[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 34200-34204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16405]



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Part IV





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1245



U.S. Honey Producer Research, Promotion, and Consumer Information 
Order; Referendum Procedures; Proposed Rule

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

[[Page 34200]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1245

[Doc. No. AMS-FV-07-0091; FV-07-706-PR-1B]
RIN 0581-AC78


U.S. Honey Producer Research, Promotion, and Consumer Information 
Order; Referendum Procedures

AGENCY: Agricultural Marketing Service, Agriculture, USDA.

ACTION: Proposed rule with request for comments.

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SUMMARY: The purpose of this proposed rule is to establish procedures 
which the Department of Agriculture (USDA or the Department) will use 
in conducting a referendum to determine whether the issuance of the 
proposed U.S. Honey Producer Research, Promotion, and Consumer 
Information Order (Proposed U.S. Producer Order) is favored by persons 
to be covered by and assessed under this Order. The Proposed U.S. 
Producer Order will be implemented if it is approved by a majority of 
the eligible producers voting in the referendum who also represent a 
majority of the volume of U.S. honey produced. These procedures would 
also be used for any subsequent referendum under the Order, if it is 
approved in the initial referendum. The Proposed U.S. Producer Order is 
being published separately in this issue of the Federal Register. This 
proposed program would be implemented under the Commodity Promotion, 
Research, and Information Act of 1996 (1996 Act).

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 
concerning this rule. Comments can be made on the Internet at http://www.regulations.gov or to the Research and Promotion Branch, Fruit and 
Vegetable Programs, Agricultural Marketing Service, USDA, Stop 0244, 
Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; 
Fax (202) 205-2800. Comments should reference the docket number, title 
of action, date, and page number of this issue of the Federal Register 
and will be made available for public inspection in the above office 
during regular business hours or can be viewed at http://www.regulations.gov.
    Pursuant to the Paperwork Reduction Act (PRA), send 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, 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, FV, AMS, USDA, Stop 0244, Room 0634-S, 
1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone 
202-720-9915 or (888) 720-9917 (toll free) or e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: A referendum will be conducted among 
eligible U.S. producers of honey to determine whether they favor 
issuance of the proposed U.S. Honey Producer Research, Promotion, and 
Consumer Information Order (Proposed U.S. Producer Order) [7 CFR part 
1245]. The program will be implemented if it is approved by a majority 
of U.S. honey producers voting in the referendum who also represent a 
majority of the volume of U.S. honey produced. The Order is authorized 
under the Commodity Promotion, Research, and Information Act of 1996 
(1996 Act) [7 U.S.C. 7411-7425]. The Order would cover the producers of 
U.S. honey of 100,000 pounds or more. The Proposed U.S. Producer Order 
is being published separately in this issue of the Federal Register.

Executive Order 12866

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

Executive Order 12988

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

Initial Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 
601-612], the Department is required to examine the impact of the 
proposed rule on small entities. The purpose of the RFA is to fit 
regulatory actions to the scale of businesses subject to such action so 
that small businesses will not be disproportionately burdened.
    The 1996 Act, which authorizes the Department to consider industry 
proposals for generic programs of promotion, research, and information 
for agricultural commodities, became effective on April 4, 1996. The 
1996 Act provides for alternatives within the terms of a variety of 
provisions.
    Paragraph (e) of Section 518 of the 1996 Act provides three options 
for determining industry approval of a new research and promotion 
program: (1) By a majority of those persons voting; (2) by persons 
voting for approval who represent a majority of the volume of the 
agricultural commodity; or (3) by a majority of those persons voting 
for approval who also represent a majority of the volume of the 
agricultural commodity. In addition, Section 518 of the 1996 Act 
provides for referenda to ascertain approval of an order to be 
conducted either prior to its going into effect or within three years 
after assessments first begin under an order. The American Honey 
Producers Association (AHPA), the proponent of the Proposed U.S. 
Producer Order, has recommended that the Department conduct a 
referendum in which approval of an order would be based on a majority 
of U.S. producers of honey voting in the referendum who also represent 
a majority of the volume of U.S. honey produced. The Department 
proposes that a referendum be

[[Page 34201]]

conducted prior to the Proposed U.S. Producer Order going into effect.
    This proposed rule would establish the procedures under which 
producers of U.S. honey may vote on whether they want a U.S. honey 
producer research, promotion, and consumer information program to be 
implemented. This proposal would add a new subpart which establishes 
procedures to conduct an initial referendum and future referenda. The 
proposed subpart covers definitions, voting instructions, use of 
subagents, ballots, the referendum report, and confidentiality of 
information.
    There are approximately 317 producers of honey who would be subject 
to the program and eligible to vote in the first referendum. The Small 
Business Administration [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, most producers would be 
considered small businesses.
    National Agricultural Statistic Service (NASS) data reports that 
U.S. production of honey, from producers with five or more colonies, 
totaled 155 million pounds in 2006. The top ten producing States in 
2006 included North Dakota, South Dakota, California, Florida, 
Minnesota, Montana, Texas, Wisconsin, Idaho, and New York. To avoid 
disclosing data for individual operations, NASS statistics do not 
include Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, 
Oklahoma, Rhode Island, and South Carolina. NASS reported the value of 
honey sold in 2006 was $161,314,000. Honey prices increased during 2006 
to 104.2 cents, up 14 percent from 91.8 cents in 2005.
    There is a current Honey Packers and Importers Research, Promotion, 
Consumer Education, and Industry Information Order (Packers and 
Importers Order) in effect (7 CFR Part 1212) that replaced the Original 
Honey Research, Promotion, and Consumer Information Order (Original 
Order) on May 15, 2008 [73 FR 29390]. Based on the assessment reports 
in connection with the Original Honey Research, Promotion, and Consumer 
Information Order and recorded by U.S. Customs and Border Protection, 
seventeen countries produced over 93 percent of the honey imported into 
the U.S. In 2005, five of these countries produced almost 79 percent of 
the total honey imported into the United States. These countries and 
their share of the imports are: China (28%), Argentina (21%), Vietnam 
(13%), Canada (10%), and India (8%). Imports accounted for 69 percent 
of U.S. consumption in 2006, an increase of 18 percent, up from 51 
percent since 2002. In 2006, 155 million pounds of honey were produced 
in the United States, 279.4 million pounds were imported and 7.6 
million pounds were exported. At the initial rate of $0.02 per pound, 
revenue for the Proposed U.S. Producer Order would be approximately 
$1.9 million in a twelve month period.
    This proposed rule provides the procedures under which U.S. honey 
producers may vote on whether they want the Proposed U.S. Producer 
Order to be implemented. In accordance with the provisions of the 1996 
Act, subsequent referenda may be conducted, and it is anticipated that 
the proposed procedures would apply. There are approximately 317 
producers of honey who would be eligible to vote in the first 
referendum. U.S. honey producers of less than 100,000 pounds of U.S. 
honey annually would be exempt from assessments and not eligible to 
vote in the referendum.
    USDA will keep these U.S. honey producers informed throughout the 
program implementation and referendum process to ensure that they are 
aware of and are able to participate in the program implementation 
process. USDA will also publicize information regarding the referendum 
process so that trade associations and related industry media can be 
kept informed.
    Voting in the referendum is optional. However, if U.S. honey 
producers choose to vote, the burden of voting would be offset by the 
benefits of having the opportunity to vote on whether or not they want 
to be covered by the Proposed U.S. Producer program.
    The information collection requirements contained in this proposed 
rule are designed to minimize the burden on U.S. honey producers. This 
rule provides for a ballot to be used by eligible U.S. honey producers 
to vote in the referendum. The estimated total cost of providing 
information by an estimated 317 U.S. producers would be $317 or $1.00 
per U.S. producers.
    USDA considered requiring eligible voters to vote in person at 
various USDA offices across the country. USDA also considered 
electronic voting, but the use of computers is not universal. 
Conducting the referendum from one central location by mail ballot 
would be more cost effective and reliable. USDA will provide easy 
access to information for potential voters through a toll free 
telephone line.
    There are no federal rules that duplicate, overlap, or conflict 
with this rule.
    We have performed this Initial Regulatory Flexibility Analysis 
regarding the impact of this proposed rule on small entities.

Paperwork Reduction Act

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

Referendum Ballot

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hours per response for each 
U.S. honey producer.
    Respondents: U.S. honey producers.
    Estimated Number of Respondents: 317.
    Estimated Number of Responses per Respondent: 1 every 7 years 
(0.14).
    Estimated Total Annual Burden on Respondents: 11 hours.
    The ballot will be added to the other information collections 
approved for use under OMB Number 0581-NEW.
    Comments: Comments are invited on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) the accuracy of USDA's estimate of

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the burden of the proposed collection of information, including the 
validity of the methodology and assumptions 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 should reference OMB No. 0581-NEW and the U.S. Honey 
Producer Research, Promotion, Consumer Information Order, and should be 
sent to USDA in care of Sonia Jimenez at the address above and 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.
    All comments received will be available for public inspection 
during regular business hours at the same address and at http://www.regulations.gov. All responses to this proposed rule will be 
summarized and included in the request for OMB approval. All comments 
will also become a matter of the public record.
    The Agricultural Marketing Service (AMS) is committed to complying 
with the E-Government Act, to promote the use of the Internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.
    The estimated annual cost of providing the information by an 
estimated 317 U.S. honey producers would be $317 or $1.00 per producer.
    A 60-day comment period is provided to allow interested persons to 
comment on this proposed information collection.

Background

    The 1996 Act, which became effective on April 4, 1996, authorizes 
the Department to establish a national research and promotion program 
covering domestic and imported honey and honey products. The AHPA 
submitted the Proposed U.S. Producer Order on May 25, 2007, and 
modifications were made to the proposal to make it consistent with the 
1996 Act. The proposal is being published for public comment in this 
issue of the Federal Register.
    The Proposed U.S. Producer Order would provide for the development 
and financing of an effective and coordinated program of promotion, 
research, and consumer and industry information for honey and honey 
products in the United States. The program would be funded by an 
assessment levied on U.S. honey producers at an initial rate of $0.02 
per pound. U.S. honey producers of less than 100,000 pounds of U.S. 
honey annually will be exempt from assessments. At the initial rate of 
$0.02 per pound, revenue for the Proposed U.S. Producer Order would be 
approximately $1.9 million in a twelve month period.
    The assessments would be used to pay for promotion, research, and 
consumer and industry information; administration, maintenance, and 
functioning of the U.S. Honey Producer Board; and expenses incurred by 
the Department in implementing and administering the Order, including 
referendum costs.
    Section 1206 of the 1996 Act requires that a referendum be 
conducted among U.S. honey producers of honey to determine whether they 
favor implementation of the Proposed U.S. Producer Order. That section 
also requires the Proposed U.S. Producer Order to be approved by a 
majority of U.S. honey producers of honey during the representative 
period.
    This proposed rule establishes the procedures under which U.S. 
honey producers of honey may vote on whether they want the U.S. honey 
producer research, promotion, and consumer information program to be 
implemented. There are approximately 317 eligible voters.
    This proposed rule would add a new subpart which would establish 
procedures to be used in this and future referenda. This subpart covers 
definitions, voting, instructions, use of subagents, ballots, the 
referendum report, and confidentiality of information.
    All written comments received in response to this rule by the date 
specified will be considered prior to finalizing this action. We 
encourage the industry to pay particular attention to the definitions 
to be sure that they are appropriate for the honey industry.

List of Subjects in 7 CFR Part 1245

    Administrative practice and procedure, Advertising, Consumer 
Education, 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:

PART 1245--U.S. HONEY PRODUCER RESEARCH, PROMOTION, AND CONSUMER 
INFORMATION ORDER

    1. The authority citation for part 1245 continues to read as 
follows:

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

    2. Subpart B of 7 CFR part 1245 (as proposed to be added in Federal 
Register document 2009-16401 published elsewhere in this issue) is 
proposed to be added to Title 7, Chapter XI of the Code of Federal 
Regulations to read as follows:
Subpart B--Referendum Procedures
Sec.
1245.100 General.
1245.101 Definitions.
1245.102 Voting.
1245.103 Instructions.
1245.104 Subagents.
1245.105 Ballots.
1245.106 Referendum report.
1245.107 Confidential information.
1245.108 OMB control number.

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

Subpart B--Referendum Procedures


Sec.  1245.100  General.

    Referenda to determine whether eligible U.S. producers favor the 
issuance, continuance, amendment, suspension, or termination of the 
U.S. Honey Producer Research, Promotion, and Consumer Information Order 
shall be conducted in accordance with this subpart.


Sec.  1245.101  Definitions.

    (a) Administrator means the Administrator of the Agricultural 
Marketing Service, with power to re-delegate, or any officer or 
employee of the U.S. Department of Agriculture to whom authority has 
been delegated or may hereafter be delegated to act in the 
Administrator's stead.
    (b) Department means the U.S. Department of Agriculture or any 
officer or employee of the Department to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated, to act 
in the Secretary's stead.
    (c) Eligible producer means any person who produces 100,000 pounds 
or more of honey in any State for sale in commerce and is subject to 
pay assessments to the Board on such U.S. honey produced during the 
representative period and who:
    (1) Owns or shares in the ownership of honey bee colonies or 
beekeeping equipment resulting in the ownership of the U.S. honey 
produced;
    (2) Rents honey bee colonies or beekeeping equipment resulting in 
the

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ownership of all or a portion of the U.S. honey produced;
    (3) Owns honey bee colonies or beekeeping equipment but does not 
manage them and, as compensation, obtains the ownership of a portion of 
the U.S. honey produced; or
    (4) Is a party in a lessor-lessee relationship or a divided 
ownership arrangement involving totally independent entities 
cooperating only to produce honey that share the risk of loss and 
receive a share of the U.S. honey produced. No other acquisition of 
legal title to honey shall be deemed to result in persons becoming 
eligible producers.
    (d) Honey means the nectar and saccharine exudations of plants that 
are gathered, modified, and stored in the comb by honeybees, including 
comb honey.
    (e) Honey products mean products where honey is a principal 
ingredient. For purposes of this subpart, a product shall be considered 
to have honey as a principal ingredient, if the product contains at 
least 50 percent honey by weight.
    (f) Order means the U.S. Honey Producer Research, Promotion, and 
Consumer Information Order.
    (g) Person means any individual, group of individuals, partnership, 
corporation, association, cooperative, or any other legal entity. For 
the purpose of this definition, the term ``partnership'' includes, but 
is not limited to:
    (1) A spouse or marital partner who have title to, or leasehold 
interest in, honey bee colonies or beekeeping equipment as tenants in 
common, joint tenants, tenants by the entirety, or, under community 
property laws, as community property; and
    (2) So-called ``joint ventures'' wherein one or more parties to an 
agreement, informal or otherwise, contributed land and others 
contributed capital, labor, management, equipment, or other services, 
or any variation of such contributions by two or more parties, so that 
it results in the production, or handling for market and the authority 
to transfer title to the honey so produced, or handled.
    (h) Referendum agent or agent means the individual or individuals 
designated by the Department to conduct the referendum.
    (i) Representative period means the period designated by the 
Department.
    (j) United States or U.S. means collectively the 50 states, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
territories and possessions of the United States.


Sec.  1245.102  Voting.

    (a) Each person who is an eligible U.S. producer and each person 
who is an eligible producer-packer, as defined in this subpart, at the 
time of the referendum and during the representative period, shall be 
entitled to cast one ballot in the referendum: However, each producer 
in a landlord-tenant relationship or a divided ownership arrangement 
involving totally independent entities cooperating only to produce U.S. 
honey or honey products, in which more than one of the parties is a 
producer, shall be entitled to cast one ballot in the referendum 
covering only that producer's share of the ownership of U.S. honey or 
honey products.
    (b) Proxy voting is not authorized, but an officer or employee of 
an eligible corporate producer may cast one ballot in the referendum on 
behalf of such entity. Any individual so voting in a referendum shall 
certify that they are an officer or employee of the eligible entity, or 
an administrator, executor, or trustee of an eligible entity and that 
such individual has the authority to take such action. Upon request of 
the referendum agent, the individual shall submit adequate evidence of 
such authority.
    (c) All ballots are to be cast by mail, as instructed by the 
Department.


Sec.  1245.103  Instructions.

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


Sec.  1245.104  Subagents.

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


Sec.  1245.105  Ballots.

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


Sec.  1245.106  Referendum report.

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

[[Page 34204]]

Sec.  1245.107  Confidential information.

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


Sec.  1245.108  OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 
is OMB control number 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. E9-16405 Filed 7-8-09; 4:15 pm]
BILLING CODE P