[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Rules and Regulations]
[Pages 29390-29405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1282]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1212 and 1240

[Docket No. AMS-FV-06-0176; FV-03-704-FR]
RIN 0581-AC37


Establishment of Honey Packers and Importers Research, Promotion, 
Consumer Education and Industry Information Order and Suspension of 
Assessments Under the Honey Research, Promotion, and Consumer 
Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes the Honey Packers and Importers 
Research, Promotion, Consumer Education and Industry Information Order 
(Packers Order). The Packers Order is authorized under the Commodity 
Promotion, Research, and Information Act of 1996 (1996 Act). Under the 
Packers Order, first handlers and importers will pay an assessment of 
$0.01 per pound on honey and honey products. First handlers and 
importers of less than 250,000 pounds of honey and honey products 
annually will be exempt from the assessment. The assessments will be 
remitted to the Honey Packers and Importers Board (Board) to conduct a 
generic program of promotion, research, consumer education, and 
industry information to maintain and expand markets for honey and honey 
products. A referendum was conducted among honey first handlers and 
importers between April 2 and April 16, 2008. Seventy-eight percent of 
those covered under the Packers Order--representing ninety-two percent 
of the volume of those voting in the referendum--favored implementation 
of the program. This rule also suspends the requirement of the existing 
Honey Research, Promotion, and Consumer Information Order (Current 
Order) and regulations authorized under the Honey Research, Promotion, 
and Consumer Information Act (Honey Act) that honey producers and 
importers pay to the National Honey Board (Current Board) an assessment 
in the amount of $0.01 per pound on honey and honey

[[Page 29391]]

products. The provisions of the Current Order and regulations issued 
thereunder will be terminated at a later date.

DATES: Effective Date: May 22, 2008.

FOR FURTHER INFORMATION CONTACT: Kathie Notoro, Marketing Specialist, 
Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 
Stop 0244, Room 0632-S, 1400 Independence Ave, SW., Washington, DC 
20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free), 
Fax: (202) 205-2800 or e-mail <a href="/cdn-cgi/l/email-protection#315a50455958541f5f5e455e435e71444255501f565e47"><span class="__cf_email__" data-cfemail="355e54415d5c501b5b5a415a475a75404651541b525a43">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This rule is issued under the Commodity 
Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 
7411-7425) and under the Honey Research, Promotion, and Consumer 
Information Act (Honey Act) (7 U.S.C. 4601-4613). The Current Order 
appears at 7 CFR Part 1240.
    A proposed rule with the Packers Order was published in the Federal 
Register on June 4, 2007 [72 FR 30924], with a 60-day comment period 
which ended on August 3, 2007. That rule also proposed termination of 
the Current Order and regulations in 7 CFR Part 1240. A second proposed 
rule and referendum order was published in the Federal Register on 
March 3, 2008 [73 FR 11474]. A final rule including the referendum 
procedures was published in the Federal Register the same day [73 FR 
11470].
    First handlers and importers who handled 250,000 pounds or more of 
honey or honey products, during the period from January 1, 2007, 
through December 31, 2007, were eligible to vote in the April 2-16, 
2008, referendum. Seventy-eight percent of those voting in the 
referendum, representing ninety-two percent of the volume who voted in 
the referendum, approved the program. The referendum was conducted by 
mail ballot.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    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 and section 10 of the Honey Act, 
a person subject to an order may file a petition with the U.S. 
Department of Agriculture (Department) stating that the order, any 
provision of the order, or any obligation imposed in connection with 
the order is not established in accordance with the law, and requesting 
a modification of the order or an exemption from the order. Any such 
petition must be filed within two years after the effective date of an 
order, provision or obligation subject to challenge. The petitioner 
would have the opportunity for a hearing on the petition. Thereafter, 
the Department would 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 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 the Department's final ruling.
    In deciding if the Packers Order was consistent with and would 
effectuate the purpose of the 1996 Act, the Secretary considered the 
existence of other federal research and promotion programs issued under 
other laws. The Current Order appears at 7 CFR Part 1240 and is issued 
under the Honey Act.
    Similar to the Current Order, the goals of the Proposed Order are 
to: (1) Develop and finance an effective and coordinated research, 
promotion, industry information, and consumer education program for 
honey and honey products; (2) strengthen the position of the honey 
industry; and (3) develop, maintain, and expand existing markets for 
honey and honey products.
    Taking into account the duplicative nature of the Packers Order 
with the Current Order, the Department proposed terminating the Current 
Order and its regulations. This rule suspends the requirements of the 
Current Order and regulation that honey producers and importers pay 
assessments on honey and honey products. The provisions of the Current 
Order and regulations issued thereunder will be terminated at a later 
date. The Department will then appoint not more than five trustees from 
the Current Board to liquidate the affairs of the Current Board.

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 National 
Honey Packers and Dealers Association (Association) submitted a 
proposal for a national promotion, research and information order for 
honey and honey products on March 17, 2006. The Department published 
the Association's proposal, with modifications, for public comment in 
the June 4, 2007, Federal Register [72 FR 30924]. Seventy-six comments 
were received by the August 3, 2007, deadline. These comments, and 
related changes to the Packers Order, were discussed in the March 3, 
2008, proposed rule published in the Federal Register [73 FR 11482] 
which included a Referendum Order. The representative period for 
establishing voter eligibility for the referendum was the period from 
January 1 to December 31, 2007. A referendum was conducted by mail 
ballot from April 2 to April 16, 2008. In the referendum, first 
handlers and importers of 250,000 pounds or more of honey and honey 
products voted to implement the program.
    The program will be administered by the Board under USDA 
supervision. The Board will have ten members; including three first 
handler representatives, two importer representatives, one importer-
handler representative, one national honey marketing cooperative 
representative, and three producer representatives and their 
alternates.
    Under the Packers Order, ``first handler'' would be defined to mean 
the first person who handles honey or honey products, and would include 
a producer who handles his or her own production. In addition, 
``handle'' would be defined to mean process, package, sell, transport, 
purchase or in any other way place honey or honey products, or cause 
them to be placed, in commerce. This term would include selling 
unprocessed honey that will be consumed without further processing or 
packaging, but would not include the transportation of unprocessed 
honey by the producer to a handler or transportation by a commercial 
carrier for the account of the first handler or producer.
    The Packers Order provides that each first handler pay an 
assessment to the Board at the rate of $0.01 per pound of domestically 
produced honey or honey products that the handler handles. The Packers 
Order establishes that each first handler responsible for remitting 
assessments shall pay the Board the amount due on a monthly basis no 
later than the fifteenth day of the month following the month in which 
the honey or honey products were marketed. The funds generated through 
the mandatory assessments on domestically handled and imported honey or 
honey products would be used to pay for promotion, research, and 
consumer and industry information as well as the

[[Page 29392]]

administration, maintenance, and functioning of the Board.
    The Packers Order defines ``importer'' to mean any person who 
imports honey or honey products from outside the United States for sale 
in the United States as a principal or as an agent, broker, or 
consignee for any person. An importer is also listed in the import 
records as the importer of record for such honey or honey products with 
U.S. Customs and Border Protection (Customs).
    Section 516(f) of the 1996 Act allows assessments on imports at a 
rate comparable to the rate for domestics. The Packers Order treats 
importers in the same manner as domestic handlers in terms of the 
assessment rate: Each importer would pay an assessment to the Board at 
the rate of $0.01 per pound of honey or honey products the importer 
imports into the United States. An importer must pay the assessment to 
the Board through Customs when the honey or honey products being 
assessed enters the United States. If Customs does not collect an 
assessment from an importer, the importer would be responsible for 
paying the assessment directly to the Board.
    The assessment levied on domestically handled and imported honey 
and honey products would be used to pay for promotion, research, and 
consumer education and industry information as well as the 
administration, maintenance, and functioning of the Board. Expenses 
incurred by the Department in implementing and administering the 
Packers Order, including referenda costs, also would be paid from 
assessments.
    Persons failing to remit total assessments due in a timely manner 
may also be subject to actions under Federal debt collection procedures 
as set forth in 7 CFR 3.1 through 3.36 for all research and promotion 
programs administered by the Department [60 FR 12533, March 7, 1995]. 
Persons also would have to pay interest and late payment charges on 
late assessments as prescribed in the Packers Order.
    Under the Packers Order, a first handler who handles less than 
250,000 pounds of honey or honey products per year or an importer who 
imports less than 250,000 pounds of honey or honey products per year, 
would be exempt from paying assessments.
    In addition, a first handler who operates under an approved NOP 
system plan, handles only products eligible to be labeled as 100 
percent organic under the NOP, and is not a split operation, is exempt 
from the paying assessments under the Packers Order. An importer who 
imports only products eligible to be labeled as 100 percent organic 
under the NOP, and is not a split operation, also is exempt from paying 
assessments.
    The Packers Order allows the Board to recommend to the Secretary an 
increase or decrease to the assessment, as it deems appropriate by at 
least a two-thirds vote of members present at a meeting of the Board. 
The Board may not recommend an increase in the assessment of more than 
$0.02 per pound of honey or honey products and assessments may not be 
increased by more than $0.0025 in any single fiscal year.
    Although the 1996 Act allows for credits of assessments for generic 
and branded activities, the Association who proposed the Packers Order 
did not elect to include it.
    As the Packers Order establishes that first handlers and importers 
will be responsible for paying assessments, the Packers Order states 
that these two groups will also be responsible for filing specific 
reports and maintaining records regarding the amount of honey and honey 
products brought to the market.
    First handlers will be required to file reports and maintain 
records on the total quantity of honey and honey products acquired 
during the reporting period, the quantity of honey processed for sale 
from the handler's own production, and the quantity of honey purchased 
from a handler or importer responsible for paying the assessment due. 
The Board will recommend to the Department specific reporting periods 
and dates when such reports are due to the Board.
    Unless provided by Customs, importers will be required to report 
the total quantity of honey and honey products imported during each 
reporting period, and keep a record of each lot of honey and honey 
products imported during such period, including the quantity, date, 
country of origin, and port of entry. Under the Packers Order, Customs 
would collect assessments on imported honey and honey products and 
remit the funds to the Board.
    Each first handler and importer, including those who would be 
exempt from paying assessments under the Packers Order, will be 
required to maintain any books and records necessary to carry out the 
provisions of the Packers Order for two years beyond the fiscal period 
to which they apply. This would include the books and records necessary 
to verify any required reports. These books and records would be made 
available to the Board's or Department's employees or agents during 
normal business hours for inspection if necessary.
    The Packers Order provides that all officers, employees, and agents 
of the Department and of the Board are required to keep confidential 
all information obtained from persons subject to the Order. This 
information will be disclosed only if the Department considers the 
information relevant, and the information is revealed in a judicial 
proceeding or administrative hearing brought at the direction or on the 
request of the Department or to which the Department or any officer of 
the Department is a party.
    However, the issuance of general statements based on reports or on 
information relating to a number of persons subject to the Packers 
Order would be permitted, if the statements do not identify the 
information furnished by any person. Finally, the publication, by 
direction of the Department, of the name of any person violating the 
Packers Order and a statement of the particular provisions of the 
Packers Order violated by the person will be allowed.
    It is estimated that revenue for the Packers Order will be around 
or slightly more than $3 million. Of this amount, about 64 percent 
would be generated by assessments on imported honey and honey products.
    The importer representatives must import at least 75 percent of the 
honey or honey products they market in the United States. The importer-
handler representative must also import at least 75 percent of the 
honey or honey products they market in the United States and must 
handle at least 250,000 pounds annually. In addition, the producer 
representatives must produce a minimum of 150,000 pounds of honey in 
the United States annually based on the best three year average of the 
most recent five calendar years.
    Each term of office on the Board would end on December 31, with new 
terms of office beginning on January 1, with the exception of the 
initial Board's term of office.
    First handlers, producers, and a national honey marketing 
cooperative representative would represent those entities in the United 
States. The United States is defined to include collectively the 50 
States, the District of Columbia, the Commonwealth of Puerto Rico and 
the territories and possessions of the United States. Board members 
from each of these groups would be nominated by national organizations 
representing each of them respectively. Honey is produced in almost all 
of the 50 States. The top ten producing States in 2006 included North 
Dakota, South

[[Page 29393]]

Dakota, California, Florida, Minnesota, Montana, Texas, Wisconsin, 
Idaho, and New York.
    Importers and the importer-handler on the Board will be nominated 
by national organizations representing importers. Such importers and 
the importer-handler will represent those individuals who import for 
sale honey or honey products into the United States as a principal or 
as an agent, broker, or consignee for any person who produces honey or 
honey products outside the United States. All qualified national 
organizations representing first handlers, producers, importers and 
honey-marketing cooperatives will have the opportunity to participate 
in a nomination caucus for the purposes of preparing a slate of 
candidates for the above positions submitted to the Department for 
consideration.
    Eligible organizations must submit nominations to the Department 
six months before a new term of office begins, except for the initial 
appointments to the Board. To become a qualified national organization 
representing first handlers, importers, or producers under the Packers 
Order, each such organization will be required to meet the following 
criteria: (1) The majority of its voting membership must consist of 
first handlers or producers of honey, and in the case of an importing 
organization, the membership must represent at least a majority of the 
volume of honey or honey products imported into the United States; (2) 
it must have a history of stability and permanency and have been in 
existence for more than 1 year; (3) its primary purpose must be to 
promote honey first handlers', importers' or producers' welfare; (4) it 
must derive a portion of its operating funds from first handlers, 
importers, or producers; and (5) it must demonstrate it is willing and 
able to further the 1996 Act's purposes. Further, any organization 
representing first handlers or producers must represent a substantial 
number of first handlers or producers who market or produce a 
substantial volume of honey or honey products in at least 20 States.
    To be eligible as a qualified national honey-marketing cooperative, 
the Department must certify that an entity qualifies under the 
definition in section 1212.42(d). Such an entity shall not be eligible 
for certification as a qualified national organization representing 
producer interests.
    If the Department determines that there are no qualified national 
organizations representing first handlers, importers, producers, and 
honey-marketing cooperatives interests, individuals who have paid their 
assessments to the Board in the most recent fiscal year could submit 
nominations for those positions specified.
    The Packers Order indicates that the Board may recommend to the 
Department that a member be removed from office if the member 
consistently refuses to perform his or her duties or engages in 
dishonest acts or willful misconduct. The Department may remove the 
member if the Department finds that the Board's recommendation 
demonstrates cause.
    The 1996 Act provides that to ensure fair and equitable 
representation, the composition of a Board shall reflect the geographic 
distribution of the production of the agriculture commodity in the 
United States and the quantity or value of the agriculture commodity 
imported into the United States.
    Under the Packers Order at least once every five years, but not 
more frequently than once in each three year period, the Board would 
review the geographical distribution in the United States of the 
production of honey covered by the Packers Order and quantity or value 
of honey and honey products imported into the United States. The 
review, based on a three-year average, would enable the Board to 
evaluate whether the Board membership is reflective of the composition 
of the honey industry.
    Board members could serve terms of three years and be able to serve 
a maximum of two consecutive terms under the Packers Order. When the 
Board is first established, one producer, one first handler, one 
importer, and the representative of a national honey cooperative would 
serve a two-year term. One producer, one first handler, and the 
importer-handler representative would serve a three-year term of 
office. One producer, one first handler, and one importer would serve a 
four-year term of office. This would allow the terms be staggered on 
the Board. No member or alternate may serve more than two consecutive 
terms, excluding any initial two-year term of office. Determination of 
which of the initial members and their alternates would serve two-year, 
three-year or four-year terms, would be designated by the Department.
    In the event that any member or alternate of the Board ceases to be 
a member of the category of members from which the member was appointed 
to the Board, such position shall become vacant.
    Under the Packers Order, a quorum is met if a majority of members 
are present and at least one first handler and one importer are 
present. Also, under the Packers Order, there is a \2/3\ vote 
requirement for recommendations to the Secretary of a change in 
assessment.
    The Order provides that 5% of the Board's anticipated revenue must 
be set aside for production research.
    The provisions regarding referendum procedures in the Packers Order 
provide for a referendum every seven years.
    The Department also is suspending assessments under the Current 
Order and regulation. The Current Order provisions and regulations will 
be terminated at a later date. A separate rule will be published in the 
Federal Register terminating the Current Order provisions and 
regulations. The Department will then appoint not more than five 
trustees from the Current Board to liquidate the affairs of the Current 
Board.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), the Agricultural Marketing Service (AMS) is required to 
examine the impact of the rule 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 would not be disproportionately 
burdened.
    The 1996 Act authorizes generic promotion, research, and 
information programs for agricultural commodities. Development of such 
programs under this authority are in the national public interest and 
vital to the welfare of the agricultural economy of the United States 
and to maintain and expand existing markets and develop new markets and 
uses for agricultural commodities through industry-funded, government-
supervised, generic commodity promotion programs.
    The proponent Association submitted the Packers Order to: (1) 
Develop and finance an effective and coordinated program of research, 
promotion, industry information, and consumer education regarding honey 
and honey products; (2) strengthen the position of the honey industry; 
and (3) maintain, develop, and expand existing markets for honey and 
honey products.
    The goals of the Current Order are similar. Therefore, taking into 
account the duplicative nature of the Packers Order with the Current 
Order, the Department is suspending in this rule assessment collection 
under the Current Order and its regulations and will terminate the 
provisions of the Current Order and regulations issued thereunder at a 
later date.
    The Packers Order is authorized under the 1996 Act, while the 
Current Order is authorized under the Honey

[[Page 29394]]

Act. A major difference between the Current Order and the Packers Order 
is that the Packers Order provides for assessments to be paid by first 
handlers and importers that handled or imported 250,000 pounds or more 
of honey or honey products a year rather than producers and importers 
of less than 6,000 pounds per year under the Current Order.
    Administrative expenses under the Packers Order will be reduced 
because the number of entities assessed under the Packers Order is 
reduced. Approximately 2,700 entities are assessed under the Current 
Order, while about 75 entities will be assessed under the Packers 
Order. Administrative costs will be reduced with fewer entities paying 
assessments and filing reports, and the assessment collection process 
will be simplified.
    First handlers, importers, and producers will have the opportunity 
to serve on the 10 member Board. Each member will have an alternate. 
The Board will consist of three first handler representatives, three 
honey producers, two importer representatives, one importer-handler 
representative and one representative from a national honey marketing 
cooperative. The Secretary of Agriculture (Secretary) will appoint 
members to the Board from nominees submitted in accordance with the 
Order.
    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 3 years after assessments first begin under the order. 
An initial referendum was conducted prior to putting the Packers Order 
in effect. Seventy-eight percent of first handlers and importers 
representing ninety-two percent of the volume voting in the referendum 
approved the program. Every seven years, the Department shall conduct a 
referendum to determine whether first handlers and importers of honey 
or honey products favor the continuation, suspension, or termination of 
the Packers Order. In addition, the Department could conduct a 
referendum at any time; at the request of 10 percent or more of the 
first handlers and importers required to pay assessments; or at the 
request of the Board.
    There are approximately 45 first handlers and 30 importers of honey 
or honey products that will pay assessments under the Packers Order. 
The Current Honey Board consists of 12 members; seven producers, two 
handlers, two importers, and one marketing cooperative member. The 
Packers Board would consist of 10 members; three first handlers, two 
importers, one importer-handler, three producers, and one marketing 
cooperative member. Under the Packers Order, entities in the board 
member nomination process will include qualified national organizations 
representing first handlers, importers, producers, and cooperative 
interests.
    The Packers Order also provides for first handlers and importers to 
file reports to the Board. In addition, the Packers Order requires that 
qualified national organizations and nominated producers provide 
information for the nomination and appointment process to the Board. 
While the Packers Order will impose certain recordkeeping requirements 
on first handlers, importers, and any producers who seek nomination and 
appointment to the Board, information required under the Packers Order 
could be compiled from records currently maintained and will involve 
existing clerical or accounting skills. The forms require the minimum 
information necessary to effectively carry out the requirements of the 
Packers Order, and their use is necessary to fulfill the intent of the 
1996 Act. An estimated 118 respondents would provide information to the 
Board. They will be: 45 first handlers, 30 importers, 6 producers (for 
nominations purposes), 10 certified organizations (for nomination 
purposes), 25 handlers/importers exempt under the program, and 2 
organic handlers/importers (for exemption purposes). The estimated 
total cost of providing information to the Board by all respondents 
will be approximately $11,550. This total has been estimated by 
multiplying 350 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 Small Business Administration [13 CFR 121.201] defines small 
agricultural producers as those having annual receipts of $750,000 or 
less annually and small agricultural service firms as those having 
annual receipts of $6.5 million or less. Using these criteria under the 
Packers Order, most producers, and first handlers will be considered 
small businesses, while most importers will not. Further, the members 
of cooperative organizations and other nominating organizations would 
reflect this same size composition.
    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, 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.
    Based on the assessment reports in connection with the Current 
Order and recorded by Customs, four countries account for 72 percent of 
the honey and honey products imported into the United States. These 
countries and their share of the imports are: China (28%); Argentina 
(21%); Vietnam (13%); and Canada (10%). Other countries combined 
totaled 28 percent of honey and honey products imported to the United 
States.
    At the initial rate, revenue for the Packers Order will be 
approximately $3 million. In 2006, $3.6 million of assessment income 
was collected from the honey industry, of which 36 percent was from 
domestic production and 64 percent from imports. In 2006, 155 million 
pounds of honey or honey products were produced in the United States, 
279.4 million pounds were imported and 7.6 million pounds were 
exported. The value of production in 2006 was $161.3 million. The 
average price for honey in the U.S. in 2006 was 104.2 cents per pound. 
Therefore, the estimated assessment revenue as a percentage of total 
grower revenue (using 2006 as a model) could be estimated at 1.8 
percent.
    This final rule also suspends assessment collections under the 
Current Order representing $3.6 million on an annual basis.
    The honey industry and consumers would benefit from additional 
information that may be conveyed through the plans and projects 
regarding honey and honey products. Another benefit to first handlers 
and importers of honey or honey products would be that they would have 
more representation on the Board and have additional input into Board 
decisions regarding the plans and programs under the Packers Order.
    Associations and related industry media received news releases and 
other information regarding the implementation of the Packers Order, 
termination of the Current Order, and the referendum process. 
Furthermore, all information is available electronically.
    The Board could develop guidelines for compliance with the Packers 
Order.

[[Page 29395]]

The Board could recommend to the Secretary changes in programs, plans, 
projects, budgets, and any rules and regulations including the 
assessment rate, that might be necessary for the administration of the 
program. The administrative expenses of the Board are limited by the 
1996 Act to no more than 15 percent of assessment income. This does not 
include USDA costs for program oversight.
    With regard to alternatives, the 1996 Act itself provides for 
authority to tailor a program according to the individual needs of an 
industry. Provision is made for permissive terms in an order in Sec.  
516 of the 1996 Act, and other sections provide for alternatives.
    The Packers Order is designed to: (1) Develop and finance an 
effective and coordinated research, promotion, industry information, 
and consumer education program for honey and honey products; (2) 
strengthen the position of the honey industry; and (3) maintain, 
develop, and expand existing markets for honey and honey products. 
Additionally, the Packers Order will require first handlers of honey or 
honey products, instead of honey producers, to pay assessments to the 
Board that administers the program. While assessments will impose some 
additional costs on first handlers, the reporting requirements are 
minimal because handlers under the Current Order already report to the 
Current Board. Also, the costs are minimal and uniform on all first 
handlers. These costs should be offset by the benefits derived by the 
operation of the Packers Order. Under the Packers Order importers will 
continue to pay assessments and be responsible for reporting and 
recordkeeping.
    Section 516 authorizes an order to provide for exemption of de 
minimis quantities (the proponent Association proposed 250,000 pounds 
or less as a de minimis quantity) of an agricultural commodity; 
different payment and reporting schedules; coverage of research, 
promotion, and information activities to expand, improve, or make more 
efficient the marketing or use of an agricultural commodity in both 
domestic and foreign markets; provision for reserve funds; provision 
for credits for generic and branded activities; and assessment of 
imports.
    Also, under authority provided by 7 U.S.C. 7401, the Packers Order 
exempts first handlers who operate under an approved National Organic 
Program (NOP) (7 CFR part 205) system plan, handle only products that 
are eligible to be labeled as 100 percent organic under the NOP, and 
are not a split operation, from paying assessments. The Packers Order 
also states that importers who import only products that are eligible 
to be labeled as 100 percent organic under the NOP, and are not a split 
operation, shall be exempt from paying assessments.
    The Packers Order includes provisions for domestic market expansion 
and improvement, and reserve funds. There will be a decrease in the 
reporting and recordkeeping burden cost from $129,459 under the Current 
Order to $11,550 under the Packers Order. The reduced cost is due to a 
reduction in the total of individuals required to report.
    Assessments under the Current Order and regulations are suspended 
in this rule. The provisions of the Current Order and its regulations 
will be terminated at a later date. With the exception of the Current 
Order, the Department has not identified any relevant Federal rules 
that duplicate, overlap or conflict with the Packers Order.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), AMS has submitted to OMB a new information collection that 
has been assigned OMB control number 0581-NEW.
    Title: Advisory Committee and Research and Promotion Board 
Background Information.
    OMB Number for background form AD-755: (Approved under OMB No. 
0505-0001).
    Expiration Date of approval: March 31, 2009.
    Title: National Research, Promotion, and Consumer Information 
Programs.
    OMB Number: 0581-NEW.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in the request 
are essential to carry out the intent of the 1996 Act.
    Under the Packers Order, first handlers would be required to pay 
assessments to and file reports with the Board. While the Packers Order 
will impose certain recordkeeping requirements on first handlers, 
information required under the Packers Order could be compiled from 
records currently maintained by such handlers. Such records will be 
retained for at least two years beyond the marketing year of their 
applicability.
    Under the Packers Order importers are responsible to pay 
assessments. Unless provided by Customs, importers must report the 
total quantity of product imported during the reporting period and a 
record of each importation of such product during such period, giving 
quantity, date, and port of entry. Under the Packers Order, Customs 
would collect assessments on imported honey and honey products and 
remit the funds to the Board.
    An estimated 118 respondents would provide information to the 
Board. They would be: 45 first handlers, 30 importers, 6 producers (for 
nominations purposes), 10 certified organizations (for nomination 
purposes), 25 handlers/importers exempt under the program, and 2 
organic handlers/importers (for exemption purposes). The estimated 
total cost of providing information to the Board by all respondents 
would be $11,550. This total has been estimated by multiplying 350 
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 Packers 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 honey programs administered by the Department.
    The forms will require the minimum information necessary to 
effectively carry out the requirements of the Packers Order, and their 
use is necessary to fulfill the intent of the 1996 Act. Such 
information can be supplied without data processing equipment or 
outside technical expertise. In addition, there are no additional 
training requirements for individuals filling out reports and remitting 
assessments to the Board. The forms would be simple, easy to 
understand, and place as small a burden as possible on the person 
required to file the information.
    Collecting information monthly during the production season will 
coincide with normal industry business practices. The timing and 
frequency of collecting information are intended to meet the needs of 
the industry while minimizing the amount of work necessary to fill out 
the required reports. The requirement to keep records for two years is 
consistent with normal industry practices. There is no practical method 
for collecting the required information without the use of these forms.
    Information collection requirements that are included in this rule 
include:
    (1) A Background Information Form AD-755 (Approved under OMB Form 
No. 0505-0001).

[[Page 29396]]

    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hours per response for each 
Board nominee.
    Respondents: First handlers, importers, producers and cooperative 
organizations.
    Estimated number of Respondents: 40 for initial nominations, 13 in 
subsequent years.
    Estimated number of Responses per Respondent: 1 every 3 years. 
(0.3)
    Estimated Total Annual Burden on Respondents: 20 hours for the 
initial nominations and 6 hours annually thereafter.
    (2) An Exemption Application for First Handlers and Importers Who 
Will Be Exempt From Assessments.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
exempt first handler and importer.
    Respondents: Exempt First handlers and importers.
    Estimated Number of Respondents: 25.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 6.25 hours.
    (3) Monthly Report by Each First Handler of Honey.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per each first handler 
reporting on honey handled.
    Respondents: First handlers.
    Estimated number of Respondents: 45.
    Estimated number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 270 hours.
    (4) A Requirement to Maintain Records Sufficient to Verify Reports 
Submitted Under the Order.
    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.5 hours per recordkeeper 
maintaining such records.
    Respondents: First handlers and importers.
    Estimated Number of Respondents: 118.
    Estimated Total Annual Burden of Respondents: 59 hours.
    (5) Application for Reimbursement of Assessment.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.25 hours per request for 
reimbursement.
    Respondents: First handler and importers.
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 5 hours.
    (6) Application for Certification of Organizations.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per application.
    Respondents: First handlers, importers, producers and marketing 
cooperatives.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 5 hours.
    (7) Nomination Appointment Form.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per application.
    Respondents: First handlers, importers, producers and marketing 
cooperatives.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 5 hours.
    (8) Organic Exemption Form.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hours per exemption form.
    Respondents: First handlers and importers.
    Estimated Number of Respondents: 2.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 1 hour.
    Comments were invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of functions of the 
Order and the Department's oversight of the Order, including whether 
the information will have practical utility; (b) the accuracy of the 
Department's estimate of the burden of the collection of information, 
including the validity of the methodology and assumption used; (c) ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and (d) ways to minimize the burden of the collection of 
information on those who are to respond, including the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology. No 
comments were received on the collection of information part of this 
rule.
    The Packers Order is summarized as follows:
    Section 1212.1 through Section 1212.32 of the Packers Order define 
certain terms, such as honey, first handler, and importer. Section 
1212.30 is corrected to include the term ``or part thereof.''
    Sections 1212.40 through 1212.48 of the Packers Order include 
provisions relating to the Honey Packers and Importers Board. These 
provisions cover establishment and membership; term of office; 
nominations and appointments; removal and vacancies; procedure, 
reimbursement and attendance; powers; duties; and reapportionment of 
the Board, which is the governing body authorized to administer the 
Order through the implementation of programs, plans, projects, budgets, 
contracts to promote and disseminate information about honey, subject 
to oversight by the Department. Section 1212.46(e) and 1212.47(e) are 
corrected in this rule to specify the authority of the Board to enter 
into contracts and agreements as provided for in the Act.
    Sections 1212.50 through 1212.55 cover budget review and approval; 
financial statements; authorize the collection assessments; specify how 
assessments will be used; specify who pays the assessment and how; 
exemptions; and authorize the imposition of a late-payment charge on 
past-due assessments. Section 1212.52(g)(1) is corrected to change the 
word ``establishes'' to ``recommends.''
    The proponent Association recommended an assessment rate of $0.01 
per pound for domestic honey and imported honey and honey products. The 
assessment rate will be reviewed and may be modified after the first 
referendum is conducted as stated in section 1212.81(a)(1).
    Persons failing to remit total assessments due in a timely manner 
may also be subject to actions under federal debt collections 
procedures as set forth in 7 CFR 3.1 through 3.36 for all research and 
promotion programs administered by USDA [60 FR 12533, March 7, 1995].
    Sections 1212.60 through 1212.62 address programs, plans, and 
projects; require the Board to periodically conduct an independent 
review of its overall program; and address patents, copyrights, 
trademarks, information, publications, and product formulations 
developed through the use of assessment funds.
    Sections 1212.70 through 1212.72 concern reporting and 
recordkeeping requirements for persons subject to the Order and protect 
the confidentiality of

[[Page 29397]]

information from such books, records, or reports.
    Sections 1212.80 through 1212.88 describe the rights of the 
Secretary; address referenda; authorize the Secretary to suspend or 
terminate the Packers Order when deemed appropriate; prescribe 
proceedings after suspension or termination; and address personal 
liability, separability, amendments, and the OMB control number.
    The Department conducted a referendum among first handlers and 
importers of honey and honey products from April 2 through April 16, 
2008, to determine whether the Packers Order would become effective. 
The representative period for establishing voter eligibility was from 
January 1 through December 31, 2007. First handlers and importers who 
handled or imported 250,000 pounds or more of honey and honey products 
during the representative period were eligible to vote. Seventy-eight 
percent of those voting, representing ninety-two percent of the volume 
voted in the referendum favored implementation of the program.
    After consideration of all relevant material presented, including 
the initial proposal, comments received, and the referendum results, it 
is found that the Packers Order, authorized under the Commodity 
Promotion, Research, and Information Act of 1996, is consistent with 
and effectuates the declared policy and purpose of the 1996 Act. 
Further, after taking into account the duplicative nature of the 
Proposed Order with the Current Order, it is determined that the 
requirements of the Current Order and regulations issued thereunder 
that honey producers and importers pay assessments on honey and honey 
products no longer tends to effectuate the declared policy of the Honey 
Research, Promotion, and Consumer Information Act and are hereby 
suspended.
    It is also found that good cause exists for not postponing the 
effective date of this action until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because: (1) In order to avoid 
duplication with the Packers Order, this action suspends the 
requirements of the Current Order and regulations that producers and 
importers remit assessments; and (2) implementation of the Packers 
Order is needed as soon as possible to begin assessments under that 
program and to initiate the process of establishing the Honey Packers 
and Importers Board.

List of Subjects in 7 CFR Parts 1212 and 1240

    Administrative practice and procedure, Advertising, Consumer 
Education, Honey and Honey products, 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 as follows:

PART 1240--HONEY RESEARCH, PROMOTION, AND CONSUMER INFORMATION

0
1. The authority citation for Part 1240 continues to read as follows:

    Authority: 7 U.S.C. 4601-4613; 7 U.S.C. 7401.


0
2. In Sec.  1240.41, a note is added immediately following the section 
to read as follows:


Sec.  1240.41  Assessments.

* * * * *

    Note To Sec.  1240.41: The requirement to pay producer and 
importer assessments is suspended indefinitely as of May 22, 2008.


0
3. In Sec.  1240.115, a note is added immediately following the section 
to read as follows:


Sec.  1240.115  Levy of assessments.

* * * * *

    Note To Sec.  1240.115: The requirement to pay producer and 
importer assessments is suspended indefinitely as of May 22, 2008.

PART 1212--HONEY PACKERS AND IMPORTERS RESEARCH, PROMOTION, 
CONSUMER EDUCATION AND INDUSTRY INFORMATION ORDER

0
4. The authority citation for Part 1212 is revised to read as follows:

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


0
5. Add subpart A to part 1212 to read as follows:

Subpart A--Honey Packers and Importers Research, Promotion, 
Consumer Education, and Industry Information Order

Definitions

Sec.
1212.1 Act.
1212.2 Board.
1212.3 Conflict of interest.
1212.4 Department.
1212.5 Exporter.
1212.6 First handler.
1212.7 Fiscal period for marketing year.
1212.8 Handle.
1212.9 Honey.
1212.10 Honey products.
1212.11 Importer.
1212.12 Importer-Handler Representative.
1212.13 Information.
1212.14 Market or marketing.
1212.15 Order.
1212.16 Part and subpart.
1212.17 Person.
1212.18 Plans and programs.
1212.19 Producer.
1212.20 Promotion.
1212.21 Qualified national organization representing handler 
interests.
1212.22 Qualified national organization representing importer 
interests.
1212.23 Qualified national organization representing producer 
interests.
1212.24 Qualified national organization representing cooperative 
interests.
1212.25 Referendum.
1212.26 Research.
1212.27 Secretary.
1212.28 Suspend.
1212.29 State.
1212.30 Terminate.
1212.31 United States.
1212.32 United States Customs Service.

Honey Packers and Importers Board

1212.40 Establishment and membership.
1212.41 Term of office.
1212.42 Nominations and appointments.
1212.43 Removal and vacancies.
1212.44 Procedure.
1212.45 Reimbursement and attendance.
1212.46 Powers.
1212.47 Duties.
1212.48 Reapportionment of Board membership.

Expenses and Assessments

1212.50 Budget and expenses.
1212.51 Financial statements.
1212.52 Assessments.
1212.53 Exemption from assessment.
1212.54 Operating reserve.
1212.55 Prohibition on use of funds.

Promotion, Research, and Information

1212.60 Programs, plans, and projects.
1212.61 Independent evaluation.
1212.62 Patents, copyrights, inventions, product formulations, and 
publications.

Reports, Books, and Records

1212.70 Reports.
1212.71 Books and records.
1212.72 Confidential treatment.

Miscellaneous

1212.80 Right of the Secretary.
1212.81 Referenda.
1212.82 Suspension or termination.
1212.83 Proceedings after termination.
1212.84 Effect of termination or amendment.
1212.85 Personal liability.
1212.86 Separability.
1212.87 Amendments.
1212.88 OMB Control Numbers.

[[Page 29398]]

Subpart A--Honey Packers and Importers Research, Promotion, 
Consumer Education, and Industry Information Order

Definitions


Sec.  1212.1  Act.

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


Sec.  1212.2  Board.

    ``Board'' or ``Honey Packers and Importers Board'' means the 
administrative body established pursuant to Sec.  1212.40, or such 
other name as recommended by the Board and approved by the Department.


Sec.  1212.3  Conflict of interest.

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


Sec.  1212.4  Department.

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


Sec.  1212.5  Exporter.

    ``Exporter'' means any person who exports honey or honey products 
from the United States.


Sec.  1212.6  First handler.

    ``First handler'' means the first person who buys or takes 
possession of honey or honey products from a producer for marketing. If 
a producer markets honey or honey products directly to consumers, that 
producer shall be considered to be the first handler with respect to 
the honey produced by the producer.


Sec.  1212.7  Fiscal period.

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


Sec.  1212.8  Handle.

    ``Handle'' means to process, package, sell, transport, purchase or 
in any other way place honey or honey products, or causes them to be 
placed, in commerce. This term includes selling unprocessed honey that 
will be consumed without further processing or packaging. This term 
does not include the transportation of unprocessed honey by the 
producer to a handler or transportation by a commercial carrier of 
honey, whether processed or unprocessed for the account of the first 
handler or producer.


Sec.  1212.9  Honey.

    ``Honey'' means the nectar and saccharine exudations of plants that 
are gathered, modified, and stored in the comb by honeybees, including 
comb honey.


Sec.  1212.10  Honey products.

    ``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% honey by weight.


Sec.  1212.11  Importer.

    ``Importer'' means any person who imports for sale honey or honey 
products into the United States as a principal or as an agent, broker, 
or consignee of any person who produces honey or honey products 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 honey or honey 
products.


Sec.  1212.12  Importer-Handler Representative.

    ``Importer-Handler Representative'' means any person who is an 
importer and first handler, who must import at least 75 percent of the 
honey they market in the United States and must handle at least 250,000 
pounds annually.


Sec.  1212.13  Information.

    ``Information'' means activities or programs designed to develop 
new and existing markets, new and existing marketing strategies and 
increased efficiency and activities to enhance the image of honey and 
honey products. These include:
    (a) Consumer education, which means any action taken to provide 
information to, and broaden the understanding of, the general public 
regarding the consumption, use, nutritional attributes, and care of 
honey and honey products; and
    (b) Industry information, which means information and programs that 
will lead to the development of new markets, new marketing strategies, 
or increased efficiency for the honey industry, and activities to 
enhance the image of the honey industry.


Sec.  1212.14  Market or marketing.

    (a) ``Marketing'' means the sale or other disposition of honey or 
honey products in any channel of commerce.
    (b) ``Market'' means to sell or otherwise dispose of honey or honey 
products in interstate, foreign, or intrastate commerce.


Sec.  1212.15  Order.

    ``Order'' means the Honey Packers and Importers Research, 
Promotion, Consumer Education and Industry Information Order.


Sec.  1212.16  Part and subpart.

    ``Part'' means the Honey Packers and Importers Research, Promotion, 
Consumer Education, and Industry Information Order (Order) and all 
rules, regulations, and supplemental orders issued pursuant to the Act 
and the Order. The Order shall be a ``subpart'' of such part.


Sec.  1212.17  Person.

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


Sec.  1212.18  Plans and programs.

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


Sec.  1212.19  Producer.

    ``Producer'' means any person who is engaged in the production and 
sale of honey in any State and who owns, or shares the ownership and 
risk of loss of the production of honey or a person who is engaged in 
the business of producing, or causing to be produced, honey beyond 
personal use and having value at first point of sale.


Sec.  1212.20  Promotion.

    ``Promotion'' means any action, including paid advertising and 
public relations that presents a favorable image for honey or honey 
products to the public and food industry with the intent of improving 
the perception and competitive position of honey and stimulating sales 
of honey or honey products.


Sec.  1212.21  Qualified national organization representing first 
handler interests.

    ``Qualified national organization representing first handler 
interests'' means an organization that the Secretary certifies as being 
eligible to nominate first handler and alternate first handler members 
of the Board under Sec.  1212.42.


Sec.  1212.22  Qualified national organization representing importer 
interests.

    ``Qualified national organization representing importer interests'' 
means an organization that the Secretary certifies as being eligible to 
nominate

[[Page 29399]]

importer, importer-handler, and alternate importer and importer-handler 
members of the Board under Sec.  1212.42.


Sec.  1212.23  Qualified national organization representing producer 
interests.

    ``Qualified national organization representing producer interests'' 
means an organization that the Secretary certifies as being eligible to 
nominate producer and alternate producer members of the Board under 
Sec.  1212.42.


Sec.  1212.24  Qualified national organization representing cooperative 
interests.

    ``Qualified national organization representing cooperative 
interests'' means an organization that the Secretary certifies as being 
eligible to nominate cooperative and alternate cooperative members of 
the Board under Sec.  1212.42.


Sec.  1212.25  Referendum.

    ``Referendum'' means a referendum to be conducted by the Secretary 
pursuant to the Act whereby first handlers and importers shall be given 
the opportunity to vote to determine whether the implementation of or 
continuance of this part is favored by a majority of eligible persons 
voting in the referendum and a majority of volume voted in the 
referendum.


Sec.  1212.26  Research.

    ``Research'' means any type of test, study, or analysis designed to 
advance the image, desirability, use, marketability, production, 
product development, or quality of honey and honey products, including 
research relating to nutritional value, cost of production, new product 
development, testing the effectiveness of market development and 
promotion efforts. Such term shall also include studies on bees to 
advance the cost effectiveness, competitiveness, efficiency, pest and 
disease control, and other management aspects of beekeeping, honey 
production, and honey bees.


Sec.  1212.27  Secretary.

    ``Secretary'' means the Secretary of Agriculture of the United 
States, or any other officer or employee of the Department to whom 
authority the Secretary delegated the authority to act on his or her 
behalf.


Sec.  1212.28  Suspend.

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


Sec.  1212.29  State.

    ``State'' means any of the fifty States of the United States of 
America, the District of Columbia, the Commonwealth of Puerto Rico and 
the territories and possessions of the United States.


Sec.  1212.30  Terminate.

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


Sec.  1212.31  United States.

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


Sec.  1212.32  United States Customs Service.

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

Honey Packers and Importers Board


Sec.  1212.40  Establishment and membership.

    The Honey Packers and Importers Board is established to administer 
the terms and provisions of this part. The Board shall have ten 
members, composed of three first handler representatives, two importer 
representatives, one importer-handler representative, three producer 
representatives, and one marketing cooperative representative. The 
importer-handler representative must import at least 75 percent of the 
honey or honey products they market in the United States and handle at 
least 250,000 pounds annually. In addition, the producer 
representatives must produce a minimum of 150,000 pounds of honey in 
the United States annually based on the best three-year average of the 
most recent five calendar years, as certified by producers. The 
Secretary will appoint members to the Board from nominees submitted in 
accordance with Sec.  1212.42. The Secretary shall also appoint an 
alternate for each member.


Sec.  1212.41  Term of office.

    With the exception of the initial Board, each Board member and 
alternate will serve a three-year term or until the Secretary selects 
his or her successor. No member or alternate may serve more than two 
consecutive terms, excluding any initial two-year term of office. The 
terms of the initial Board members shall be staggered for two-, three-, 
and four-year terms. For the initial Board, one producer, one first 
handler, one importer, and the representative of a national honey 
cooperative will serve a two-year term of office. One producer, one 
first handler, and the importer-handler representative, will serve a 
three-year term of office. One producer, one first handler, and one 
importer will serve a four-year term of office. Determination of which 
of the initial members and their alternates shall serve two-year, 
three-year or four-year terms, shall be designated by the Secretary. 
Thereafter, each of these positions will carry a full three-year term. 
Members serving initial terms of two or four years will be eligible to 
serve a second term of three years. Each term of office will end on 
December 31, with new terms of office beginning on January 1. If this 
part becomes effective on a date such that the initial period is less 
than six months in duration, then the tolling of time for purposes of 
this subsection shall not begin until the beginning of the first 12-
month fiscal period.


Sec.  1212.42  Nominations and appointments.

    All nominations to the Board will be made as follows:
    (a) All qualified national organizations representing first handler 
interests will have the opportunity to participate in a nomination 
caucus and will, to the extent practical, submit as a group a single 
slate of nominations to the Secretary for the first handler positions 
and the alternate positions on the Board. If the Secretary determines 
that there are no qualified national organizations representing first 
handler interests, individual first handlers who have paid assessments 
to the Board in the most recent fiscal period may submit nominations. 
For the initial Board, persons that meet the definition of first 
handlers as defined in this subpart will certify their qualification 
and upon certification, if qualified, may submit nominations.
    (b) All qualified national organizations representing importer 
interests will have the opportunity to participate in a nomination 
caucus and will, to the extent practical, submit as a group a single 
slate of nominations to the Secretary for importer positions, for the 
importer-handler position and for the alternate positions on the Board. 
If the Secretary determines that there are no qualified national 
organizations representing importer interests, individual importers who 
have paid assessments to the Board in the most recent fiscal period may 
submit nominations. For the initial Board, persons that meet the 
definition of importer as defined in this subpart will certify such 
qualification and upon certification, if qualified, may submit 
nominations.
    (c) All qualified national organizations representing producer

[[Page 29400]]

interests will have the opportunity to participate in a nomination 
caucus and will, to the extent practical, submit as a group a single 
slate of nominations to the Secretary for the producer positions and 
the producer alternate positions on the Board. If the Secretary 
determines that there are no qualified national organizations 
representing producer interests, individual producers may submit 
nominations to the Secretary. For the initial Board, persons that meet 
the definition of producer as defined in this subpart will certify such 
qualification and upon certification, if qualified, may submit 
nominations.
    (d) For the purposes of this subpart, a national honey-marketing 
cooperative means any entity that is organized under the Capper-
Volstead Act (7 U.S.C. 291) or state law as a cooperative and markets 
honey or honey products in at least 20 states. All national honey-
marketing cooperatives that are first handlers will have the 
opportunity to participate in a nomination caucus and will, to the 
extent practical, submit as a group a single slate of nominations to 
the Secretary of persons who serve as an officer, director, or employee 
of a national honey marketing cooperative for the cooperative position 
and the alternate position on the Board.
    (e) Eligible organizations, cooperatives, producers, first handlers 
or importers must submit nominations to the Secretary six months before 
the new Board term begins. At least two nominees for each position to 
be filled must be submitted.
    (f) Qualified national organization representing first handler 
interests. To be certified by the Secretary as a qualified national 
organization representing first handler interests, an organization must 
meet the following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization's voting membership must be comprised 
primarily of first handlers of honey or honey products;
    (2) The organization must represent a substantial number of first 
handlers who market a substantial volume of honey or honey products in 
at least 20 states;
    (3) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (4) The organization must have as a primary purpose promoting honey 
first handlers' economic welfare;
    (5) The organization must derive a portion of its operating funds 
from first handlers; and
    (6) The organization must demonstrate it is willing and able to 
further the Act's purposes.
    (g) Qualified national organization representing importer 
interests. To be certified as a qualified national organization 
representing importer interests, an organization must meet the 
following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization's importer membership must represent at least 
a majority of the volume of honey or honey products imported into the 
United States;
    (2) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (3) The organization must have as a primary purpose promoting honey 
importers' economic welfare;
    (4) The organization must derive a portion of its operating funds 
from importers; and
    (5) The organization must demonstrate it is willing and able to 
further the Act's purposes.
    (h) Qualified national organization representing producer 
interests. To be certified by the Secretary as a qualified national 
organization representing producer interests, an organization must meet 
the following criteria, as evidenced by a report submitted by the 
organization to the Secretary:
    (1) The organization's membership must be comprised primarily of 
honey producers;
    (2) The organization must represent a substantial number of 
producers who produce a substantial volume of honey in at least 20 
states;
    (3) The organization has a history of stability and permanency and 
has been in existence for more than one year;
    (4) The organization must have as one of its primary purposes 
promoting honey producers' economic welfare;
    (5) The organization must derive a portion of its operating funds 
from producers; and
    (6) The organization must demonstrate it is willing and able to 
further the Act's purposes.
    (i) To be certified by the Secretary as a qualified national 
organization representing first handler, producer or importer 
interests, an organization must agree to:
    (1) Take reasonable steps to publicize to non-members the 
availability of open Board first handler, producer or importer 
positions; and
    (2) Consider nominating a non-member first handler, producer or 
importer, if he or she expresses an interest in serving on the Board.
    (j) National honey-marketing cooperative. The Secretary can certify 
that an entity qualifies as a national honey-marketing cooperative, as 
defined in Sec.  1212.42(d). Such an entity shall not be eligible for 
certification as a qualified national organization representing 
producer interests.


Sec.  1212.43  Removal and vacancies.

    (a) In the event that any member or alternate of the Board ceases 
to be a member of the category of members from which the member was 
appointed to the Board, such position shall become vacant.
    (b) The Board may recommend to the Secretary that a member be 
removed from office if the member consistently refuses to perform his 
or her duties or engages in dishonest acts or willful misconduct. The 
Secretary may remove the member if he or she finds that the Board's 
recommendation shows adequate cause.
    (c) A vacancy for any reason will be filled as follows:
    (1) If a member position becomes vacant, the alternate for that 
position will serve the remainder of the member's term. In accordance 
with Sec.  1212.42, the Secretary will request nominations for a 
replacement alternate and will appoint a nominee to serve the remainder 
of the term. The Secretary does not have to appoint a replacement if 
the unexpired term is less than six months.
    (2) If both a member position and an alternate position become 
vacant, in accordance with Sec.  1212.42, the Secretary will request 
nominations for replacements and appoint a member and alternate to 
serve the remainder of the term. The Secretary does not have to appoint 
a new member or alternate if the unexpired term for the position is 
less than six months.
    (3) No successor appointed to a vacated term of office shall serve 
more than two successive three-year terms on the Board.


Sec.  1212.44  Procedure.

    (a) A majority of the Board members will constitute a quorum so 
long as at least one of the members present is an importer member and 
one of the members present is a first handler member. An alternate will 
be counted for the purpose of determining a quorum only if a member 
from his or her membership class is absent or disqualified from 
participating. Any Board action will require the concurring votes of a 
majority of those present and voting; with the exception of the two-
thirds vote requirement in Sec.  1212.52(f). All votes at meetings will 
be cast in person. The Board must give timely notice of all Board and 
committee meetings to members and alternates.

[[Page 29401]]

    (b) The Board may take action by any means of communication when, 
in the opinion of the Board chairperson, an emergency requires that 
action must be taken before a meeting can be called. Any action taken 
under this procedure is valid only if:
    (1) All members and the Secretary are notified and the members are 
provided the opportunity to vote;
    (2) Each proposition is explained accurately, fully, and 
substantially identically to each member;
    (3) With the exception of the two-thirds vote requirement in Sec.  
1212.52(f), a majority of the members vote in favor of the action; and
    (4) All votes are promptly confirmed in writing and recorded in the 
Board minutes.


Sec.  1212.45  Reimbursement and attendance.

    Board members and alternates, when acting as members, will serve 
without compensation but will be reimbursed for reasonable travel 
expenses, as approved by the Board, that they incur when performing 
Board business. The Board may request that alternates attend any 
meeting even if their respective members are expected to attend or 
actually attend the meeting.


Sec.  1212.46  Powers.

    The Board shall have the following powers subject to Sec.  1212.80:
    (a) Administer this subpart in accordance with its terms and 
provisions of the Act;
    (b) Require its employees to receive, investigate, and report to 
the Secretary complaints of violations of this part;
    (c) Recommend adjustments to the assessments as provided in this 
part;
    (d) Recommend to the Secretary amendments to this part;
    (e) Establish, issue, and administer appropriate programs and enter 
into contracts or agreements with the approval of the Secretary for 
promotion, research, and information programs and plans including 
consumer and industry information, and advertising designed to 
strengthen the honey industry's position in the marketplace and to 
maintain, develop, and expand domestic and foreign markets for honey 
and honey products; and
    (f) Invest assessments collected and other funds received pursuant 
to the Order and use earnings from invested assessments to pay for 
activities carried out pursuant to the Order.


Sec.  1212.47  Duties.

    The Board shall have, among other things, the following duties:
    (a) To meet and organize, and to select from among its members a 
chairperson and such other officers as may be necessary; to select 
committees and subcommittees from its membership and other industry 
representatives; and to develop and recommend such rules, regulations, 
and by-laws to the Secretary for approval to conduct its business as it 
may deem advisable;
    (b) To employ or contract with such persons as it may deem 
necessary and to determine the compensation and define the duties of 
each; and to protect the handling of Board funds through fidelity 
bonds;
    (c) To prepare and submit to the Secretary for approval 60 days in 
advance of the beginning of a fiscal period, a budget of anticipated 
expenses in the administration of this part including the probable 
costs of all programs and plans and to recommend a rate of assessment 
with respect thereto.
    (d) To investigate violations of this part and report the results 
of such investigations to the Secretary for appropriate action to 
enforce the provisions of this part.
    (e) To establish, issue, and administer appropriate programs and 
enter into contracts or agreements with the approval of the Secretary 
for promotion, research, and information including consumer and 
industry information, and advertising designed to strengthen the honey 
industry's position in the marketplace and to maintain, develop, and 
expand domestic and foreign markets for honey and honey products.
    (f) To maintain minutes, books, and records and prepare and submit 
to the Secretary such reports from time to time as may be required for 
appropriate accounting with respect to the receipt and disbursement of 
funds entrusted to it.
    (g) To periodically prepare and make public and to make available 
to first handlers, producers, and importers reports of its activities 
and, at least once each fiscal period, to make public an accounting of 
funds received and expended.
    (h) To cause its books to be audited by a certified public 
accountant at the end of each fiscal period and to submit a copy of 
each audit to the Secretary.
    (i) To submit to the Secretary such information pertaining to this 
part or subpart as he or she may request.
    (j) To give the Secretary the same notice of Board meetings and 
committee meetings that is given to members in order that the 
Secretary's representative(s) may attend such meetings, and to keep and 
report minutes of each meeting to the Secretary.
    (k) To notify first handlers, importers, and producers of all Board 
meetings through press releases or other means.
    (l) To appoint and convene, from time to time, working committees 
or subcommittees that may include first handlers, importers, exporters, 
producers, members of the wholesale or retail outlets for honey, or 
other members of the honey industry and the public to assist in the 
development of research, promotion, advertising, and information 
programs for honey and honey products.
    (m) To develop and recommend such rules and regulations to the 
Secretary for approval as may be necessary for the development and 
execution of plans or activities to effectuate the declared purpose of 
the Act.
    (n) To provide any patents, copyrights, inventions, product 
formulations, or publications developed through the use of funds 
collected under the provisions of this subpart shall be the property of 
the U.S. Government, as represented by the Board, and shall along with 
any rents, royalties, residual payments, or other income from the 
rental, sales, leasing, franchising, or other uses of such patents, 
copyrights, trademarks, information, publications, or product 
formulations, inure to the benefit of the Board; shall be considered 
income subject to the same fiscal, budget, and audit controls as other 
funds of the Board; and may be licensed subject to approval by the 
Department.


Sec.  1212.48  Reapportionment of Board membership.

    At least once in each 5-year period, but not more frequently than 
once in each 3-year period, the Board shall:
    (a) Review, based on a three-year average, the geographical 
distribution in the United States of the production of honey and the 
quantity or value of the honey and honey products imported into the 
United States; and
    (b) If warranted, recommend to the Secretary the reapportionment of 
the Board membership to reflect changes in the geographical 
distribution of the production of honey and the quantity or value of 
the honey and honey products imported into the United States.

Expenses and Assessments


Sec.  1212.50  Budget and expenses.

    (a) At least 60 days prior to the beginning of each fiscal period, 
and as may be necessary thereafter; the Board shall prepare and submit 
to the Department a budget for the fiscal period covering its 
anticipated expenses and disbursements in administering this subpart. 
The budget shall allocate five percent (5%) of the Board's anticipated

[[Page 29402]]

revenue from assessments each fiscal period for production research and 
research relating to the production of honey.
    Each such budget shall include:
    (1) A statement of objectives and strategy for each program, plan, 
or project;
    (2) A summary of anticipated revenue, with comparative data or at 
least one preceding year (except for the initial budget);
    (3) A summary of proposed expenditures for each program, plan, or 
project; and
    (4) Staff and administrative expense breakdowns, with comparative 
data for at least one preceding year (except for the initial budget).
    (b) Each budget shall provide adequate funds to defray its proposed 
expenditures and to provide for a reserve as set forth in this subpart.
    (c) Subject to this section, any amendment or addition to an 
approved budget must be approved by the Department, including shifting 
funds from one program, plan, or project to another. Shifts of funds 
which do not cause an increase in the Board's approved budget and which 
are consistent with governing bylaws need not have prior approval by 
the Department.
    (d) The Board is authorized to incur such expenses, including 
provision for a reserve, as the Department finds reasonable and likely 
to be incurred by the Board for its maintenance and functioning, and to 
enable it to exercise its powers and perform its duties in accordance 
with the provisions of this subpart. Such expenses shall be paid from 
funds received by the Board.
    (e) With approval of the Department, the Board may borrow money for 
the payment of administrative expenses, subject to the same fiscal, 
budget, and audit controls as other funds of the Board. Any funds 
borrowed by the Board shall be expended only for startup costs and 
capital outlays and are limited to the first year of operation of the 
Board.
    (f) The Board may accept voluntary contributions, but these shall 
only be used to pay expenses incurred in the conduct of programs, 
plans, and projects. Voluntary contributions shall be free from any 
encumbrance by the donor, and the Board shall retain complete control 
of their use.
    (g) The Board shall reimburse the Department for all expenses 
incurred by the Department in the implementation, administration, 
enforcement and supervision of the Order, including all referendum 
costs in connection with the Order.
    (h) The Board may not expend for administration, maintenance, and 
functioning of the Board in any calendar year an amount that exceeds 15 
percent of the assessments and other income received by the Board for 
that calendar year. Reimbursements to the Department required under 
paragraph (g) of this section, are excluded from this limitation on 
spending.
    (i) The Board may also receive funds provided through the 
Department's Foreign Agricultural Service or from other sources, with 
the approval of the Secretary, for authorized activities.


Sec.  1212.51  Financial statements.

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


Sec.  1212.52  Assessments.

    (a) The Board will cover its expenses by levying in a manner 
prescribed by the Secretary an assessment on first handlers and 
importers.
    (b) Each first handler shall pay an assessment to the Board at the 
rate of $0.01 per pound of domestically produced honey or honey 
products the first handler handles. A producer shall pay the Board the 
assessment on all honey or honey products for which the producer is the 
first handler.
    (c) Each first handler responsible for remitting assessments under 
paragraph (b) of this section shall remit the amounts due to the 
Board's office on a monthly basis no later than the fifteenth day of 
the month following the month in which the honey or honey products were 
marketed.
    (d) Each importer shall pay an assessment to the Board at the rate 
of $0.01 per pound of honey or honey products the importer imports into 
the United States. An importer shall pay the assessment to the Board 
through the United States Customs Service (Customs) when the honey or 
honey products being assessed enters the United States. If Customs does 
not collect an assessment from an importer, the importer is responsible 
for paying the assessment to the Board.
    (e) The import assessment recommended by the Board and approved by 
the Secretary shall be uniformly applied to imported honey or honey 
products that are identified as HTS heading numbers 0409.00.00 and 
2106.90.9988 by the Harmonized Tariff Schedule of the United States.
    (f) The Board may recommend to the Secretary an increase or 
decrease in the assessment as it deems appropriate by at least a two-
thirds vote of members present at a meeting of the Board. The Board may 
not recommend an increase in the assessment of more than $0.02 per 
pound of honey or honey products and may not increase the assessment by 
more than $0.0025 in any single fiscal year.
    (g) In situations of late payment:
    (1) The Board shall impose a late payment charge on any first 
handler or importer who fails to remit to the Board the total amount 
for which the first handler or importer is liable on or before the 
payment due date the Board recommends. The amount of the late payment 
charge shall be prescribed by the Department.
    (2) The Board shall require any first handler or importer subject 
to a late payment charge to pay interest on the unpaid assessments for 
which the first handler or importer is liable. The rate of interest 
shall be prescribed by the Department.
    (3) First handlers or importers who fail to remit total assessments 
in a timely manner may also be subject to actions under federal debt 
collection procedures.
    (h) Advance payment. The Board may accept advance payment of 
assessments from first handlers or importers that will be credited 
toward any amount for which the first handlers or importers may become 
liable. The Board does not have to pay interest on any advance payment.
    (i) If the Board is not in place by the date the first assessments 
are to be collected, the Secretary shall have the authority to receive 
assessments and invest them on behalf of the Board, and shall pay such 
assessments and any interest earned to the Board when it is formed.


Sec.  1212.53  Exemption from assessment.

    (a) A first handler who handles less than 250,000 pounds of honey 
or honey products per calendar year or an importer who imports less 
than 250,000 pounds of honey or honey products per calendar year is 
exempt from paying assessments.

[[Page 29403]]

    (b) A first handler who operates under an approved National Organic 
Program (NOP) (7 CFR part 205) system plan, handles only products that 
are eligible to be labeled as 100 percent organic under the NOP, and is 
not a split operation, shall be exempt from the payment of assessments. 
An importer who imports only products that are eligible to be labeled 
as 100 percent organic under the NOP, and is not a split operation, 
shall be exempt from the payment of assessments.
    (c) A first handler or importer desiring an exemption shall apply 
to the Board, on a form provided by the Board, for a certificate of 
exemption. A first handler shall certify that the first handler will 
handle less than 250,000 of honey and honey products for the calendar 
year for which the exemption is claimed. An importer shall certify that 
the importer will import less than 250,000 pounds of honey and honey 
products during the calendar year for which the exemption is claimed.
    (d) Upon receipt of an application, the Board shall determine 
whether an exemption may be granted. The Board will then issue, if 
deemed appropriate, a certificate of exemption to each person who is 
eligible to receive one. It is the responsibility of these persons to 
retain a copy of the certificate of exemption.
    (e) Exempt importers shall be eligible for reimbursement of 
assessments collected by Customs. These importers shall apply to the 
Board for reimbursement of any assessment paid. No interest will be 
paid on the assessment collected by Customs. Requests for reimbursement 
shall be submitted to the Board within 90 days of the last day of the 
calendar year the honey or honey products were imported.
    (f) If a person has been exempt from paying assessments for any 
calendar year under this section and no longer meets the requirements 
for an exemption, the person shall file a report with the Board in the 
form and manner prescribed by the Board and begin to pay the assessment 
on all honey or honey products handled or imported.
    (g) Any person who desires an exemption from assessments for a 
subsequent calendar year shall reapply to the Board, on a form provided 
by the Board, for a certificate of exemption.
    (h) The Board may recommend to the Secretary that honey and honey 
products exported from the United States be exempt from this subpart 
and recommend procedures for refunding assessments paid on exported 
honey and honey products and any necessary safeguards to prevent 
improper use of this exemption.


Sec.  1212.54  Operating reserve.

    The Board may establish an operating monetary reserve and may carry 
over to subsequent fiscal periods excess funds in any reserve so 
established: Provided that the funds in the reserve do not exceed one 
fiscal period's budget. Subject to approval by the Department, such 
reserve funds may be used to defray any expenses authorized under this 
part.


Sec.  1212.55  Prohibition on use of funds.

    (a) The Board may not engage in, and shall prohibit the employees 
and agents of the Board from engaging in:
    (1) Any action that is a conflict of interest;
    (2) Except as otherwise provided in paragraph (b) of this section, 
using funds collected by the Board under the Order to undertake any 
action for the purpose of influencing legislation or governmental 
action or policy, by local, state, national, and foreign governments, 
other than recommending to the Secretary amendments to the Order.
    (3) A program, plan or project conducted pursuant to this subpart 
that includes false or misleading claims on behalf of honey or honey 
products.
    (4) Any advertising, including promotion, research and information 
activities authorized that may be false or misleading or disparaging to 
another agricultural commodity.
    (b) The prohibition in paragraph (a)(2) of this section shall not 
apply:
    (1) To the development and recommendation of amendments to this 
subpart; or
    (2) To the communication to appropriate government officials, in 
response to a request made by the officials, of information relating to 
the conduct, implementation, or results of promotion, research, 
consumer information, education, industry information, or producer 
information activities authorized under this subpart.

Promotion, Research, and Information


Sec.  1212.60  Programs, plans and projects.

    (a) Scope of activities. The Board must develop and submit to the 
Secretary for approval plans and programs authorized by this section. 
The plans and programs may provide for:
    (1) Establishing, issuing, and administering appropriate programs 
for promotion, research, and information including consumer and 
industry information, and advertising designed to strengthen the honey 
industry's position in the marketplace and to maintain, develop, and 
expand domestic and foreign markets for honey and honey products;
    (2) Establishing and conducting research and development activities 
to encourage and expand the acquisition of knowledge about honey and 
honey products, their consumption and use, or to encourage, expand or 
improve the quality, marketing, and utilization of honey and honey 
products;
    (3) Conducting activities that may lead to developing new markets 
or marketing strategies for honey and honey products;
    (4) Conducting activities related to production issues or bee 
research activities; and
    (5) Conducting activities designed to make the honey industry more 
efficient, to improve the quality of honey or to enhance the image of 
honey and honey products and the honey industry.
    (b) No program, plan, or project shall be implemented prior to its 
approval by the Department. Once a program, plan, or project is so 
approved, the Board shall take appropriate steps to implement it.
    (c) The Board must periodically evaluate each plan and program 
authorized under this part to ensure that it contributes to an 
effective and coordinated program of research, promotion and 
information. The Board must submit the evaluations to the Secretary. If 
the Board and the Secretary find that a plan or program does not 
further the purposes of the Act, then such plan or program should be 
terminated.


Sec.  1212.61  Independent evaluation.

    The Board must authorize and fund not less than once every five 
years an independent evaluation of the effectiveness of this subpart 
and the plans and programs conducted by the Board under the Act. The 
Board must submit this independent evaluation to the Secretary and make 
the results available to the public.


Sec.  1212.62  Patents, copyrights, inventions, product formulations, 
and publications.

    Except for a reasonable royalty paid by the Board to the inventor 
of a patented invention, any patents, copyrights, inventions, product 
formulations, or publications developed through the use of funds 
collected under the provisions of this subpart shall be the property of 
the U.S. Government, as represented by the Board, and shall along with 
any rents, royalties, residual payments, or other income from the 
rental, sales, leasing, franchising, or other uses of such patents, 
copyrights, trademarks, information, publications, or product 
formulations, inure to the benefit of the Board; shall be considered 
income subject to the same fiscal,

[[Page 29404]]

budget, and audit controls as other funds of the Board; and may be 
licensed subject to approval by the Department. Upon termination of 
this Order, Sec.  1212.83 shall apply to determine disposition of all 
such property.

Reports, Books, and Records


Sec.  1212.70  Reports.

    (a) Each first handler or importer subject to this part must report 
to the Board, at the time and in the manner it prescribes, and subject 
to the approval of the Secretary, the information the Board deems 
necessary to perform its duties.
    (b) First handlers must report:
    (1) The total quantity of honey and honey products acquired during 
the reporting period;
    (2) The total quantity of honey and honey products handled during 
the period;
    (3) The quantity of honey processed for sale from the first 
handler's own production;
    (4) The quantity of honey and honey products purchased from a first 
handler or importer responsible for paying the assessment due pursuant 
to this Order;
    (5) The date that assessment payments were made on honey and honey 
products handled; and
    (6) The first handler's tax identification number.
    (c) Unless provided by Customs, importers must report:
    (1) The total quantity of honey and honey products imported during 
the reporting period;
    (2) A record of each lot of honey or honey products imported during 
such period, including the quantity, date, country of origin, and port 
of entry; and
    (3) The importer of record's tax identification number.
    (d) The Board may request any other information from first handlers 
and importers that it deems necessary to perform its duties under this 
subpart, subject to the approval of the Secretary.
    (e) The Board, with the Secretary's approval, may request that 
persons claiming an exemption from assessments under Sec.  1212.52(b) 
or (d) must provide it with any information it deems necessary about 
the exemption, including, without limitation, the disposition of 
exempted honey or honey products.


Sec.  1212.71  Books and records.

    Each first handler and importer, including those who are exempt 
under this subpart, must maintain any books and records necessary to 
carry out the provisions of this part, and any regulations issued under 
this part, including the books and records necessary to verify any 
required reports. Books and records must be made available during 
normal business hours for inspection by the Board's or Secretary's 
employees or agents. A first handler or importer must maintain the 
books and records for two years beyond the fiscal period to which they 
apply.


Sec.  1212.72  Confidential treatment.

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

Miscellaneous


Sec.  1212.80  Right of the Secretary.

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


Sec.  1212.81  Referenda.

    (a) After the initial referendum, the Secretary shall conduct 
subsequent referenda;
    (1) Every seven years, to determine whether first handlers and 
importers of honey or honey products favor the continuation, 
suspension, or termination of the Order. The Order shall continue if it 
is favored by a majority of first handlers and importers voting in the 
referendum and a majority of volume voting in the referendum who, 
during a representative period determined by the Secretary, have been 
engaged in the handling or importation of honey or honey products;
    (2) At the request of the Board established in this Order;
    (3) At the request of ten (10) percent or more of the number of 
persons eligible to vote under the Order; or
    (4) Whenever the Department deems that a referendum is necessary.
    (b) Approval of order. Approval in a referendum shall be 
established by a majority of eligible persons voting in the referendum 
and a majority of volume voting in the referendum who are first 
handlers or importers during the representative period by those voting 
as established by the Secretary.
    (c) Manner of conducting referenda. A referendum conducted under 
this section shall be conducted in the manner determined by the 
Secretary to be appropriate.


Sec.  1212.82  Suspension or termination.

    The Secretary shall suspend or terminate the operation of this part 
or subpart or any provision thereof, if the Secretary finds that this 
part or subpart or the provision obstructs or does not tend to 
effectuate the declared policy of the Act.


Sec.  1212.83  Proceedings after termination.

    (a) If this subpart terminates, the Board shall recommend to the 
Secretary up to five of its members to serve as trustees for the 
purpose of liquidating the Board's affairs. Such persons, upon 
designation by the Secretary, will become trustees of any funds and 
property the Board possesses or controls at that time and any existing 
claims it has, including, without limitation, claims for any unpaid or 
undelivered funds or property.
    (b) The trustees will:
    (1) Serve until discharged by the Secretary;
    (2) Carry out the Board's obligations under any contracts or 
agreements entered into pursuant to the Order;
    (3) Account from time to time for all receipts and disbursements 
and deliver all property on hand, together with all the Board's and 
trustees' books and records to any person the Secretary directs; and
    (4) Execute at the Secretary's direction any assignments or other 
instruments necessary or appropriate to vest in any person full title 
and right to all of the funds, property, and claims owned by the Board 
or the trustees under this subpart.
    (c) Any person to whom funds, property, or claims have been

[[Page 29405]]

transferred or delivered pursuant to the Order will be subject to the 
same obligations imposed upon Board and the trustees.
    (d) Any residual funds not required to defray the necessary 
expenses of liquidation shall be turned over to the Department to be 
disposed of, to the extent practical, to one or more honey industry 
organizations in the interest of continuing honey promotion, research, 
and information programs.


Sec.  1212.84  Effect of termination or amendment.

    Unless otherwise expressly provided by the Secretary, terminating 
or amending this subpart or any regulation issued under it will not:
    (a) Affect or waive any right, duty, obligation, or liability that 
arose or may arise in connection with any provision of this part;
    (b) Release or extinguish any violation of this part; or
    (c) Affect or impair any rights or remedies of the United States or 
any person with respect to any violation.


Sec.  1212.85  Personal liability.

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


Sec.  1212.86  Separability.

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


Sec.  1212.87  Amendments.

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


Sec.  1212.88  OMB control number.

    The control number assigned to the information collection 
requirements in this part 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 0505-0001, and OMB control number 0581-[NEW, to 
be assigned by OMB].

    Dated: May 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1282 Filed 5-16-08; 3:33 pm]
BILLING CODE 3410-02-P


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