[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Rules and Regulations]
[Pages 11470-11473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-899]



[[Page 11469]]

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Part II





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Parts 1212 and 1240



Honey Packers and Importers Research, Promotion, Consumer Education and 
Industry Information Order; Referendum Procedures; Final Rule and 
Proposed Rule

Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules 
and Regulations

[[Page 11470]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1212

[Docket No. AMS-FV-06-0176; FV-03-704-FR-2B]
RIN 0581-AC37


Honey Packers and Importers Research, Promotion, Consumer 
Education and Industry Information Order; Referendum Procedures

AGENCY: Agricultural Marketing Service, Agriculture, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes procedures which the Department of 
Agriculture (USDA or the Department) will use in conducting a 
referendum to determine whether the issuance of the proposed Honey 
Packers and Importers Research, Promotion, Consumer Education and 
Industry Information Order (Order) is favored by first handlers and 
importers of honey or honey products. The Order will be implemented if 
it is approved by a majority of the eligible first handlers and 
importers voting in the referendum, which also represents a majority of 
the volume of honey and honey products handled and imported during the 
representative period. These procedures will also be used for any 
subsequent referendum under the Order, if it is approved in the initial 
referendum. The proposed Order is being published separately in this 
issue of the Federal Register. This proposed program would be 
implemented under the Commodity Promotion, Research, and Information 
Act of 1996.

DATES: Effective Date: March 4, 2008.

FOR FURTHER INFORMATION CONTACT: Kathie M. Notoro, Marketing 
Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, 
Room 0632-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; 
telephone 202-720-9915 or (888) 720-9917 (toll free) or e-mail 
<a href="/cdn-cgi/l/email-protection#abc0cadfc3c2ce85c5c4dfc4d9c4ebded8cfca85ccc4dd"><span class="__cf_email__" data-cfemail="e68d87928e8f83c8888992899489a693958287c8818990">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible first handlers and importers of honey or honey products to 
determine whether they favor issuance of the proposed Honey Packers and 
Importers Research, Promotion, Consumer Education and Industry 
Information Order (Order) [7 CFR part 1212]. The program will be 
implemented if it is approved by a majority of the first handlers and 
importers voting in the referendum, which also represents a majority of 
the volume of honey and honey products handled and imported during the 
representative period. The Order is authorized under the Commodity 
Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-
7425]. It would cover domestic first handlers and importers of honey 
and honey products of 250,000 pounds or more. A proposed rule and 
referendum order is being published separately in this issue of the 
Federal Register.
    Prior documents: Proposed rules on both the Order [72 FR 30923] and 
the Referendum Procedures [72 FR 30940] were published in the Federal 
Register on June 4, 2007, with a 60-day comment period.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by OMB.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect.
    Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under Section 519 of the Act, a person subject to an order may file 
a petition with USDA stating that an order, any provision of an order, 
or any obligation imposed in connection with an order, is not 
established in accordance with the law, and may request a modification 
of an order or an exemption from an order. Any petition filed 
challenging an order, any provision of an order, or any obligation 
imposed in connection with an order, shall be filed within two years 
after the effective date of an order, provision or obligation subject 
to challenge in the petition. The petitioner will have the opportunity 
for a hearing on the petition. Thereafter, USDA will issue a ruling on 
the petition. The Act provides that the district court of the United 
States for any district in which the petitioner resides or conducts 
business shall be the jurisdiction to review a final ruling on the 
petition, if the petitioner files a complaint for that purpose not 
later than 20 days after the date of entry of USDA's final ruling.

Final Regulatory Flexibility Analysis

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601 et seq.], the Agency is required to examine the impact of this rule 
on small entities. The purpose of the RFA is to fit regulatory actions 
to the scale of businesses subject to such action so that small 
businesses will not be disproportionately burdened.
    The Act, which authorizes the Department to consider industry 
proposals for generic programs of promotion, research, and information 
for agricultural commodities, became effective on April 4, 1996. The 
Act provides for alternatives within the terms of a variety of 
provisions.
    Paragraph (e) of Section 518 of the Act provides three options for 
determining industry approval of a new research and promotion program: 
(1) By a majority of those persons voting; (2) by persons voting for 
approval who represent a majority of the volume of the agricultural 
commodity; or (3) by a majority of those persons voting for approval 
who also represent a majority of the volume of the agricultural 
commodity. In addition, Section 518 of the Act provides for referenda 
to ascertain approval of an order to be conducted either prior to its 
going into effect or within three years after assessments first begin 
under an order. The National Honey Packers and Dealers Association 
(Association) has recommended that the Department conduct a referendum 
in which approval of an order would be based on a majority of the first 
handlers and importers voting who also represent a majority of the 
volume voting in the referendum. The Department is conducting a 
referendum prior to the proposed Order going into effect.
    This rule establishes the procedures under which first handlers and 
importers of honey or honey products will vote on whether they want a 
honey promotion, research, and information program to be implemented. 
This rule adds a new subpart which establishes procedures to conduct 
initial and future referenda. The subpart covers definitions, voting 
instructions, use of subagents, ballots, the referendum report, and 
confidentiality of information.
    There are approximately 45 first handlers and 30 importers of honey 
and honey products who would be subject to the program and eligible to 
vote in the first referendum. The Small Business Administration [13 CFR 
121.201] defines small agricultural service firms as those having 
annual receipts of $6.5 million or less. First handlers and importers 
would be considered agricultural service firms. Using these criteria, 
most first handlers would be considered small businesses while most 
importers would not.
    National Agricultural Statistic Service (NASS) data reports that 
U.S.

[[Page 11471]]

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.
    There is a current Honey Research, Promotion, and Consumer 
Information Program in effect (7 CFR part 1240). Based on the 
assessment reports in connection with the current honey program, 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. In 2006, 155 million pounds of 
honey were produced in the United States, 279.4 million pounds were 
imported and 7.6 million pounds were exported.
    This rule provides the procedures under which first handlers and 
importers of honey or honey products will vote on whether they want the 
Order to be implemented. In accordance with the provisions of the Act, 
subsequent referenda may be conducted, and it is anticipated that these 
procedures will apply. There are approximately 45 first handlers and 30 
importers who will be eligible to vote in the first referendum. First 
handlers and importers of less than 250,000 pounds of honey and honey 
products annually would be exempt from assessments and not eligible to 
vote in the referendum.
    USDA will keep these individuals informed throughout the program 
implementation and referendum process to ensure that they are aware of 
and are able to participate in the program implementation process. USDA 
will also publicize information regarding the referendum process so 
that trade associations and related industry media can be kept 
informed.
    Voting in the referendum is optional. However, if first handlers 
and importers choose to vote, the burden of voting will be offset by 
the benefits of having the opportunity to vote on whether or not they 
want to be covered by the program.
    The information collection requirements contained in this rule are 
designed to minimize the burden on first handlers and importers. This 
rule provides for a ballot to be used by eligible first handlers and 
importers to vote in the referendum. The estimated annual cost of 
providing the information by an estimated 45 first handlers and for an 
estimated 30 importers would be $45.00 for all first handlers or $1.00 
per first handler and $30.00 for all importers or $1.00 per importer.
    USDA considered requiring eligible voters to vote in person at 
various USDA offices across the country. USDA also considered 
electronic voting, but the use of computers is not universal. 
Conducting the referendum from one central location by mail ballot will 
be more cost effective and reliable. USDA will provide easy access to 
information for potential voters through a toll free telephone line.
    With the exception of the Current Order's referendum rules, there 
are no federal rules that duplicate, overlap, or conflict with this 
rule.

Paperwork Reduction Act

    In accordance with the OMB regulation [5 CFR 1320] which implements 
the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the 
referendum ballot, which represents the information collection and 
recordkeeping requirements that may be imposed by this rule, was 
submitted to OMB for approval and will be approved under OMB Number 
0581-NEW.
    Title: Honey Packers and Importers Research, Promotion, Consumer 
Education and Industry Information Order.
    OMB Number: 0581-NEW.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New information collection for research and 
promotion programs.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act, to provide the 
respondents the type of service they request, and to administer the 
Order. The ballot is needed for the referendum that will be held to 
determine whether first handlers and importers are in favor of the 
program. The information collected is used by USDA to determine whether 
a majority of the eligible first handlers and importers voting in a 
referendum, who also represent a majority of the volume of honey and 
honey products approve of this program.

Referendum Ballot

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
first handler and importer.
    Respondents: First handlers and importers.
    Estimated Number of Respondents: 75.
    Estimated Number of Responses per Respondent: 1 every 5 years 
(0.2).
    Estimated Total Annual Burden on Respondents: 3.75 hours.
    The ballot will be added to the other information collections 
approved for use under OMB Number 0581-NEW.
    The estimated annual cost of providing the information by an 
estimated 45 first handlers would be $45.00 or $1.00 per first handler 
and for an estimated 30 importers would be $30.00 or $1.00 per 
importer.

Background

    The 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 
Association submitted a proposed Order on March 17, 2006. After a 
number of modifications were made by AMS to the Association's petition, 
a proposed rule requesting comments was published in the Federal 
Register [7 CFR 30923] on June 4, 2007. A second proposal addressing 
the comments received is being published in this issue of the Federal 
Register.
    The proposed Order would provide for the development and financing 
of an effective and coordinated program of promotion, research, and 
consumer and industry information for honey and honey products in the 
United States. The program would be funded by an assessment levied on 
first handlers and importers (to be collected by United States Customs 
and Border Protection, referred to as U.S. Customs Service, at time of 
entry into the United States) at an initial rate of 1 cent per pound. 
First handlers and importers of less than 250,000 pounds of honey and 
honey products per year would be exempt from paying assessments. The 
assessments would be used to pay for promotion, research, and consumer 
and industry information; administration, maintenance, and functioning 
of the Honey Packers and Importers Board; and expenses incurred by the 
Department in implementing and administering the Order, including 
referendum costs.
    Section 1206 of the Act requires that a referendum be conducted 
among

[[Page 11472]]

eligible first handlers and importers of honey or honey products to 
determine whether they favor implementation of the Order. That section 
also requires the Order to be approved by a majority of the first 
handlers and importers voting, who also represent a majority of the 
volume of honey and honey products handled and imported during the 
representative period.
    This final rule establishes the procedures under which first 
handlers and importers of honey or honey products will vote on whether 
they want the honey packer and importer promotion, research, and 
information program to be implemented. There are approximately 75 
eligible voters.
    This action adds a new subpart establishing procedures to be used 
in this and future referenda. This subpart covers definitions, voting, 
instructions, and use of subagents, ballots, the referendum report, and 
confidentiality of information.
    Proposed referendum procedures were published in the Federal 
Register on June 4, 2007, [72 FR 30940]. Copies of the rule were made 
available by USDA and the Office of the Federal Register, and was also 
available via the Internet at www.regulations.gov. The rule provided a 
60-day comment period ending on August 3, 2007. There were no comments 
received by the deadline. A nonsubstantive change has been made to the 
proposed regulation for clarity concerning the U.S. Customs Service.
    It is found that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register (5 U.S.C. 553) because given the existence of the Current 
Program, a referendum should be conducted as soon as possible.

List of Subjects in 7 CFR Part 1212

    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 by adding part 1212 to read as 
follows:

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

Subpart A--[Reserved]

Subpart B--Referendum Procedures
Sec.
1212.100 General.
1212.101 Definitions.
1212.102 Voting.
1212.103 Instructions.
1212.104 Subagents.
1212.105 Ballots.
1212.106 Referendum report.
1212.107 Confidential information.
1212.108 OMB control number.

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

Subpart B--Referendum Procedures


Sec.  1212.100  General.

    Referenda to determine whether eligible first handlers and 
importers of honey and honey products favor the issuance, continuance, 
amendment, suspension, or termination of the Honey Packers and 
Importers Research, Promotion, Consumer Education, and Industry 
Information Order shall be conducted in accordance with this subpart.


Sec.  1212.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to re-delegate, or any officer or 
employee of the U.S. Department of Agriculture to whom authority has 
been delegated or may hereafter be delegated to act in the 
Administrator's stead.
    (b) Department means the U.S. Department of Agriculture or any 
officer or employee of the Department to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated, to act 
in the Secretary's stead.
    (c) Eligible first handler means any person (excluding a common or 
contract carrier) who handled 250,000 or more pounds of domestic honey 
and honey products during the representative period, who first buys or 
takes possession of honey or honey products from a producer for 
marketing. If a producer markets the honey directly to consumers, the 
producer shall be considered the first handler with respect to the 
honey produced by the producer.
    (d) Eligible importer means any person who imports 250,000 or more 
pounds of honey and honey products into the United States as a 
principal or as an agent, broker, or consignee of any person who 
produces or handles honey or honey products outside of the United 
States for sale in the United States, and who is listed as the importer 
of record for such honey or honey products that are identified in the 
Harmonized Tariff Schedule of the United States by the numbers 
0409.00.00 and 2106.90.9988, during the representative period. 
Importation occurs when honey or honey products originating outside of 
the United States are released from custody by the United States 
Customs and Border Protection, referred to as the U.S. Customs Service, 
and introduced into the stream of commerce in the United States. 
Included are persons who hold title to foreign produced honey or honey 
products immediately upon release by the U.S. Customs Service, as well 
as any persons who acts on behalf of others, as agents or brokers, to 
secure the release of honey or honey products from the U.S. Customs 
Service when such honey or honey products are entered or withdrawn for 
consumption in the United States.
    (e) Handle means to 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 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.
    (f) Honey means the nectar and saccharine exudations of plants that 
are gathered, modified, and stored in the comb by honeybees, including 
comb honey.
    (g) Honey products mean products where honey is a principal 
ingredient. For purposes of this subpart, a product shall be considered 
to have honey as a principal ingredient, if the product contains at 
least 50 percent honey by weight.
    (h) Order means the Honey Packers and Importers Research, 
Promotion, Consumer Education and Industry Information Order.
    (i) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term ``partnership'' includes, but 
is not limited to:
    (1) A husband and a wife who have title to, or leasehold interest 
in, honey bee colonies or beekeeping equipment as tenants in common, 
joint tenants, tenants by the entirety, or, under community property 
laws, as community property; and
    (2) So-called ``joint ventures'' wherein one or more parties to an 
agreement, informal or otherwise, contributed land and others 
contributed capital, labor, management, equipment, or other services, 
or any variation of such contributions by two or more parties, so that 
it results in the production, handling, or importation of honey or 
honey products for market and the authority to transfer title to the 
honey or honey products so produced, handled or imported.

[[Page 11473]]

    (j) Referendum agent or agent means the individual or individuals 
designated by the Department to conduct the referendum.
    (k) Representative period means the period designated by the 
Department.
    (l) United States or U.S. means collectively the 50 states, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1212.102  Voting.

    (a) Each eligible first handler and eligible importer of honey or 
honey products shall be entitled to cast only one ballot in the 
referendum.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate first handler or importer, or an administrator, 
executor, or trustee or an eligible entity may cast a ballot on behalf 
of such entity. Any individual so voting in a referendum shall certify 
that such individual is an officer or employee of the eligible entity, 
or an administrator, executive, or trustee of an eligible entity and 
that such individual has the authority to take such action. Upon 
request of the referendum agent, the individual shall submit adequate 
evidence of such authority.
    (c) All ballots are to be cast by mail, as instructed by the 
Department.


Sec.  1212.103  Instructions.

    (a) Referenda. The Order shall not become effective unless the 
Department determines that the Order is consistent with and will 
effectuate the purposes of the Act; and for initial and subsequent 
referenda the Order is favored by a majority of eligible persons voting 
in the referendum and a majority of volume voting in the referendum 
who, during a representative period determined by the Department, have 
been engaged in the handling or importation of honey or honey products 
and are subject to assessments under this Order and excluding those 
exempt from assessment under the Order.
    (b) The referendum agent shall conduct the referendum, in the 
manner provided in this subpart, under the supervision of the 
Administrator. The Administrator may prescribe additional instructions, 
not inconsistent with the provisions of this subpart, to govern the 
procedure to be followed by the referendum agent. Such agent shall:
    (1) Determine the period during which ballots may be cast.
    (2) Provide ballots and related material to be used in the 
referendum. The ballot shall provide for recording essential 
information, including that needed for ascertaining whether the person 
voting, or on whose behalf the vote is cast, is an eligible voter.
    (3) Give reasonable public notice of the referendum:
    (i) By utilizing available media or public information sources, 
without incurring advertising expense, to publicize the dates, places, 
method of voting, eligibility requirements, and other pertinent 
information. Such sources of publicity may include, but are not limited 
to, print and radio; and
    (ii) By such other means as the agent may deem advisable.
    (4) Mail to eligible first handlers and importers whose names and 
addresses are known to the referendum agent, the instructions on 
voting, a ballot, and a summary of the terms and conditions of the 
proposed Order. No person who claims to be eligible to vote shall be 
refused a ballot.
    (5) At the end of the voting period, collect, open, number, and 
review the ballots and tabulate the results in the presence of an agent 
of a third party authorized to monitor the referendum process.
    (6) Prepare a report on the referendum.
    (7) Announce the results to the public.


Sec.  1212.104  Subagents.

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


Sec.  1212.105  Ballots.

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


Sec.  1212.106  Referendum report.

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


Sec.  1212.107  Confidential information.

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


Sec.  1212.108  OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 
is OMB control number 0505-0001, OMB control number 0581-0217, and OMB 
control number 0581-[NEW, to be assigned by OMB].

    Dated: February 26, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-899 Filed 2-26-08; 3:31 pm]
BILLING CODE 3410-02-P


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