34182 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1245 

[Doc. No. AMS–FV–07–0091; FV–07–706– 

PR–1A] 

RIN 0581–AC78 

Establishment of a U.S. Honey 

Producer Research, Promotion, and 

Consumer Information Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: This rule proposes a new U.S. 

honey producer funded research and 

promotion program under the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act). The 

proposed U.S. Honey Producer 

Research, Promotion and Consumer 

Information Order (Proposed U.S. 

Producer Order) was submitted to the 

Department of Agriculture (Department) 

by the American Honey Producers 

Association (AHPA). The Department 

proposes that an initial referendum be 

conducted to ascertain whether the 

persons to be covered by and assessed 

under the Proposed U.S. Producer Order 

favor the Order prior to it going into 

effect. The Proposed U.S. Producer 

Order would provide that producers pay 

an assessment to the U.S. Honey 

Producer Board (Proposed Board) at the 

rate of $0.02 cents per pound of U.S. 

honey produced and shall only be 

imposed on U.S. producers. A producer 

who produces less than 100,000 pounds 

of U.S. honey per year would be eligible 

for a certificate of exemption. 

The Proposed U.S. Producer Order 

also announces the Agricultural 

Marketing Service’s (AMS) intention to 

request approval of new honey 

information collection requirements by 

the Office of Management and Budget 

(OMB) for the Proposed U.S. Producer 

Order. 

DATES: Comments must be received by 

September 14, 2009. Pursuant to the 

Paperwork Reduction Act, comments on 

the information collection burden that 

would result from this proposal must be 

received by September 14, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments on 

the Internet at: http:// 

www.regulations.gov or to the Research 

and Promotion Branch, Fruit and 

Vegetable Programs, Agricultural 

Marketing Service (AMS), U.S. 

Department of Agriculture, Room 0632– 

S, Stop 0244, 1400 Independence 

Avenue SW., Washington, DC 20250– 

0244; fax (202) 205–2800. All comments 

should reference the docket number and 

the date and page number of this issue 

of the Federal Register and will be 

made available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

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

Pursuant to the Paperwork Reduction 

Act (PRA), comments regarding the 

accuracy of the burden estimate, ways to 

minimize the burden, including the use 

of automated collection techniques or 

other forms of information technology, 

or any other aspect of this collection of 

information, should be sent to the above 

address and to the Desk Office for 

Agriculture, Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Coy, Marketing Specialist, 

Research and Promotion Branch, Fruit 

and Vegetable Programs, AMS, USDA, 

Stop 0244, Room 0634–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 

kimberly.coy@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under the Commodity 

Promotion, Research, and Information 

Act of 1996 (1996 Act) (7 U.S.C. 7411– 

7425). 

A proposed rule with the Honey 

Packers and Importers Research, 

Promotion, Consumer Education and 

Industry Information Order (Packers and 

Importers 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 

Original Honey Research, Promotion, 

and Consumer Information Order 

(Original 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]. The final rule establishing 

the Packers and Importers Order was 

published in the Federal Register on 

May 21, 2008 [73 FR 29390]. A final rule 

terminating the Original Order was 

published in the Federal Register on 

April 17, 2009 [74 FR 17767]. 

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. 

Section 524 of the 1996 Act provides 

that it shall not affect or preempt any 

other Federal or State law authorizing 

promotion or research relating to an 

agricultural commodity. 

Under section 519 of the 1996 Act, a 

person subject to an order may file a 

petition with the 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 whether a proposal for an 

order is consistent with and will 

effectuate the purpose of the 1996 Act, 

the Secretary may consider the 

existence of other federal research and 

promotion programs issued under other 

laws. For example, in proposing the 

Packers and Importers Order, under the 

authority of the 1996 Act, the 

Department also proposed that the 

Original Order issued under the Honey 

Research, Promotion, and Consumer 

Information Act (7 U.S.C. 4601–4613) be 

terminated, after taking into account the 

duplicative nature of the two programs. 

As previously noted, a final rule 

terminating the Original Order was 

published in the Federal Register on 

April 17, 2009 [74 FR 17767]. However, 

the Proposed U.S. Producer Order and 

the previously promulgated Packers and 

Importers Order are authorized under 

the same statute, the 1996 Act. 

Nonetheless, a more detailed 

comparison of the provisions of both 

programs appears later in this document 

to assist in the comment process. The 

following is an overview of the two 

programs. 

The Packers and Importers Order and 

the Proposed U.S. Producer Order 

represent different interests within the 

honey industry. The Proposed U.S. 


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Producer Order represents the interests 

of U.S. producers while the Packers and 

Importers Order represents the interests 

of honey packers and importers. In 

addition, assessment requirements on 

both programs are on different parts of 

the industry. 

The Proposed U.S. Producer Order 

provides for assessments to be paid by 

U.S. honey producers that produce in 

excess of 100,000 pounds of U.S. honey 

per year at the rate of $0.02 cents per 

pound of U.S. honey produced. The 

number of entities to be assessed under 

the Proposed U.S. Producer Order 

would be around 317. The first handler 

would be responsible for collecting and 

remitting assessments. The reporting 

burden for the Proposed U.S. Producer 

Order is on the first handler. 

The Packers and Importers Order de 

minimis amount is 250,000 pounds and 

the number of entities assessed is 75. 

Under the Packers and Importers Order, 

first handlers must pay an assessment 

rate of $0.01 per pound on domestically 

produced honey or honey products that 

the handler handles and, each importer 

must pay an assessment of $0.01 per 

pound on honey or honey products the 

importer imports into the United States. 

The reporting burden for the Packers 

and Importers Order is on both the first 

handler and the importer. 

At the initial rate of $0.02 per pound, 

revenue for the Proposed U.S. Producer 

Order would be approximately $1.9 

million. At the initial rate of $0.01 per 

pound for the Packers and Importers 

Order, revenue will be approximately $3 

million. The aggregate collection of 

assessments for the honey industry will 

be approximately $4.9 million. 

The goals of the Proposed U.S. 

Producer Order are to: (1) Develop and 

finance an effective and coordinated 

research, promotion, industry 

information, and consumer education 

program for U.S. honey; (2) support and 

strengthen the position of the U.S. 

honey industry to ultimately increase 

consumption of U.S. honey; and (3) 

develop, maintain, and expand existing 

markets and enhance the image of U.S. 

honey. 

The Department is soliciting 

comments from honey producers, first 

handlers, manufacturers, importers, 

consumers, industry organizations and 

other interested persons on the 

implementation of the Proposed U.S. 

Producer Order. 

Background 

This rule proposes the 

implementation of a U.S. Producer 

Order. The American Honey Producers 

Association (AHPA), which represents 

more than 550 U.S. honey producers, 

submitted a proposal to the Department 

for a national research, promotion, and 

consumer information order for U.S. 

honey on May 24, 2007. 

The Proposed U.S. Producer Order is 

authorized under the 1996 Act. The 

1996 Act authorizes the Department, 

under a generic authority, to establish 

agricultural commodity research and 

promotion orders, which may include a 

combination of promotion, research, 

industry information, and consumer 

information activities funded by 

mandatory assessments. These programs 

are designed to maintain and expand 

markets and uses for agricultural 

commodities. The Proposed U.S. 

Producer Order would provide for the 

continued development and financing 

of a coordinated program of research, 

promotion, and information. The 

Proposed U.S. Producer Order will 

authorize these activities for U.S. honey 

only. 

According to the AHPA, the U.S. 

honey industry is facing serious threats 

due to Colony Collapse Disorder (CCD) 

and other factors. The survival of U.S. 

commercial beekeepers is dependent 

upon creating a strong market demand 

for domestic, U.S.-produced honey. The 

AHPA believes that the establishment 

and implementation of an all U.S. 

Honey Producer Board will permit U.S. 

beekeepers to specifically address the 

various factors that affect the U.S. honey 

industry. Funding of an all U.S. Honey 

Producer Board, will permit the 

development of programs related to 

issues such as the drastic decline in 

numbers of the honeybee due to (1) 

natural pests and diseases that kill or 

weaken the honeybee; (2) record 

droughts in the mid-west that have 

destroyed the plants and flowers 

honeybees use to gather pollen, and (3) 

the overall dramatic decrease in demand 

for U.S. honey. 

U.S. honey producers have attempted 

to halt the long term decline in the 

numbers of honeybees (over 30 percent 

in the past twenty years), due to the 

above mentioned issues, costing them 

millions of dollars for treatment, colony 

development, maintenance, 

replacement, and in lost honey 

production and pollination services. 

The funds generated by a U.S. Honey 

Producer Program would be spent on 

conducting research activities designed 

to address these critical issues, as well 

as promotional activities to expand the 

demand for U.S. honey. 

The honeybee is a fundamental 

component of U.S. agriculture 

supplying pollination to 90 different 

food, fiber, and seed crops at an 

estimated value of approximately $15 to 

$20 billion a year. The value of 

pollination service is vastly greater than 

the total value of honey and wax 

produced by honey bees. Honey bees 

pollinate approximately one-third of the 

human diet each year in the United 

States, and more than 140 billion honey 

bees (representing 2 million colonies) 

are transported by beekeepers across the 

U.S. to pollinate crops. California grows 

100% of the U.S. almond crop and 

supplies 80% of the world almonds. 

Each year, nearly one million honey bee 

hives are needed to pollinate the 

California Central Valley’s 600,000 acres 

of almond groves. By the year 2012, it 

is estimated that this number may 

increase to two million hives if the 

expected increase in almond production 

grows to 800,000 acres. Blueberries and 

avocados also receive more than 90 

percent of their pollination from honey 

bees. 

Without an active, vibrant domestic 

honey industry, many other agricultural 

commodities may suffer due to the loss 

of essential pollination services that the 

U.S. honey industry provides. Due to 

many recent problems facing the U.S. 

honey industry, U.S. farmers were 

forced to import honey bees from other 

countries (New Zealand and Australia) 

for pollination services in 2006. This 

marked the first time since 1922 that 

honey bees were imported into the U.S. 

for pollination services, underscoring 

the fragile state of the U.S. honey 

industry and highlighting the need for a 

research and promotion program 

focused solely on the domestic honey 

industry. Although the United States 

can import honey, it may be difficult to 

import bees on the massive scale 

required by U.S. farm producers for the 

critical pollination of U.S. crops. 

U.S. commercial beekeepers depend 

on the production of honey as well as 

pollination services in order to maintain 

a viable business. In order to remain in 

operation, U.S. beekeepers require a 

vibrant U.S. market place. The AHPA 

stated in their proposal that the creation 

of a U.S. honey producer program 

would help ensure the survival of the 

U.S. honey industry and strengthen 

other agricultural industries. 

The AHPA believes that both the 

Proposed Board and the Packers and 

Importers Board, will more effectively 

operate programs specifically focused 

on each assessment payers’ interests. 

The two boards would pursue their own 

distinct focus and agendas. Within this 

proposal is a discussion of some of the 

differences between the Proposed U.S. 

Producer Order and the Packers and 

Importers Order. 

The 1996 Act provides for a number 

of optional provisions that allow the 

tailoring of orders to the needs of 


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34184 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

different commodity groups. Section 

516 of the 1996 Act contains permissive 

terms that may be included in the 

orders. For example, section 516 

authorizes an order to provide for 

exemption of de minimis quantities 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 covered by the order in both 

domestic and foreign markets; provision 

for reserve funds; and provision for 

credits for generic and branded 

activities. 

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 to be collected 

under an order. An order also may 

provide for its approval in a referendum 

based upon different voting patterns. In 

accordance with § 518(e) of the 1996 

Act, the results of the referendum must 

be determined in one of three ways: (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. 

For the Proposed U.S. Producer 

Order, the Department is recommending 

a referendum be conducted, preceding 

the Proposed U.S. Producer Order’s 

effective date, to ascertain whether the 

persons to be covered and assessed 

favor the Proposed U.S. Producer Order 

going into effect. Implementation of the 

Proposed U.S. Producer Order would 

require the approval of a majority of the 

producers voting in the referendum, 

which also represent a majority of the 

volume of U.S. honey produced during 

the representative period by those 

voting in the referendum. Specific 

procedures to be followed in such 

referendum will be published in a 

separate Federal Register publication. 

In addition, section 518 of the 1996 

Act requires the Department to conduct 

subsequent referenda: (1) Not later than 

seven years after assessments first begin 

under the Proposed U.S. Producer 

Order; or (2) at the request of the 

Proposed Board established under the 

Proposed U.S. Producer Order; or (3) at 

the request of ten percent or more of the 

number of persons eligible to vote. In 

addition to these criteria, the 1996 Act 

provides that the Department may 

conduct a referendum at any time to 

determine whether persons eligible to 

vote favor the continuation, suspension, 

or termination of an order or a provision 

of an order. Expenses incurred by the 

Department in implementing and 

administering the Proposed U.S. 

Producer Order, including referenda 

costs, would be paid from assessments. 

Order Assessments 

The funds generated through the 

mandatory assessments on domestically 

produced U.S. honey would be used to 

pay for promotion, research, and 

consumer and industry information as 

well as the administration, 

maintenance, and functioning of the 

Proposed Board and shall be solely used 

to support U.S. honey. 

Under the Proposed U.S. Producer 

Order, ‘‘first handler’’ would be defined 

to mean the person who first handles 

U.S. honey, including a producer who 

handles U.S honey of the producer’s 

own production. The term is further 

defined as follows: 

(a) When a producer delivers U.S. 

honey from the producer’s own 

production to a packer or processor for 

processing in preparation for marketing 

and consumption, the packer or 

processor is the first handler, regardless 

of whether such honey is handled for 

the packer’s or processor’s own account 

or for the account of the producer or the 

account of other persons. 

(b) When a producer delivers U.S. 

honey to a handler who takes title to 

such honey, and places it in storage, 

such handler is the first handler. 

(c) When a producer delivers U.S. 

honey to a commercial storage facility 

for the purpose of holding such honey 

under the producer’s own account for 

later sale, the first handler of such 

honey would be identified on the basis 

of later handling of such honey. 

(d) When a producer delivers U.S. 

honey to a processor who processes and 

packages a portion of such honey for the 

processor’s own account and sells the 

balance, with or without further 

processing, to another processor or 

commercial user, the first processor is 

the first handler for all the honey. 

(e) When a producer supplies U.S. 

honey to a cooperative marketing 

organization that sells or markets such 

honey, with or without further 

processing and packaging, the 

cooperative marketing organization 

becomes the first handler upon physical 

delivery to such cooperative. 

(f) U.S. honey used from the 

producer’s own production for the 

purpose of feeding the producer’s own 

bees is not considered as handled. 

Honey in any form sold and shipped to 

any persons for the purpose of feeding 

bees is handled and is subject to 

assessment. The buyer of such honey for 

feeding bees is the first handler. 

(g) When a producer packages and 

sells U.S. honey of the producer’s own 

production at a roadside stand or other 

facility to consumers or sells to 

wholesale or retail outlets or other 

buyers, the producer is both a producer 

and a first handler. 

(h) When a producer uses U.S. honey 

from the producer’s own production in 

the manufacture of formulated products 

for the producer’s own account and for 

the account of others, the producer is 

both a producer and a first handler. 

In addition, ‘‘handle’’ means to 

process, package, sell, transport, 

purchase, or in any other way place U.S. 

honey, or cause them to be placed, in 

commerce. This term shall include 

selling unprocessed U.S. honey that will 

be consumed with or without further 

processing or packaging. This term shall 

not include the transportation of 

unprocessed U.S. honey by a producer 

to a first handler or the transportation of 

processed or unprocessed U.S. honey by 

a commercial carrier for the account of 

the first handler or producer. This term 

shall not include the purchase of U.S. 

honey by a consumer or other end-user 

of the U.S. honey. 

The Proposed U.S. Producer Order 

would provide that producers pay an 

assessment to the Proposed Board at the 

rate of $0.02 cents per pound of U.S. 

honey produced and shall only be 

imposed on U.S. producers. The 

Proposed U.S. Producer Order 

establishes that each first handler, 

responsible for collecting and remitting 

assessments, shall pay the Proposed 

Board the amount due on a date as 

established by the Proposed Board. The 

Proposed Board may provide for 

different payment schedules so as to 

recognize differences in marketing or 

purchasing practices and procedures. 

Except as otherwise provided for, the 

first handler shall collect the assessment 

from the producer or deduct such 

assessment from the proceeds paid to 

the producer on whose U.S. honey the 

assessment is made, and remit the 

assessments to the Proposed Board. The 

first handler shall furnish the producer 

with evidence of such payment. Any 

such collection or deduction of 

assessment shall be made no later than 

the time when the assessment becomes 

payable to the Proposed Board. The first 

handler shall maintain separate records 

for each U.S. producer’s honey handled, 

including U.S. honey produced by said 

first handler. Should a first handler fail 

to collect an assessment from a 

producer, the producer shall be 

responsible for the payment of the 

assessment to the Proposed Board. 


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Under the Proposed U.S. Producer 

Order, first handlers shall remit to the 

Proposed Board the assessment on all 

U.S. honey for which they act as first 

handler, in addition to the assessment 

owed on U.S. honey they produce. The 

first handler shall collect and pay 

assessments to the Proposed Board 

unless such first handler has received 

documentation acceptable to the 

Proposed Board that the assessment has 

been previously paid. Assessments shall 

be paid to the Proposed Board at such 

time and in such manner as the 

Proposed Board, with the Secretary’s 

approval, directs pursuant to this part. 

The Proposed Board may authorize 

other organizations to collect 

assessments on its behalf with the 

approval of the Secretary. 

The assessment levied on U.S. honey 

producers would be used to pay for 

promotion, research, and consumer 

education and industry information 

developed and designed to benefit 

honey produced in the U.S., as well as 

the administration, maintenance, and 

functioning of the Board. Expenses 

incurred by the Department in 

implementing and administering the 

Proposed U.S. Producer 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 Proposed U.S. 

Producer Order. 

Under the Proposed U.S. Producer 

Order, a producer who produces less 

than 100,000 pounds of U.S. honey per 

year would be eligible for a certificate of 

exemption. 

In addition, a producer who operates 

under an approved NOP system plan, 

produces only products eligible to be 

labeled as 100 percent organic under the 

NOP, and is not a split operation, is 

exempt from paying assessments under 

the Proposed U.S. Producer Order. 

The Proposed U.S. Producer Order 

allows the Proposed Board to 

recommend to the Secretary an increase 

to the assessment, as it deems 

appropriate, by an affirmative vote of 

five Board members. The Proposed 

Board may not recommend an increase 

in the assessment of more than $0.05 

per pound of U.S. honey and an 

assessment may not increase by more 

than $0.005 in any single fiscal year. 

Any change in the assessment rate shall 

be subject to rulemaking and announced 

by the Proposed Board at least 30 days 

prior to becoming effective. 

Although the 1996 Act allows for 

credits of assessments for generic and 

branded activities, the AHPA, who 

proposed the U.S. Producer Order, did 

not elect to include this provision. 

The Proposed U.S. Producer Order 

establishes that producers will be 

responsible for paying assessments. The 

Order further states that the first handler 

will be the responsible entity for 

collecting the assessments and filing 

specific reports and maintaining records 

regarding the amount of U.S. honey 

placed in commerce. 

Each first handler would be required 

to maintain any books and records 

necessary to carry out the provisions of 

the Proposed U.S. Producer 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 Proposed U.S. Producer Order 

provides that all officers, employees, 

and agents of the Department and of the 

respective Boards are required to keep 

confidential all information obtained 

from persons subject to the Order. This 

information would 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 Proposed U.S. 

Producer 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 Proposed U.S. 

Producer Order and a statement of the 

particular provisions of the Proposed 

U.S. Producer Order violated by the 

person would be allowed. 

It is anticipated that, based on current 

estimates of the number of commercial 

beekeepers in the U.S that would be 

covered under this proposal, the 

Proposed Board would collect 

approximately $1.9 million dollars per 

year and that program administrative 

expenses could be kept at a minimum 

so that approximately $1.6 million 

would be available to develop and 

implement research and promotion 

programs designed specifically to 

benefit honey produced in the United 

States. 

It is also anticipated that since only 

317 producers would be covered under 

the Proposed U.S. Producer Order, 

program administrative expenditures 

would be kept to a minimum. 

Establishment of the U.S. Honey 

Producer Board 

Section 515 of the 1996 Act provides 

for the establishment of a board 

consisting of producers, first handlers, 

and others in the marketing chain, as 

appropriate. The Department would 

appoint members to the Proposed Board 

from nominees submitted in accordance 

with a Proposed U.S. Producer Order. 

The Proposed U.S. Producer Order 

would provide for the establishment of 

an U.S. Honey Producer Board to 

administer the Proposed U.S. Producer 

Order under AMS oversight. The AHPA 

has proposed that the Proposed Board 

be composed of no more than seven 

honey producers and seven alternates. 

Each term of office on the Proposed 

Board would begin on April 1 and end 

on March 31, with the exception of the 

initial Board’s term of office. The 

Proposed Board would nominate the 

seven producer members and their 

alternate representatives appointed by 

the Secretary from seven regions of the 

United States, to carry out a program of 

promotion, research, and information 

regarding U.S. honey. The United States 

would be 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. Honey is produced in 

almost all of the 50 States. The top six 

producing States in 2007 included 

North Dakota, California, Florida, South 

Dakota, Montana, and Minnesota. 

One producer member and one 

alternate would be appointed to serve 

on the Proposed Board from each of the 

following regions: 

(1) Region 1: Washington, Oregon, 

Idaho, California, Nevada, Utah, Alaska, 

and Hawaii. 

(2) Region 2: Montana, Wyoming, 

Nebraska, Kansas, Colorado, Arizona, 

and New Mexico. 

(3) Region 3: North Dakota and South 

Dakota. 

(4) Region 4: Minnesota, Iowa, 

Wisconsin, and Michigan. 

(5) Region 5: Texas, Oklahoma, 

Missouri, Arkansas, Tennessee, 

Louisiana, Mississippi, and Alabama. 

(6) Region 6: Florida, Georgia, and all 

other U.S. territories and possessions. 

(7) Region 7: Illinois, Indiana, Ohio, 

Kentucky, Virginia, North Carolina, 

South Carolina, West Virginia, 


PWALKER on DSK8KYBLC1PROD with PROPOSALS2
34186 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

Maryland, District of Columbia, 

Delaware, New Jersey, New York, 

Pennsylvania, Connecticut, Rhode 

Island, Massachusetts, New Hampshire, 

Vermont, and Maine. 

In the Proposed U.S. Producer Order, 

U.S. honey producers within each of the 

seven regions would receive from the 

Proposed Board, an established list of 

producers eligible to serve on the 

Proposed Board and would notify all 

producers within the regions that they 

may nominate persons to serve as 

members and alternates on the Proposed 

Board. 

The Proposed U.S. Producer Order 

indicates that the Proposed 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 Proposed 

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. 

Under the Proposed U.S. Producer 

Order at least once every five years, but 

not more frequently than once in each 

three year period, the Proposed Board 

would review the geographical 

distribution in the United States of the 

quantities of production of U.S. honey 

covered by the Proposed U.S. Producer 

Order. 

The review, based on a five year 

average annual review of assessments 

and/or Department statistics, would 

enable the Proposed Board to evaluate 

whether the Proposed Board 

membership is reflective of the regional 

representation of U.S. honey produced. 

Under the Proposed U.S. Producer 

Order, Board members could serve 

terms of three years and are eligible to 

serve a maximum of two consecutive 

terms. When the Proposed Board is first 

established, three producers would be 

assigned initial terms of four years; two 

producers would be assigned initial 

terms of three years; and two producers 

would be assigned initial terms of two 

years. Thereafter, each of these positions 

will carry a full three-year term. 

Members serving initial terms of two or 

four years would be eligible to serve a 

second term of three years. Each Board 

member and alternate member would 

continue to serve until the member’s or 

alternate’s successor meets all 

qualifications and is appointed by the 

Secretary. 

In the event that any member or 

alternate of the Proposed Board ceases 

to be a member of the category of 

members from which the member was 

appointed to the Proposed Board, such 

position shall become vacant. Provided, 

that if, as a result of the Proposed Board 

reallocation a producer member or 

alternate is no longer from the region 

from which such person was appointed, 

the affected member or alternate may 

serve out the term for which such 

person was appointed. 

Under the Proposed U.S. Producer 

Order, a quorum is met if there are a 

majority of members present including 

alternates acting in place of members. 

Comparison of the Proposed U.S. 

Producer Order and the Packers and 

Importers Order 

A major difference between the 

Packers and Importers Order and the 

Proposed U.S. Producer Order is that 

the Proposed U.S. Producer Order 

provides for assessments to be paid by 

the producers of U.S. honey rather than 

first handlers and importers of honey 

and honey products. 

Other differences between the 

Proposed U.S. Producer Order and the 

Packers and Importers Order are the 

entities assessed, the de minimis 

amount, and the assessment rate. 

The Proposed U.S. Producer Order 

provides for assessments to be paid by 

U.S. honey producers that produce in 

excess of 100,000 pounds of U.S. honey 

per year. The number of entities 

assessed under the Proposed U.S. 

Producer Order would be around 317. In 

addition, the Proposed U.S. Producer 

Order would provide that producers pay 

an assessment to the Proposed Board at 

the rate of $0.02 cents per pound of U.S. 

honey produced and shall only be 

imposed on U.S. producers. The first 

handler will be responsible for 

collecting and remitting assessments. 

The reporting burden under the 

Proposed U.S. Producer Order would be 

on the first handler. 

The Packers and Importers Order de 

minimis amount is 250,000 pounds and 

the number of entities assessed is 75. 

Under the Packers and Importers Order, 

first handlers must pay an assessment 

rate of $0.01 per pound on domestically 

produced honey or honey products that 

the handler handles and, each importer 

must pay an assessment of $0.01 per 

pound on honey or honey products the 

importer imports into the United States. 

The reporting burden for the Packers 

and Importers Order is on both the first 

handler and the importer. 

At the initial rate of $0.02 per pound, 

revenue for the Proposed U.S. Producer 

Order would be approximately $1.9 

million. At the initial rate of $0.01 per 

pound for the Packers and Importers 

Order, revenue will be approximately $3 

million. 

In addition to differences in the 

entities assessed, the de minimis 

amount, and the assessment rate, there 

are other comparative differences 

between the Proposed U.S. Producer 

Order and the Packers and Importers 

Order including reporting costs, the 

makeup of the Boards, and the 

nomination process. 

The Proposed Board would consist of 

seven producers and each member 

would have an alternate. The Secretary 

would appoint members to the Proposed 

Board from nominees submitted in 

accordance with the Proposed U.S. 

Producer Order. Each term of office will 

begin on April 1 and end on March 31. 

In the Proposed U.S. Producer Order, 

U.S. honey producers within each of the 

seven regions would receive from the 

Proposed Board, an established list of 

producers eligible to serve on the 

Proposed Board and would notify all 

producers within the regions that they 

may nominate persons to serve as 

members and alternates on the Proposed 

Board. 

The Packers and Importers Board 

consists of 10 members; three first 

handler representatives, two importer 

representatives, one importer-handler 

representative, three producer 

representatives, and one marketing 

cooperative representative. A term of 

office begins on January 1. 

Under the Packers and Importers 

Order, first handlers, producers, and a 

national honey marketing cooperative 

representative represent those entities in 

the United States. Board members from 

each of these groups are nominated by 

national organizations representing each 

of them respectively. Importers and the 

importer-handler on the Packers and 

Importers Board are nominated by 

national organizations representing 

importers. 

The estimated total cost of providing 

information to the Proposed Board by 

all respondents would be $47,751. This 

total has been estimated by multiplying 

1,447 total hours required for reporting 

and recordkeeping by $33, the average 

mean hourly earnings of various 

occupations involved in keeping this 

information. In contrast, under the 

Packers and Importers Order an 

estimated 350 total hours are required 

for reporting and recordkeeping at a 

total cost of $11,550. 

Other Order Provisions 

The 1996 Act requires that for fiscal 

years beginning 3 years after the date of 

the Board’s establishment, the Board 


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shall not expend for administration, 

maintenance, and functioning of the 

Board in a single fiscal year an amount 

that exceeds 15 percent of the 

assessments and other income received 

by the Board for that fiscal year. There 

is no specific requirement for research 

funds under the Proposed U.S. Producer 

Order. 

The Proposed U.S. Producer Order 

provides for a continuance referendum 

every seven years. 

This Proposed U.S. Producer Order 

includes definitions, provisions 

concerning establishment of the Board, 

expenses and assessments, plans and 

projects, reports, books and records, and 

other miscellaneous provisions. 

The Department modified the AHPA’s 

proposal to make it consistent with the 

1996 Act and to provide clarity, 

consistency, and correctness with 

respect to word usage and terminology. 

The Department also changed the 

proposal to make it consistent with 

other similar national research and 

promotion programs. Some of the 

changes made by the Department to the 

AHPA’s proposal were: (1) To remove 

the terms ‘‘handler’’ and ‘‘producerpacker’’ and adopt ‘‘first handler’’ as the 

term to be used throughout the 

Proposed U.S. Producer Order; (2) to 

describe in more detail the section 

describing reports, books, and records 

that need to be provided by the Board 

on its financial position; (3) to delete 

any references to quality standards and 

prices as these provisions are not 

authorized under the 1996 Act; (4) to 

remove the refund of assessment 

language; (5) to add language which 

states that any change in the assessment 

rate shall be subject to rulemaking; and 

(6) to modify section numbers as 

appropriate to match the above 

necessary changes made to the proposal. 

Initial Regulatory Flexibility Act 

Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601– 

612), AMS is required to examine the 

impact of the proposed rule on small 

entities. 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 is 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 Packers and Importers Order and 

the Proposed U.S. Producer Order 

represent different interests within the 

honey industry. The Proposed U.S. 

Producer Order represents the interest 

of U.S. producers while the Packers and 

Importers Order represents the interests 

of honey packers and importers. In 

addition, assessment requirements on 

both programs would be required of 

different segments of the industry. 

The Proposed U.S. Producer Order 

provides for assessments to be paid by 

U.S. honey producers that produce in 

excess of 100,000 pounds of U.S. honey 

per year at the rate of $0.02 cents per 

pound of U.S. honey produced. The 

number of entities assessed under the 

Proposed U.S. Producer Order would be 

around 317. An estimated 1,683 

producers would be exempt under the 

100,000 pound exemption, while an 

estimated 5 producers would be exempt 

as organic producers. The first handler 

will be responsible for collecting and 

remitting assessments. 

The Packers and Importers Order de 

minimis amount is 250,000 pounds and 

the number of entities assessed is 75. 

Under the Packers and Importers Order, 

first handlers must pay an assessment 

rate of $0.01 per pound on domestically 

produced honey or honey products that 

the handler handles and, each importer 

must pay an assessment of $0.01 per 

pound on honey or honey products the 

importer imports into the United States. 

The reporting burden for the Packers 

and Importers Order is on both the first 

handler and the importer. 

At the initial rate of $0.02 per pound, 

revenue for the Proposed U.S. Producer 

Order would be approximately $1.9 

million. At the initial rate of $0.01 per 

pound for the Packers and Importers 

Order, revenue will be approximately $3 

million. The aggregate collection of 

assessments for the honey industry will 

be approximately $4.9 million. 

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 would be 

conducted prior to putting this 

Proposed U.S. Producer Order in effect. 

The Proposed U.S. Producer Order also 

provides for approval in a referendum to 

be based upon: (1) Approval by a 

majority of those persons voting; and (2) 

persons voting for approval that 

represent a majority of the volume of 

U.S. honey of those voting in the 

referendum. Every seven years, the 

Department shall conduct a referendum 

to determine whether producers of U.S. 

honey favor the continuation, 

suspension, or termination of the Order. 

In addition, the Department could 

conduct a referendum at any time; at the 

request of 10 percent and more of the 

producers required to pay assessments; 

or at the request of the Board. 

The Proposed U.S. Producer Order 

provides for first handlers to file reports 

to the Proposed Board. While the 

Proposed U.S. Producer Order would 

impose certain reporting and 

recordkeeping requirements on first 

handlers, the information required 

under the Proposed U.S. Producer Order 

could be compiled from records 

currently maintained and would involve 

existing clerical or accounting skills. 

The forms require the minimum 

information necessary to effectively 

carry out the requirements of the 

Proposed U.S. Producer Program, and 

their use is necessary to fulfill the intent 

of the 1996 Act. An estimated 63 first 

handler respondents and 317 producer 

respondents would provide information 

to the Proposed Board. The estimated 

total cost of providing information to 

the Proposed Board by all respondents 

would be $47,751. This total has been 

estimated by multiplying 1,447 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 

$7.0 million or less. Using these criteria, 

under the Proposed U.S. Producer 

Order, most producers and handlers 

would be considered small businesses. 

National Agricultural Statistic Service 

(NASS) data reports that U.S. 

production of honey, from producers 

with five or more colonies, totaled less 

than 155 million pounds in 2006, a 

decrease of almost 16 percent from 

2004. The top six producing States in 

2006 included North Dakota, California, 

Florida, South Dakota, Montana, and 

Minnesota. NASS reported the value of 

honey sold from these six states in 2006 

was $84,583,000 and the volume 

produced was 90,433,000 pounds. By 

comparison, as recently as 2000, U.S. 

commercial beekeepers produced over 

220 million pounds of honey. In 2006, 

honey prices increased during 2006 to 

104.2 cents, up 14 percent from 91.8 

cents in 2005, due to congressional 

action. 


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34188 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

Based on the assessment reports in 

connection with the Original Order and 

recorded by Customs, seventeen 

countries produced over 93 percent of 

the honey imported into the U.S. In 

2005, five of these countries produced 

almost 79 percent of the total honey 

imported into the United States. These 

countries and their share of the imports 

are: China (27%), Argentina (21%), 

Vietnam (13%), Canada (10%), and 

India (8%). Imports accounted for 69 

percent of U.S. consumption in 2006, an 

increase of 18 percent, up from 51 

percent since 2002. 

Associations and related industry 

media would receive news releases and 

other information regarding the 

implementation of the Proposed U.S. 

Producer Order and the referendum 

process. Furthermore, all information 

would be available electronically. 

The Proposed Board may develop 

guidelines for compliance with the 

Proposed U.S. Producer Order. The 

Proposed Board may recommend 

changes in the assessment rate, 

programs, plans, projects, budgets, and 

any rules and regulations that might be 

necessary for the administration of the 

program. Any changes in the assessment 

rate shall be subject to rulemaking. The 

administrative expenses of the Proposed 

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 

section 516 of the 1996 Act, and other 

sections provide for alternatives. 

The Proposed U.S. Producer Order is 

designed to: (1) Develop and finance an 

effective and coordinated research, 

promotion, industry information, and 

consumer education program for U.S. 

honey; (2) strengthen the position of the 

U.S. honey industry and ultimately 

increase consumption of U.S. honey; 

and (3) maintain, develop, and expand 

existing markets for U.S. honey. 

Additionally, the Proposed U.S. 

Producer Order would impose some 

additional reporting and recordkeeping 

costs on first handlers; however, the 

reporting requirements are minimal. If 

the Proposed U.S. Producer Order is 

implemented, the reporting and 

recordkeeping burden cost would be 

$47,916 under the Proposed U.S. 

Producer Order. These costs should be 

offset by the benefits derived by the 

operation of the Proposed U.S. Producer 

Order. 

Section 516 authorizes an order to 

provide for exemption of de minimis 

quantities (the AHPA has proposed less 

than 100,000 pounds 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; and provision for credits for 

generic and branded activities. 

Also, under authority provided by 7 

U.S.C. 7401, the Proposed U.S. Producer 

Order exempts producers who operate 

under an approved National Organic 

Program (NOP) (7 CFR part 205) system 

plan, produces 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 Department has not identified 

any relevant Federal rules that 

duplicate, overlap, or conflict with this 

proposed rule. 

While the Department has performed 

this initial Regulatory Flexibility 

Analysis regarding the impact of this 

proposed rule on small entities, in order 

to have as much data as possible for a 

more comprehensive analysis of the 

effects of this rule on small entities, we 

are inviting comments concerning 

potential effects. In particular, the 

Department requests information on the 

expected benefits and costs of 

implementing the Proposed U.S. 

Producer Program. 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

Chapter 35), AMS announces its 

intention to request an approval of a 

new information collection for the 

Proposed U.S. Honey Producer Program. 

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: 

Awaiting renewal. 

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 Proposed U.S. Producer 

Order, producers would be required to 

pay assessments and first handlers 

would be required to collect these 

assessments and file reports with the 

Proposed Board. While the Proposed 

U.S. Producer Order would impose 

certain recordkeeping requirements on 

first handlers, information required 

under the Proposed U.S. Producer Order 

could be compiled from records 

currently maintained by such first 

handlers. Such records would be 

retained for at least two years beyond 

the marketing year of their applicability. 

Under the Proposed U.S. Producer 

Order producers are responsible to pay 

an assessment of $0.02 per pound. 

An estimated 63 first handler 

respondents and 317 U.S. producer 

respondents would provide information 

to the Proposed Board. The estimated 

total cost of providing information to 

the Proposed Board by all respondents 

would be $47,751. This total has been 

estimated by multiplying 1,447 total 

hours required for reporting and 

recordkeeping by $33, the average mean 

hourly earnings of various occupations 

involved in keeping this information. 

Data for computation of this hourly rate 

was obtained from the U.S. Department 

of Labor Statistics. 

The Proposed U.S. Producer 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 proposed forms would require 

the minimum information necessary to 

effectively carry out the requirements of 

the Proposed U.S. Producer 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 Proposed 

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 would 

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. 


PWALKER on DSK8KYBLC1PROD with PROPOSALS2
Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 34189 

Information collection requirements 

that are included in this proposal 

include: 

(1) A Background Information Form 

AD–755 (Approved under OMB Form 

No. 0505–0001). 

Estimate of Burden: Public reporting 

for this collection of information is 

estimated to average 0.5 hours per 

response for each Board nominee. 

Respondents: Producers. 

Estimated number of Respondents: 28 

for initial nominations, 9 in subsequent 

years. 

Estimated number of Responses per 

Respondent: 1 every 3 years. (0.3) 

Estimated Total Annual Burden on 

Respondents: 4.2 hours for the initial 

nominations and 1.35 hours annually 

thereafter. 

(2) Monthly Report by Each First 

Handler of U.S. 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 U.S. 

honey handled. 

Respondents: First handlers. 

Estimated number of Respondents: 

63. 

Estimated number of Responses per 

Respondent: 12. 

Estimated Total Annual Burden on 

Respondents: 378 hours. 

(3) 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 

producers. 

Estimated Number of Respondents: 

380. 

Estimated Total Annual Burden of 

Respondents: 190 hours. 

(4) An Exemption Application for 

Producers Who Would Be Exempt From 

Assessments. (Certification Of 

Exemption) 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.5 hours per 

response for each exempt producer. 

Respondents: Exempt Producers. 

Estimated Number of Respondents: 

1683. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 841.50 hours. 

(5) Nomination Appointment Form 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.25 hours per application. 

Respondents: Producers. 

Estimated Number of Respondents: 

30. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 7.5 hours. 

(6) Nomination Appointment Ballot 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.25 hours per application. 

Respondents: Producers. 

Estimated Number of Respondents: 

105. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 26.25 hours. 

(7) Organic Exemption Form. (Approved 

under OMB Form No. 0581–0217) 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.5 hours per exemption form. 

Respondents: Producers. 

Estimated Number of Respondents: 5. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 2.5 hours. 

Request for Public Comment on the 

Paperwork Reduction Act 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of functions of the Proposed U.S. 

Producer Order and the Department’s 

oversight of the Proposed U.S. Producer 

Order, including whether the 

information would have practical 

utility; (b) the accuracy of the 

Department’s estimate of the burden of 

the proposed 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. 

Comments concerning the 

information collection requirements 

contained in this action should 

reference OMB No. 0581–NEW. In 

addition, the docket number, date, and 

page number of this issue of the Federal 

Register also should be referenced. 

Comments should be sent to the USDA 

Docket Clerk, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0244, Room 0632–S, 

Washington, DC 20250–0244. 

Comments may also be sent by facsimile 

to (202) 205–2800 or electronically to 

http://www.regulations.gov. All 

comments received will be available for 

public inspection during regular 

business hours at the same address. 

Comments regarding information 

collection should also be sent to the 

Office of Management and Budget at: 

Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

OMB is required to make a decision 

concerning the collection of information 

contained in this rule between 30 and 

60 days after publication. Therefore, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

within 30 days of publication. 

A 60-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written comments 

received in response to this rule by the 

date specified would be considered 

prior to finalizing this action. 

While the proposal set forth below 

has not received the approval of the 

Department, it is determined that the 

Proposed U.S. Producer Order is 

consistent with and will effectuate the 

purposes of the 1996 Act. 

List of Subjects in 7 CFR Part 1245 

Administrative practice and 

procedure, Advertising, Consumer 

education, U.S. Honey, Marketing 

agreements, Promotion, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, it is proposed that Title 7, 

Chapter XI of the Code of Federal 

Regulations be amended as follows: 

1. Add Part 1245 to read as follows: 

PART 1245—U.S. HONEY PRODUCER 

RESEARCH, PROMOTION, AND 

CONSUMER INFORMATION 

Definitions 

Subpart A—U.S. Honey Producer Research, 

Promotion, and Consumer Information Order 

Sec. 

1245.1 Act. 

1245.2 Board. 

1245.3 Conflict of interest. 

1245.4 Department. 

1245.5 Exporter. 

1245.6 First handler. 

1245.7 Fiscal period and marketing year. 

1245.8 Handle. 


PWALKER on DSK8KYBLC1PROD with PROPOSALS2
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1245.9 Honey. 

1245.10 Honey production. 

1245.11 Information. 

1245.12 Marketing. 

1245.13 Order. 

1245.14 Part and subpart. 

1245.15 Person. 

1245.16 Plans and projects. 

1245.17 Producer. 

1245.18 Promotion. 

1245.19 Referendum. 

1245.20 Research. 

1245.21 Secretary. 

1245.22 State. 

1245.23 Suspend. 

1245.24 Terminate. 

1245.25 United States. 

U.S. Honey Producer Board 

1245.30 Establishment and membership. 

1245.31 Nominations and voting. 

1245.32 Term of office. 

1245.33 Board reapportionment. 

1245.34 Vacancies. 

1245.35 Procedure. 

1245.36 Compensation and reimbursement. 

1245.37 Powers and duties. 

1245.38 Prohibited activities. 

Expenses and Assessments 

1245.40 Budget and expenses. 

1245.41 Assessments. 

1245.42 Late payment. 

1245.43 Exemption from assessment. 

1245.44 Operating reserve. 

Promotion, Research, and Information 

1245.50 Plans and projects. 

1245.51 Contracts. 

1245.52 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Reports, Books, and Records 

1245.60 First handler reports. 

1245.61 Books and records. 

1245.62 Confidential treatment. 

Miscellaneous 

1245.70 Right of the Secretary. 

1245.71 Referenda. 

1245.72 Suspension or termination. 

1245.73 Proceedings after termination. 

1245.74 Effect of termination or 

amendment. 

1245.75 Personal liability. 

1245.76 Separability. 

1245.77 Amendments. 

1245.78 OMB Control Numbers. 

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

7401. 

Subpart A—U.S. Honey Producer 

Research, Promotion, and Consumer 

Information Order 

Definitions 

§ 1245.1 Act. 

Act means the Commodity Promotion, 

Research, and Information Act of 1996, 

(7 U.S.C. 7411–7425), and any 

amendments to that Act. 

§ 1245.2 Board. 

Board or ‘‘U.S. Honey Producer 

Board’’ means the administrative body 

established pursuant to § 1245.30, or 

such other name as recommended by 

the Board and approved by the 

Department. 

§ 1245.3 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. 

§ 1245.4 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. 

§ 1245.5 Exporter. 

Exporter means any person who 

exports U.S. honey from the United 

States. 

§ 1245.6 First handler. 

First handler means the person who 

first handles U.S. honey, including a 

producer who handles U.S honey of the 

producer’s own production. Persons 

who are first handlers include but are 

not limited to the following: 

(a) When a producer delivers U.S. 

honey from the producer’s own 

production to a packer or processor for 

processing in preparation for marketing 

and consumption, the packer or 

processor is the first handler, regardless 

of whether such honey is handled for 

the packer’s or processor’s own account 

or for the account of the producer or the 

account of other persons. 

(b) When a producer delivers U.S. 

honey to a handler who takes title to 

such honey, and places it in storage, 

such handler is the first handler. 

(c) When a producer delivers U.S. 

honey to a commercial storage facility 

for the purpose of holding such honey 

under the producer’s own account for 

later sale, the first handler of such 

honey would be identified on the basis 

of later handling of such honey. 

(d) When a producer delivers U.S. 

honey to a processor who processes and 

packages a portion of such lot of honey 

for the processor’s own account and 

sells the balance, with or without 

further processing, to another processor 

or commercial user, the first processor 

is the first handler for all the honey. 

(e) When a producer supplies U.S. 

honey to a cooperative marketing 

organization that sells or markets such 

honey, with or without further 

processing and packaging, the 

cooperative marketing organization 

becomes the first handler upon physical 

delivery to such cooperative. 

(f) When a producer uses U.S. honey 

from the producer’s own production for 

the purpose of feeding the producer’s 

own bees, that honey is not considered 

as handled. Honey in any form sold and 

shipped to any persons for the purpose 

of feeding bees is handled and is subject 

to assessment. The buyer of such honey 

for feeding bees is the first handler. 

(g) When a producer packages and 

sells U.S. honey of the producer’s own 

production at a roadside stand or other 

facility to consumers or sells to 

wholesale or retail outlets or other 

buyers, the producer is both a producer 

and a first handler. 

(h) When a producer uses U.S. honey 

from the producer’s own production in 

the manufacture of formulated products 

for the producer’s own account and for 

the account of others, the producer is 

both a producer and a first handler. 

§ 1245.7 Fiscal period and marketing year. 

Fiscal period means the 12-month 

period ending on December 31 or such 

other consecutive 12-month period as 

shall be recommended by the Board and 

approved by the Secretary. 

§ 1245.8 Handle. 

Handle means to process, package, 

sell, transport, purchase or in any other 

way place honey, or causes it 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 first handler or transportation by a 

commercial carrier of honey, whether 

processed or unprocessed for the 

account of the first handler or producer. 

This term shall not include the purchase 

of honey by a consumer or other end 

user of the honey. 

§ 1245.9 Honey. 

Honey means the nectar and 

saccharine exudations of plants that are 

gathered, modified, and stored in the 

comb by honeybees, including comb 

honey. 

§ 1245.10 Honey production. 

Honey production means all 

beekeeping operations related to 

managing honey bee colonies to 

produce U.S. honey, harvesting U.S. 

honey from the colonies, extracting 

honey from the honeycombs, and 

preparing U.S. honey for sale and 

further processing. 


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§ 1245.11 Information. 

Information means information, 

programs, or activities that are designed 

to develop new domestic or foreign 

markets, maintain or expand such 

markets, develop new marketing 

strategies, increase market efficiency, or 

enhance the image of U.S. honey. These 

include: 

(a) Consumer information, 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 U.S. 

honey; and 

(b) Industry information means any 

action that will lead to the development 

of new markets, new marketing 

strategies, or increased efficiency for the 

U.S. honey industry, and activities to 

enhance the image or strengthen the 

position of the U.S. honey industry. 

§ 1245.12 Marketing. 

Marketing means the sale or other 

disposition of U.S. honey in the 

domestic market or the foreign market. 

§ 1245.13 Order. 

Order means the U.S. Honey Producer 

Research, Promotion, and Consumer 

Information Order. 

§ 1245.14 Part and subpart. 

Part means the Honey Producer 

Research, Promotion, Consumer 

Education, and Industry Information 

Order (Order) Part 1245 and all rules, 

regulations, and supplemental orders 

issued pursuant to the Act and the 

Order. The Order shall be a ‘‘subpart’’ 

of such part. 

§ 1245.15 Person. 

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: 

(a) A spouse or marital partner who 

have title to, or leasehold interest in, 

honey bee colonies or beekeeping 

equipment as tenants in common, joint 

tenants, tenants by the entirety, or, 

under community property laws, as 

community property, and 

(b) Joint ventures wherein one or 

more parties to the agreement, informal 

or otherwise, contributed land and 

others contributed capital, labor, 

management, equipment, or other 

services, or any variation of such 

contributions by two or more parties, so 

that it results in the production, or 

handling for market and the authority to 

transfer title to the U.S. honey so 

produced, or handled. 

§ 1245.16 Plans and projects. 

Plans and projects mean those 

research, promotion and information 

programs, plans, or projects established 

pursuant to this subpart. 

§ 1245.17 Producer. 

Producer means any person who 

produces honey in any State for sale in 

commerce. 

§ 1245.18 Promotion. 

Promotion means any action, 

including paid advertising and public 

relations, to advance the desirability or 

marketability of U.S. honey to the 

general public and the food industry 

with the express intent of improving the 

competitive position, expanding 

existing markets, increasing 

consumption, and enhancing the image 

of U.S. honey. 

§ 1245.19 Referendum. 

Referendum means a referendum to 

be conducted by the Secretary pursuant 

to the Act whereby U.S. honey 

producers 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 who also represent a 

majority of the volume of U.S. honey 

produced. 

§ 1245.20 Research. 

Research means any type of 

systematic study, analysis, test, or 

investigation, including studies testing 

the effectiveness of market development 

and promotion efforts, or the evaluation 

of any study or investigation designed to 

advance the image, desirability, usage, 

marketability, or production of U.S. 

honey. 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, U.S. honey production, and 

honey bees. 

§ 1245.21 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. 

§ 1245.22 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. 

§ 1245.23 Suspend. 

Suspend means to issue a rule under 

section 553 of U.S.C. Title 5 to 

temporarily prevent the operation of an 

order or part thereof during a particular 

period of time specified in the rule. 

§ 1245.24 Terminate. 

Terminate means to issue a rule under 

section 553 of U.S.C. Title 5 to cancel 

permanently the operation of an order 

beginning on a date certain specified in 

the rule. 

§ 1245.25 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. 

U.S. Honey Producer Board 

§ 1245.30 Establishment and membership. 

(a) There is hereby established a U.S. 

Honey Producer Board, composed of no 

more than seven honey producers and 

seven alternates, appointed by the 

Secretary, to carry out a program of 

promotion, research, and information 

regarding U.S. honey. 

(b) One producer member and one 

alternate shall be appointed to serve on 

the Board from each of the following 

regions: 

(1) Region 1: Washington, Oregon, 

Idaho, California, Nevada, Utah, Alaska, 

and Hawaii. 

(2) Region 2: Montana, Wyoming, 

Nebraska, Kansas, Colorado, Arizona, 

and New Mexico. 

(3) Region 3: North Dakota and South 

Dakota. 

(4) Region 4: Minnesota, Iowa, 

Wisconsin, and Michigan. 

(5) Region 5: Texas, Oklahoma, 

Missouri, Arkansas, Tennessee, 

Louisiana, Mississippi, and Alabama. 

(6) Region 6: Florida, Georgia, and all 

other U.S. territories and possessions. 

(7) Region 7: Illinois, Indiana, Ohio, 

Kentucky, Virginia, North Carolina, 

South Carolina, West Virginia, 

Maryland, District of Columbia, 

Delaware, New Jersey, New York, 

Pennsylvania, Connecticut, Rhode 

Island, Massachusetts, New Hampshire, 

Vermont, and Maine. 

§ 1245.31 Nominations and voting. 

(a) The Board shall seek nominations 

for members and alternates from the 

specific regions set forth in this subpart 

in accordance with the following 

procedures: 

(1) The Board shall establish a list of 

producers that are eligible to serve on 

the Board and shall notify all producers 

that they may nominate persons to serve 

as members and alternates on the Board. 


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Nominations shall be received by mail 

from any producer that resides in the 

region in which one or more vacancies 

will occur. Persons that are interested in 

nominating an individual to serve on 

the Board shall submit to the Board in 

writing the name and mailing address of 

the proposed nominee and such other 

information as the Board may require, in 

order to place such individual on the 

ballot. 

(2) Once proposed nominations have 

been submitted from the applicable 

region, the Board shall cause each 

proposed nominee, if the individual 

qualifies, to be placed on the region’s 

nominee ballot. The Board then shall 

mail a ballot to each known producer 

within the region. 

(3) Within 45 days after a mail ballot 

is issued, the Board shall validate the 

ballots cast, tabulate the votes, and 

provide the Secretary with the results of 

the vote and the identification of the 

two producers receiving the highest 

number of votes for each open position 

on the Board. 

(b) For each region, the Board shall 

submit to the Secretary the name of the 

nominee receiving the highest number 

of votes and the name of the nominee 

receiving the second highest number of 

votes as the producers’ first and second 

choice nominees. The Secretary shall 

select the producer members and 

alternates of the Board from the names 

of those persons receiving the highest 

and second highest number of votes 

within a specific region, as submitted by 

the Board. 

(c) Notice of balloting to nominate 

candidates for the Board shall be 

publicized by the Board to producers in 

the region involved, and to the 

Secretary, at least 90 days before the 

region’s nominee ballot is issued except 

for the initial Board. 

(d) In proposing nominees for 

inclusion on a mail ballot, nominations 

must be received by the Board at least 

30 days before the region’s nominee 

ballot is issued. 

(e) If a producer nominee is engaged 

in the production of honey in more than 

one region, such producer shall 

participate within the region that such 

producer so elects in writing to the 

Board and such election shall remain 

controlling until revoked in writing to 

the Board. 

(f) Each producer within a region 

shall cast a ballot for each open position 

on the Board assigned to such region in 

accordance with the procedures 

prescribed in this subpart. The 

completed ballot must be returned to 

the Board or its designee within 30 days 

after the ballot is issued. 

(g) The Board shall provide nominees 

with qualification statements and other 

specified information. Each nominee 

selected in the mail ballot will be 

contacted by the Board and asked to 

forward such completed documentation 

to the Board within 14 days of such 

notification. 

(h) The Department will conduct the 

nomination process for the initial Board 

using the same procedures described 

above. 

§ 1245.32 Term of office. 

The members of the Board and their 

alternates shall serve for terms of three 

years. No member or alternate shall 

serve more than two consecutive threeyear terms. The term of office shall 

begin on April 1. When the Board is first 

established, three producers will be 

assigned initial terms of four years; two 

producers will be assigned initial terms 

of three years; and two producers will 

be assigned initial terms of two years. 

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 Board member and 

alternate member shall continue to serve 

until the member’s or alternate’s 

successor meets all qualifications and is 

appointed by the Secretary. 

§ 1245.33 Board reapportionment. 

(a) At least once every five years, but 

not more frequently than once in a 

three-year period, the Board shall 

review the geographic distribution of 

the quantities of U.S. honey assessed 

under this subpart. The review will be 

based on Board assessment records and 

statistics from the Department. 

(b) If warranted as a result of this 

review, the Board shall recommend for 

the Secretary’s approval changes in the 

regional representation of honey 

producers. Any changes in the makeup 

of the Board shall be subject to 

rulemaking by the Department. 

(c) Recommendations made under 

paragraph (b) of this section shall be 

based on the 5-year average annual 

assessments and statistics from the 

Department, determined pursuant to the 

review that is conducted under 

paragraph (a) of this section. 

(d) Any such reallocation shall be 

made at least six months prior to the 

date on which terms of office of the 

Board begin and shall become effective 

at least 30 days prior to such date. 

§ 1245.34 Vacancies. 

(a) In the event any member of the 

Board ceases to be a producer, such 

position shall automatically become 

vacant: Provided, that if, as a result of 

Board reallocation pursuant to 

§ 1245.33, a producer member or 

alternate is no longer from the region 

from which such person was appointed, 

the affected member or alternate may 

serve out the term for which such 

person was appointed. 

(b) If a member of the Board 

consistently refuses to perform the 

duties of a member of the Board, or if 

a member of the Board engages in acts 

of dishonesty or willful misconduct, the 

Board may recommend to the Secretary 

that the member be removed from office. 

If the Secretary finds the 

recommendation of the Board shows 

adequate cause, the Secretary may 

remove such member from office. 

(c) Should any member position 

become vacant, the alternate for that 

member shall automatically assume the 

position of that member. At its next 

meeting, the Board shall nominate a 

replacement for such alternate. Should 

the positions of both a member and such 

member’s alternate become vacant, 

successors for the unexpired terms of 

such member and alternate shall be 

nominated and appointed in the manner 

specified in § 1245.31, except that 

nomination and replacement shall not 

be required if the unexpired terms are 

less than six months. 

§ 1245.35 Procedure. 

(a) A majority of members, including 

alternates acting in place of members of 

the Board, shall constitute a quorum. 

Alternates shall serve whenever the 

member is absent from a meeting or is 

disqualified. 

(b) All Board members shall be 

notified at least 30 days in advance of 

all Board and committee meetings 

unless an emergency meeting is 

declared. 

(c) Any action of the Board shall 

require the concurring votes of a 

majority of those present and voting. 

(d) At the start of each fiscal period, 

the Board will select a chairperson and 

vice chairperson. The chairperson, or in 

the chairperson’s absence the vice 

chairperson, shall conduct meetings 

throughout that fiscal period. 

(e) In lieu of voting at a properly 

convened meeting and, when in the 

opinion of the chairperson of the Board 

such action is considered necessary, the 

Board may act upon the concurring 

votes of a majority of its members by 

mail, telephone, electronic mail, 

facsimile, or any other means of 

communication, provided that all 

members are notified and given the 

opportunity to vote. All votes shall be 

promptly confirmed in writing. Any 

action so taken shall have the same 

force and effect as though such action 


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had been taken at a properly convened 

meeting of the Board. All votes shall be 

recorded in the Board minutes. 

(f) There shall be no voting by proxy. 

(g) The Chairperson shall be a voting 

member of the Board. 

(h) The organization of the Board and 

the procedures for conducting meetings 

shall be in accordance with the Board’s 

bylaws, which shall be established by 

the Board and approved by the 

Secretary. 

§ 1245.36 Compensation and 

reimbursement. 

(a) Members of the Board, alternates 

when acting as members, and the 

members of any special committees 

formed by the Board shall serve without 

compensation. 

(b) Members of the Board, alternates, 

and the members of any special 

committees shall be reimbursed for 

reasonable travel expenses, as approved 

by the Board, incurred in the 

performance of their Board duties. The 

Board shall have the authority to request 

the attendance of alternates of any or all 

meetings, notwithstanding the expected 

or actual presence of the respective 

members. 

§ 1245.37 Powers and duties. 

The Board shall have the following 

powers and duties: 

(a) To administer the Order in 

accordance with its terms and 

provisions of the Act and to collect 

assessments; 

(b) To carry out promotion, research, 

and information plans and projects 

related to U.S. honey; 

(c) To develop and recommend to the 

Department for approval such rules, 

regulations, and by-laws for the conduct 

of its business as it may deem advisable; 

(d) To recommend to the Secretary 

amendments to the Order; 

(e) To pay the costs of promotion, 

research, and information plans and 

projects with assessments collected 

pursuant to section 1245.41, earnings 

from invested assessments, and other 

funds authorized under this part. 

(f) To appoint and convene, from time 

to time, special committees and 

subcommittees which may include 

producers, first handlers, exporters, 

members of wholesale or retail outlets 

for honey, or other members of the 

public to assist in the development of 

research, promotion, advertising, 

information plans, or projects for U.S. 

honey; 

(g) To prepare and submit to the 

Secretary for approval 60 days in 

advance of the beginning of a fiscal 

period, a budget of its anticipated 

expenses in the administration of this 

part, including the probable costs of all 

promotion, research, and information 

activities and to recommend a rate of 

assessment; 

(h) To meet and organize and select 

from among its members a chairperson, 

and other officers; 

(i) To require its employees to receive, 

investigate, and report to the Secretary 

complaints of violations of the Order; 

(j) To employ persons, other than 

members, as it may deem necessary and 

to determine the compensation and 

define the duties of each employee; 

(k) To cause its books to be audited 

by an independent auditor at the end of 

each fiscal period and to submit a copy 

of each audit to the Secretary; 

(l) To periodically prepare and make 

public and to make available to 

producers reports of its activities carried 

out and, at least once each fiscal period, 

to make public an accounting of funds 

received and expended; 

(m) To give to the Secretary the same 

notice of meetings of the Board and any 

special committees as is given to 

members in order that representatives of 

the Secretary may attend such meetings; 

(n) To notify honey producers of all 

Board meetings through press releases 

or other means; 

(o) To maintain such records as the 

Secretary may require and make such 

records available to the Secretary for 

inspection and audit; 

(p) To account for the receipt and 

disbursement of all funds in the 

possession, or under the control, of the 

Board; and 

(q) To develop plans and projects, and 

enter into contracts or agreements, 

which must be approved by the 

Secretary before becoming effective, for 

the development and carrying out of 

plans or projects of research, 

information, or promotion, and the 

payment of costs thereof with funds 

collected pursuant to this subpart. Each 

contract or agreement shall provide that 

any person who enters into a contract or 

agreement with the Board shall develop 

and submit to the Board a proposed 

activity; keep accurate records of all of 

its transactions relating to the contract 

or agreement; account for funds 

received and expended in connection 

with the contract or agreement; make 

periodic reports to the Board of 

activities conducted under the contract 

or agreement; and make such other 

reports available as the Board or the 

Secretary considers relevant. Any 

contract or agreement shall provide that: 

(1) The contractor or agreeing party 

shall develop and submit to the Board 

a program, plan, or project together with 

a budget or budgets that show the 

estimated cost to be incurred for such 

program, plan, or project; 

(2) The contractor or agreeing party 

shall keep accurate records of all its 

transactions and make periodic reports 

to the Board of activities conducted, 

submit accounting for funds received 

and expended, and make such other 

reports as the Secretary or the Board 

may require; 

(3) The Secretary may audit the 

records of the contracting or agreeing 

party periodically; and 

(4) Any subcontractor who enters into 

a contract with a Board contractor and 

who receives or otherwise uses funds 

allocated by the Board shall be subject 

to the same provisions as the contractor. 

§ 1245.38 Prohibited activities. 

The Board may not engage in, and 

shall prohibit its employees and agents 

from engaging in: 

(a) Any action that would be a conflict 

of interest; and 

(b) Using funds collected by the Board 

under the Order to undertake any action 

for the purpose of influencing 

legislation or governmental policy or 

action, by local, state, national, and 

foreign governments, other than 

recommending to the Secretary 

amendments to the Order. 

Expenses and Assessments 

§ 1245.40 Budget and expenses. 

(a) At least 60 days prior to the 

beginning of each fiscal period, or as 

may be necessary thereafter, the Board 

shall prepare and submit to the 

Secretary a budget for the fiscal period 

covering its anticipated expenses and 

disbursements in the administration of 

this subpart. Each such budget shall 

include: 

(1) A statement of objectives and 

strategy for each plan or project; 

(2) A summary of anticipated revenue, 

with comparative data for at least one 

preceding year (except for the initial 

budget); 

(3) A summary of proposed 

expenditures for each 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, including shifting funds from 

one plan or project to another, must be 

approved by the Secretary before such 

amendment or addition shall occur. 

Shifts of funds which do not cause an 


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increase in the Board’s approved budget 

and which are consistent with 

governing bylaws need not have prior 

approval by the Secretary. 

(d) The Board is authorized to incur 

expenses, including a provision for a 

reserve for operating contingencies, for 

research, promotion, advertising, or 

information activities and such other 

expenses for the administration, 

maintenance, and functioning of the 

Board as may be authorized by the 

Secretary. Such expenses shall be paid 

from funds received by the Board, 

including assessments, contributions 

from persons, and other funds available 

to the Board. 

(e) With approval of the Secretary, 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 research, promotion, 

advertising, or information activities. 

Voluntary contributions shall be free 

from any encumbrances 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, and supervision of the 

Order, including all referenda costs 

incurred in connection with the Order. 

(h) For fiscal years beginning 3 years 

after the date of the Board’s 

establishment, the Board shall not 

expend for administration, 

maintenance, and functioning of the 

Board in a single fiscal year an amount 

that exceeds 15 percent of the 

assessments and other income received 

by the Board for that fiscal year. Such 

limitation on spending shall not include 

reimbursements to the Secretary. 

§ 1245.41 Assessments. 

(a) The assessment rate shall be $0.02 

per pound of U.S. honey produced and 

shall only be imposed on producers of 

100,000 pounds or more per fiscal year. 

Such assessments shall not be levied on 

the portion of U.S. honey which does 

not enter commerce and which is 

utilized solely to sustain a producer’s 

own colonies of bees. 

(b) The assessment rate shall not be 

increased without an affirmative vote of 

five members of the Board. The 

assessment rate shall not be increased 

by more than $0.005 per fiscal year and 

shall not exceed $0.05 per pound. Any 

change in the assessment rate shall be 

announced by the Board at least 30 days 

prior to becoming effective and shall not 

be subject to a vote in a referendum. 

Any change in the assessment rate shall 

be subject to rulemaking. 

(c) Except as provided in this section, 

the first handler shall collect the 

assessment from the producer or deduct 

such assessment from the proceeds paid 

to the producer on whose honey the 

assessment is made, and remit the 

assessments to the Board. The first 

handler shall furnish the producer with 

evidence of such payment. Any such 

collection or deduction of assessment 

shall be made not later than the time 

when the assessment becomes payable 

to the Board. The first handler shall 

maintain separate records for each 

producer’s honey handled, including 

honey produced by said handler. 

Should a first handler fail to collect an 

assessment from a producer, the 

producer shall be responsible for the 

payment of the assessment to the Board. 

(d) First handlers shall remit to the 

Board the assessment on all U.S. honey 

for which they act as first handler, in 

addition to the assessment owed on U.S. 

honey they produce. 

(e) The first handler shall collect and 

pay assessments to the Board unless 

such handler has received 

documentation acceptable to the Board 

that the assessment has been previously 

paid. 

(f) Assessments shall be paid to the 

Board on a monthly basis no later than 

the fifteenth day of the month following 

the month in which the U.S. honey was 

produced unless the Board determines 

that assessments due shall be paid to the 

Board at a different time and manner, 

with approval of the Secretary. The 

Board may recommend different 

payment schedules so as to recognize 

differences in marketing or purchasing 

practices and procedures. 

(g) The Board may authorize other 

organizations to collect assessments on 

its behalf with the approval of the 

Secretary. 

§ 1245.42 Late payment. 

(a) There shall be a late-payment 

charge imposed on any person who fails 

to remit to the Board the total amount 

for which any such person is liable on 

or before the payment due date 

established by the Board. The amount of 

the late-payment charge shall be 

prescribed in regulations issued by the 

Secretary. 

(b) There shall also be imposed on 

any person subject to a late-payment 

charge, an additional charge in the form 

of interest on the outstanding portion of 

any amount for which the person is 

liable. The rate of interest shall be 

prescribed in regulations issued by the 

Secretary. 

(c) Persons failing to remit total 

assessments due in a timely manner 

may also be subject to actions under 

federal debt collection procedures. 

§ 1243.43 Exemption from assessment. 

(a) A producer who produces less 

than 100,000 pounds of U.S. honey per 

year shall be exempt from the payment 

of assessments. Such producer may 

apply to the Board—on a form provided 

by the Board—for a certificate of 

exemption. Such producer shall certify 

that the producer’s production of U.S. 

honey shall be less than 100,000 pounds 

for the fiscal year for which the 

exemption is claimed. 

(b) A producer who operates under an 

approved National Organic Program 

(NOP) (7 CFR part 205) system plan, 

produces 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) To obtain the exemption in 

paragraph (b) of this section, an eligible 

producer shall submit a request for 

exemption to the Board—on a form 

provided by the Board—at any time 

initially and annually thereafter on or 

before the beginning of the fiscal period 

as long as the producer continues to be 

eligible for the exemption. 

(d) The request shall include the 

following: The producer’s name and 

address, a copy of the organic farm or 

organic handling operation certificate 

provided by a USDA-accredited 

certifying agent as defined in the 

Organic Act, a signed certification that 

the applicant meets all of the 

requirements specified for an 

assessment exemption, and such other 

information as may be required by the 

Board and with the approval of the 

Secretary. 

(e) If the producer complies with the 

requirements of paragraph (b) of this 

section, the Board will grant an 

assessment exemption and shall issue a 

Certificate of Exemption to the 

producer. For exemption requests 

received on or before August 15 of the 

fiscal year, the Board will have 60 days 

to approve the exemption request; after 

August 15 of the fiscal year, the Board 

will have 30 days to approve the 

exemption request. If the application is 

disapproved, the Board will notify the 

applicant of the reason(s) for 

disapproval within the same timeframe. 

(f) An exemption will apply 

immediately following the issuance of 

the certificate of exemption. 


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(g) 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 U.S. honey 

produced. 

(h) The Board may recommend to the 

Secretary that honey exported from the 

United States be exempt from this 

subpart and recommend procedures for 

refunding assessments paid on exported 

honey and any necessary safeguards to 

prevent improper use of this exemption. 

§ 1245.44 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 shall not 

exceed one fiscal period’s budget. 

Promotion, Research, and Information 

§ 1245.50 Plans and projects. 

(a) The Board shall receive and 

evaluate, or, on its own initiative, 

develop and submit to the Secretary for 

approval, any plan or project authorized 

under this part. Such plans or projects 

may provide for: 

(1) The establishment, issuance, 

effectuation, or administration of 

appropriate activities for research, 

promotion, advertising, or information, 

including industry and consumer 

information, with respect to U.S. honey; 

(2) The establishment and conduct of 

marketing research and development 

activities to encourage, improve, or 

expand the acquisition of knowledge 

pertaining to U.S. honey or their 

consumption and use, nutritional 

benefits or the marketing and utilization 

of U.S. honey; 

(3) The development and expansion 

of the sale of U.S. honey in foreign 

markets; or 

(4) The sponsorship of research 

designed to advance the costeffectiveness, competitiveness, 

efficiency, pest and disease control, and 

other management aspects of 

beekeeping, U.S. honey production, and 

honey bees. 

(b) No plan or project shall be 

implemented prior to approval by the 

Secretary. Once a plan or project is so 

approved, the Board shall take 

appropriate steps to implement it. 

(c) Each plan or project implemented 

under this part shall be reviewed or 

evaluated periodically by the Board to 

ensure that it contributes to an effective 

program of promotion, research, or 

information. If the Board finds that any 

such plan or project does not contribute 

to an effective program of promotion, 

research, or information, then the Board 

shall terminate such plan or project. 

(d) In addition to any evaluation that 

may be carried out pursuant to 

paragraph (c) of this section, the Board 

shall, not less often than every five 

years, authorize and fund, from funds 

otherwise available to the Board, an 

independent evaluation of the 

effectiveness of the Order and plans and 

projects conducted by the Board 

pursuant to the Act. The Board shall 

submit to the Secretary, and make 

available to the public, the results of 

each periodic independent evaluation 

conducted under this paragraph. 

(e) No plan or project including 

advertising shall be false or misleading 

or disparaging to another agricultural 

commodity including but not limited to 

unfair or deceptive acts or practices 

with respect to quality, value, or use of 

any competing product. In addition, no 

reference to a brand name, trade name, 

or State identification will be made. 

§ 1245.51 Contracts. 

(a) Subject to the approval of the 

Secretary, the Board may: 

(1) Enter into contracts and 

agreements to carry out promotion, 

research, and information activities 

relating to U.S. honey, including 

contracts and agreements with producer 

associations or other entities as 

considered appropriate by the Secretary; 

and 

(2) Pay the cost of approved 

promotion, research, and information 

activities using assessments collected 

under the Order, earnings obtained from 

assessments, and other income of the 

Board. 

(b) Each contract or agreement shall 

provide that any person who enters into 

the contract or agreement with the 

Board shall: 

(1) Develop and submit to the Board 

a proposed activity together with a 

budget that specifies the cost to be 

incurred to carry out the activity; 

(2) Keep accurate records of all of its 

transactions relating to the contract or 

agreement; 

(3) Account for funds received and 

expended in connection with the 

contract or agreement; 

(4) Make periodic reports to the Board 

of activities conducted under the 

contract or agreement; and 

(5) Make such other reports as the 

Board or the Secretary considers 

relevant. 

(c) Each contract or agreement shall 

provide that: 

(1) The contractor or agreeing party 

shall develop and submit to the Board 

a plan or project together with a budget 

or budgets that shall show the estimated 

cost to be incurred for such plan or 

project; 

(2) The contractor or agreeing party 

shall keep accurate records of all its 

transactions and make periodic reports 

to the Board of activities conducted, 

submit account for funds received and 

expended, and make such other reports 

as the Secretary or the Board may 

require; 

(3) The Secretary may audit the 

records of the contracting or agreeing 

party periodically; and 

(4) Any subcontractor who enters into 

a contract with a Board contractor and 

who receive or otherwise uses funds 

allocated by the Board shall be subject 

to the same provisions as the contractor. 

§ 1245.52 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

(a) Patents, copyrights, trademarks, 

information, publications, and product 

formulations developed through the use 

of funds received by the Board under 

this subpart: 

(1) 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; 

(2) Shall be considered income 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Board; and 

(3) May be licensed subject to 

approval by the Department. 

(b) Upon termination of this subpart, 

section 1245.73 shall apply to determine 

disposition of all such property. 

Reports, Books, and Records 

§ 1245.60 First handler reports. 

(a) Each first handler subject to this 

part shall be required to report to the 

Board, at such time and in such manner 

as the Board may prescribe such 

information as may be necessary for the 

Board to perform its duties. Such 

reports may include, but shall not be 

limited to the following: 

(1) The first handler’s name and 

address; 

(2) The date of report (which is also 

date of payment to the Board); 

(3) The period covered by report; and 

(4) The total quantity of U.S. domestic 

honey determined as assessable during 

the reporting period. 

(b) First handlers who collect 

assessments from producers or withhold 

assessments for their accounts or pay 


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the assessments themselves shall also 

include with each report a list of all 

such producers whose honey was 

handled during the period, their 

addresses, and the total assessable 

quantities handled for each such 

producer. 

(c) First handlers shall also include 

with each report the following: 

(1) The total quantity of U.S. honey 

acquired during the reporting period; 

(2) The total quantity of U.S. honey 

handled during such period; 

(3) The amount of U.S. honey 

acquired from each producer, giving the 

name and address of each producer; 

(4) The assessments collected during 

the reporting period; 

(5) The quantity of U.S. honey 

purchased from a first handler 

responsible for paying the assessment 

due pursuant to this Order; 

(6) The date that assessment payments 

were made on U.S. honey handled; 

(7) The first handler’s tax 

identification number; 

(8) The quantity of U.S. honey 

processed for sale from a first handler’s 

own production; and 

(9) A record of each transaction for 

U.S. honey on which assessments had 

already been paid, including a statement 

from the seller that the assessment had 

been paid. 

(d) In the event of a first handler’s 

death, bankruptcy, receivership, or 

incapacity to act, the representative of 

the handler or his or her estate, shall be 

considered the first handler for the 

purposes of this part. 

§ 1245.61 Books and records. 

Each first handler and producer shall 

maintain, and during normal business 

hours, make available for inspection by 

employees or agents of the Board or the 

Secretary, such books and records as are 

necessary to carry out the provisions of 

this part, including such records as are 

necessary to verify any required reports. 

A member or alternate member of the 

Board is prohibited from conducting 

inspections authorized by this section. 

Such books and records shall be 

maintained for two years beyond the 

fiscal period of their applicability. 

(a) The Board may request any other 

information from first handlers and 

producers, that it deems necessary to 

perform its duties under this subpart, 

subject to the approval of the Secretary. 

§ 1245.62 Confidential treatment. 

(a) All information obtained from the 

books, records, or reports required to be 

maintained by producers shall be kept 

confidential by all employees and 

agents of the Board and all officers and 

employees of the Department, and shall 

not be disclosed to the public. Only 

such information as the Secretary deems 

relevant shall be disclosed, and then 

only in a judicial proceeding or 

administrative hearing brought at the 

direction, or upon the request, of the 

Secretary, or to which the Secretary or 

any officer of the United States is a 

party, and involving this subpart. 

(b) Nothing in this subpart shall be 

deemed to prohibit: 

(1) The issuance of general statements 

based upon the reports of the number of 

producers or first handlers or statistical 

data collected therefrom, if such 

statements do not identify the 

information furnished by any person; or 

(2) 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 

§ 1245.70 Right of the Secretary. 

All fiscal matters, plans or projects, 

rules or regulations, reports, contracts, 

agreements, or other substantive actions 

proposed and prepared by the Board 

shall be submitted to the Secretary for 

approval. 

§ 1245.71 Referenda. 

(a) After the initial referendum, the 

Secretary shall conduct subsequent 

referenda; 

(1) Every seven years, to determine 

whether producers of U.S. honey favor 

the continuation, suspension, or 

termination of the Order. The Order 

shall continue if it is favored by a 

majority of the producers voting for 

approval in the referendum and who 

also represent a majority of the volume 

of U.S. honey produced. 

(2) At the request of the Board or 

when petitioned by ten (10) percent or 

more of the number of persons eligible 

to vote under the Order, but not more 

often than once every five years under 

this paragraph; or 

(3) Whenever the Department deems 

that a referendum is necessary. 

§ 1245.72 Suspension or termination. 

(a) The Secretary shall suspend or 

terminate this part or subpart or a 

provision thereof if the Secretary finds 

that the subpart or a provision thereof 

obstructs or does not tend to effectuate 

the purposes of the Act, or if the 

Secretary determines that this subpart or 

a provision thereof is not favored by 

persons voting in a referendum 

conducted pursuant to the Act. 

(b) The Secretary shall suspend or 

terminate this subpart at the end of the 

marketing year whenever the Secretary 

determines that its suspension or 

termination is approved or favored by a 

majority of the producers voting who, 

during a representative period 

determined by the Secretary, have been 

engaged in the production of U.S. 

honey. 

(c) If, as a result of a referendum the 

Secretary determines that this subpart is 

not approved, the Secretary shall: 

(1) Not later than 180 days after 

making the determination, suspend or 

terminate, as the case may be, collection 

of assessments under this subpart; and 

(2) As soon as practical, suspend or 

terminate, as the case may be, activities 

under this Order and regulations issued 

hereunder in an orderly manner. 

§ 1245.73 Proceedings after termination. 

(a) Upon the termination of this 

subpart, the Board shall recommend to 

the Secretary not more than five of its 

members to serve as trustees for the 

purpose of liquidating the affairs of the 

Board. Such persons, upon designation 

by the Secretary, shall become trustees 

of all funds and property then in 

possession or under control of the 

Board, including claims for any funds 

unpaid or property not delivered or any 

other claim existing at the time of such 

termination. 

(b) The said trustees shall: 

(1) Continue in such capacity until 

discharged by the Secretary; 

(2) Carry out the obligations of the 

Board under any contracts or 

agreements entered into by it pursuant 

to § 1245.37; 

(3) From time to time account for all 

receipts and disbursements and deliver 

all property on hand, together with all 

books and records of the Board and of 

the trustees, to such person as the 

Secretary may direct; and 

(4) Upon the direction of the 

Secretary, execute such assignments or 

other instruments necessary or 

appropriate to vest in such person full 

title and right to all of the funds, 

property, and claims vested in the Board 

or the trustees pursuant to this subpart. 

(c) Any person to whom funds, 

property, or claims have been 

transferred or delivered pursuant to this 

subpart shall be subject to the same 

obligations as imposed upon the 

trustees. 

(d) Any residual funds not required to 

defray the necessary expenses of 

liquidation shall be returned to the 

persons who contributed such funds, or 

paid assessments, or if not practicable, 

shall be turned over to the Department 

to be utilized, to the extent practicable, 

in the interest of continuing one or more 

of the honey research or education 

programs hitherto authorized. 


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§ 1245.74 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 subpart; 

(b) Release or extinguish any violation 

of this subpart; or 

(c) Affect or impair any rights or 

remedies of the United States or any 

person with respect to any violation. 

§ 1245.75 Personal liability. 

No member, alternate member, 

employee, or agent of the Board shall 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 such member, alternate member, 

employee, or agent, except for acts of 

dishonesty or willful misconduct. 

§ 1245.76 Separability. 

If any provision of this subpart is 

declared invalid or the applicability 

thereof to any person or circumstance is 

held invalid, the validity of the 

remainder of this subpart, or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

§ 1245.77 Amendments. 

Amendments to this Order may be 

proposed from time to time by the Board 

or by any interested person affected by 

the provisions of the Act, including the 

Department. 

§ 1245.78 OMB control numbers. 

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, OMB control number 0581– 

0217, and OMB control number 0581– 

[NEW, to be assigned by OMB]. 

Dated: June 30, 2009. 

Robert C. Keeney, 

Acting Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. E9–16401 Filed 7–8–09; 4:15 pm] 

BILLING CODE P 


PWALKER on DSK8KYBLC1PROD with PROPOSALS2