FURTHER INFORMATION CONTACT: Kimberly Coy, Marketing Specialist, 
Research and Promotion Branch, FV, AMS, USDA, Stop 0244, Room 0634-S, 
1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone 
202-720-9915 or (888) 720-9917 (toll free) or e-mail 
kimberly.coy@usda.gov.

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible U.S. producers of honey to determine whether they favor 
issuance of the proposed U.S. Honey Producer Research, Promotion, and 
Consumer Information Order (Proposed U.S. Producer Order) [7 CFR part 
1245]. The program will be implemented if it is approved by a majority 
of U.S. honey producers voting in the referendum who also represent a 
majority of the volume of U.S. honey produced. The Order is authorized 
under the Commodity Promotion, Research, and Information Act of 1996 
(1996 Act) [7 U.S.C. 7411-7425]. The Order would cover the producers of 
U.S. honey of 100,000 pounds or more. A proposed rule and referendum 
order is published separately in this issue of the Federal Register.
    Prior documents: Proposed rules on both the Proposed Order [74 FR 
34182] and the Referendum Procedures [74 FR 34200] were published in 
the Federal Register on July 14, 2009 with a 60-day comment period.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by 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 Act provides that the Act 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 Act, a person subject to an order may file 
a 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 requesting 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 Act provides that the district court of the United 
States for any district in which the petitioner resides or conducts 
business shall be 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 entry of USDA's final ruling.

Final Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601-612], the Department is required to examine the impact of this rule 
on small entities. The purpose of the RFA is to fit regulatory actions 
to the scale of businesses subject to such action so that small 
businesses will not be disproportionately burdened.
    The 1996 Act, which authorizes the Department to consider industry 
proposals for generic programs of promotion, research, and information 
for agricultural commodities, became effective on April 4, 1996. The 
1996 Act provides for alternatives within the terms of a variety of 
provisions.
    Paragraph (e) of Section 518 of the 1996 Act provides three options 
for determining industry approval of a new research and promotion 
program: (1) By a majority of those persons voting; (2) by persons 
voting for approval who represent a majority of the volume of the 
agricultural commodity; or (3) by a majority of those persons voting 
for approval who also represent a majority of the volume of the 
agricultural commodity. In addition, Section 518 of the 1996 Act 
provides for referenda to ascertain approval of an order to be 
conducted either prior to its going into effect or within three years 
after assessments first begin under an order. The American Honey 
Producers Association (AHPA), the proponent of the Proposed U.S. 
Producer Order, has recommended that the Department conduct a 
referendum in which approval of an order would be based on a majority 
of U.S. producers of honey voting in the referendum who also represent 
a majority of the volume of U.S. honey produced. The Department is 
conducting a referendum prior to the Proposed U.S. Producer Order going 
into effect.
    This rule establishes the procedures under which producers of U.S. 
honey will vote on whether they want a U.S. honey producer research, 
promotion, and consumer information program to be implemented. This 
rule adds a new subpart which establishes procedures to conduct an 
initial referendum and future referenda. The subpart covers 
definitions, voting instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information.
    There are approximately 317 producers of honey who would be subject 
to the program and eligible to vote in the first referendum. The Small 
Business Administration defines in 13 CFR 121, small agricultural 
producers as those having annual receipts of no more than $750,000 
annually and small agricultural service firms as those having annual 
receipts of no more than $7.0 million. Using these criteria, most 
producers would be considered small businesses.
    National Agricultural Statistic Service (NASS) data reports that 
U.S. production of honey, from producers with five or more colonies, 
totaled 155 million pounds in 2006. The top ten producing States in 
2006 included North Dakota, South Dakota, California,

[[Page 18397]]

Florida, Minnesota, Montana, Texas, Wisconsin, Idaho, and New York. To 
avoid disclosing data for individual operations, NASS statistics do not 
include Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, 
Oklahoma, Rhode Island, and South Carolina. NASS reported the value of 
honey sold in 2006 was $161,314,000. Honey prices increased during 2006 
to 104.2 cents, up 14 percent from 91.8 cents in 2005.
    There is a current Honey Packers and Importers Research, Promotion, 
Consumer Education, and Industry Information Order (Packers and 
Importers Order) in effect (7 CFR part 1212) that replaced the Original 
Honey Research, Promotion, and Consumer Information Order (Original 
Order) on May 15, 2008 [73 FR 29390]. Based on the assessment reports 
in connection with the Original Honey Research, Promotion, and Consumer 
Information Order and recorded by U.S. Customs and Border Protection, 
seventeen countries produced over 93 percent of the honey imported into 
the U.S. In 2005, five of these countries produced almost 79 percent of 
the total honey imported into the United States. These countries and 
their share of the imports are: China (28%), Argentina (21%), Vietnam 
(13%), Canada (10%), and India (8%). Imports accounted for 69 percent 
of U.S. consumption in 2006, an increase of 18 percent, up from 51 
percent since 2002. In 2006, 155 million pounds of honey were produced 
in the United States, 279.4 million pounds were imported and 7.6 
million pounds were exported. At the initial rate of $0.02 per pound, 
revenue for the Proposed U.S. Producer Order would be approximately 
$1.9 million in a twelve month period.
    This rule provides the procedures under which U.S. honey producers 
will vote on whether they want the Proposed U.S. Producer Order to be 
implemented. In accordance with the provisions of the 1996 Act, 
subsequent referenda may be conducted, and it is anticipated that these 
procedures will apply. There are approximately 317 producers of honey 
will be eligible to vote in the first referendum. U.S. honey producers 
of less than 100,000 pounds of U.S. honey annually will be exempt from 
assessments and not eligible to vote in the referendum.
    USDA will keep these U.S. honey producers 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 will also publicize information regarding the referendum 
process so that trade associations and related industry media can be 
kept informed.
    Voting in the referendum is optional. However, if U.S. honey 
producers choose to vote, the burden of voting will be offset by the 
benefits of having the opportunity to vote on whether or not they want 
to be covered by the Proposed U.S. Producer program.
    The information collection requirements contained in this rule are 
designed to minimize the burden on U.S. honey producers. This rule 
provides for a ballot to be used by eligible U.S. honey producers to 
vote in the referendum. The estimated total cost of providing 
information by an estimated 317 U.S. producers would be $317 or $1.00 
per U.S. producers.
    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 will 
be more cost effective and reliable. USDA will provide easy access to 
information for potential voters through a toll free telephone line.
    There are no Federal rules that duplicate, overlap, or conflict 
with this rule.

Paperwork Reduction Act

    In accordance with the OMB regulation [5 CFR 1320] which implements 
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, was 
submitted to OMB for approval and will be approved under OMB number 
0581-NEW.
    Title: U.S. Honey Producers Research, Promotion, and Consumer 
Information Order.
    OMB Number: 0581-NEW.
    Expiration Date of approval: 3 years from approval date.
    Title: New information collection for research and promotion 
programs.
    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 Act, to provide the 
respondents the type of service they request, and to administer the 
Order. The ballot is needed for the referendum that will be held to 
determine whether U.S. producers are in favor of the program. The 
information collected is used by USDA to determine whether a majority 
of the eligible U.S. producers voting in a referendum, who also 
represent a majority of the volume of U.S. honey and honey products, 
approve this program.

Referendum Ballot

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
U.S. honey producer.
    Respondents: U.S. honey producers.
    Estimated Number of Respondents: 317.
    Estimated Number of Responses per Respondent: 1 every 7 years 
(0.14).
    Estimated Total Annual Burden on Respondents: 11 hours.
    The ballot will be added to the other information collections 
approved for use under OMB Number 0581-NEW.
    The estimated annual cost of providing the information by an 
estimated 317 U.S. honey producers would be $317 or $1.00 per producer.

Background

    The 1996 Act, which became effective on April 4, 1996, authorizes 
the Department to establish a national research and promotion program 
covering domestic and imported honey and honey products. The AHPA 
submitted the Proposed U.S. Producer Order on May 25, 2007, and 
modifications were made to the proposal to make it consistent with the 
1996 Act. Proposed rules on both the Proposed Order [74 FR 34182] and 
the Referendum Procedures [74 FR 34200] were published in the Federal 
Register on July 14, 2009 with a 60-day comment period. A second 
proposal addressing the comments received for the Proposed U.S. 
Producer Order is published in this issue of the Federal Register.
    The Proposed U.S. Producer Order would provide for the development 
and financing of an effective and coordinated program of promotion, 
research, and consumer and industry information for honey and honey 
products in the United States. The program would be funded by an 
assessment levied on U.S. honey producers at an initial rate of $0.02 
per pound. U.S. honey producers of less than 100,000 pounds of U.S. 
honey annually will be exempt from assessments. At the initial rate of 
$0.02 per pound, revenue for the Proposed U.S. Producer Order would be 
approximately $1.9 million in a twelve month period.
    The assessments would be used to pay for promotion, research, and 
consumer and industry information; administration, maintenance, and 
functioning of the U.S. Honey Producer Board; and expenses incurred by 
the Department in implementing and

[[Page 18398]]

administering the Order, including referendum costs.
    Section 1245.19 of the Proposed U.S. Producer Order provides for a 
referendum to be conducted among U.S. honey producers to determine 
whether they favor implementation of the program. That section also 
requires the Proposed U.S. Producer Order to be approved by a majority 
of U.S. honey producers who also represent a majority of the volume of 
U.S. honey produced.
    This rule establishes the procedures under which U.S. honey 
producers of honey may vote on whether they want the U.S. honey 
producer research, promotion, and consumer information program to be 
implemented. There are approximately 317 eligible voters.
    This action adds a new subpart establishing procedures to be used 
in this and future referenda. This subpart covers definitions, voting, 
instructions, use of subagents, ballots, the referendum report, and 
confidentiality of information.
    Proposed referendum procedures were published in the Federal 
Register on July 14, 2009. Copies of the proposed rule were made 
available by USDA and the Office of the Federal Register, and were also 
available via the Internet at www.regulations.gov. The proposed rule 
provided a 60-day comment period ending on September 14, 2009. No 
comments were received by the deadline.
    It is found that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register (5 U.S.C. 553) so that a referendum may be scheduled as early 
in 2010 as possible.

List of Subjects in 7 CFR Part 1245

    Administrative practice and procedure, Advertising, Consumer 
Education, Honey, Marketing agreements, Promotion, Reporting and 
recordkeeping requirements.

0
For the reasons set forth in the preamble, Title 7, Chapter XI of the 
Code of Federal Regulations is amended by adding a new part 1245 to 
read as follows:

PART 1245--U.S. HONEY PRODUCER RESEARCH, PROMOTION, AND CONSUMER 
INFORMATION ORDER

Subpart A--[Reserved]
Subpart B--Referendum Procedures
Sec.
1245.100 General.
1245.101 Definitions.
1245.102 Voting.
1245.103 Instructions.
1245.104 Subagents.
1245.105 Ballots.
1245.106 Referendum report.
1245.107 Confidential information.
1245.108 OMB control number.

    Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.

Subpart A--[Reserved]

Subpart B--Referendum Procedures


Sec.  1245.100  General.

    Referenda to determine whether eligible U.S. producers favor the 
issuance, continuance, amendment, suspension, or termination of the 
U.S. Honey Producer Research, Promotion, and Consumer Information Order 
shall be conducted in accordance with this subpart.


Sec.  1245.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to re-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) Department 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 delegated, to act in 
the Secretary's stead.
    (c) [Reserved]
    (d) Eligible producer means any person who produces 100,000 pounds 
or more of honey in any State for sale in commerce and is subject to 
pay assessments to the Board on such U.S. honey produced during the 
representative period and who:
    (1) Owns or shares in the ownership of honey bee colonies or 
beekeeping equipment resulting in the ownership of the U.S. honey 
produced;
    (2) Rents honey bee colonies or beekeeping equipment resulting in 
the ownership of all or a portion of the U.S. honey produced;
    (3) Owns honey bee colonies or beekeeping equipment but does not 
manage them and, as compensation, obtains the ownership of a portion of 
the U.S. honey produced; or
    (4) Is a party in a lessor-lessee relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to produce honey that share the risk of loss and 
receive a share of the U.S. honey produced. No other acquisition of 
legal title to honey shall be deemed to result in persons becoming 
eligible producers.
    (f) Honey means the nectar and saccharine exudations of plants that 
are gathered, modified, and stored in the comb by honeybees, including 
comb honey.
    (g) Honey products mean products where honey is a principal 
ingredient. For purposes of this subpart, a product shall be considered 
to have honey as a principal ingredient, if the product contains at 
least 50 percent honey by weight.
    (h) Order means the U.S. Honey Producer Research, Promotion, and 
Consumer Information Order.
    (i) 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 spouse or marital partner who have title to, or leasehold 
interest in, honey bee colonies or beekeeping equipment 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 and others 
contributed capital, labor, management, equipment, or other services, 
or any variation of such contributions by two or more parties, so that 
it results in the production, or handling for market and the authority 
to transfer title to the honey so produced, or handled.
    (j) Referendum agent or agent means the individual or individuals 
designated by the Department to conduct the referendum.
    (k) Representative period means the period designated by the 
Department.
    (l) United States or U.S. means collectively the 50 States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1245.102  Voting.

    (a) Each person who is an eligible U.S. producer and each person 
who is an eligible producer-packer, as defined in this subpart, at the 
time of the referendum and during the representative period, shall be 
entitled to cast one ballot in the referendum: However, each producer 
in a landlord-tenant relationship or a divided ownership arrangement 
involving totally independent entities cooperating only to produce U.S. 
honey or honey products, in which more than one of the parties is a 
producer, shall be entitled to cast one ballot in the referendum 
covering only that producer's share of the ownership of U.S. honey or 
honey products.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate producer may cast one ballot in the referendum on 
behalf of such

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entity. Any individual so voting in a referendum shall certify that 
they are an officer or employee of the eligible entity, or an 
administrator, executor, 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) All ballots are to be cast by mail, as instructed by the 
Department.


Sec.  1245.103  Instructions.

    (a) Referenda. The Order shall not become effective unless the 
Department determines that the Order is consistent with and will 
effectuate the purposes of the Act; and for initial and subsequent 
referenda the Order is favored by a majority of the eligible persons 
voting in the referendum who also represent a majority of the volume of 
U.S. honey produced, during a representative period determined by the 
Department, have been engaged in the production of honey and are 
subject to assessments under this Order and excluding those exempt from 
assessment under the Order.
    (b) 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, 
not inconsistent with the provisions of this subpart, to govern the 
procedure to be followed by the referendum agent. Such agent shall:
    (1) Determine the period during which ballots may be cast.
    (2) 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.
    (3) Give reasonable public notice of the referendum:
    (i) By utilizing 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
    (ii) By such other means as the agent may deem advisable.
    (4) Mail to eligible U.S. producers 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 Order. No person who 
claims to be eligible to vote shall be refused a ballot.
    (5) 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.
    (6) Prepare a report on the referendum.
    (7) Announce the results to the public.


Sec.  1245.104  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 or such appointment, shall be performed by the agent.


Sec.  1245.105  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.  1245.106  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.  1245.107  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.  1245.108  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. Chapter 35 
is OMB control number 0581-0253.

    Dated: March 26, 2010.
David R. Shipman,
Acting Administrator.
[FR Doc. 2010-7574 Filed 4-9-10; 8:45 am]
BILLING CODE P
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