Establishment of a U.S. Honey Producer Research, Promotion, and Consumer Information Order, 18430-18446 [2010-7575]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 75, Number 69 (Monday, April 12, 2010)]
[Proposed Rules]
[Pages 18430-18446]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7575]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1245

[Doc. No. AMS-FV-07-0091; FV-07-706-PR-2A]
RIN 0581-AC78


Establishment of a U.S. Honey Producer Research, Promotion, and 
Consumer Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and Referendum Order.

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SUMMARY: This proposed rule would establish 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 is conducting an initial referendum 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 would be implemented if it 
is approved by 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. A 
separate final rule on referendum procedures is being published in this 
issue of the Federal Register.

DATES: The voting period is May 17, 2010 through June 4, 2010. To be 
eligible to vote, producers must have produced 100,000 or more pounds 
of honey from January 1, 2008 through December 31, 2008. Ballots will 
be mailed to all known honey producers on or before May 17, 2010. 
Ballots must be received by the referendum agent no later than the 
close of business by 4:30 p.m. (Eastern Time) on June 4, 2010.

ADDRESSES: Copies of the Proposed U.S. Producer Order may be obtained 
from: Referendum Agent, Research and Promotion Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 
0244, Room 0632-S, Washington, DC 20250-0244; telephone: (202) 720-9915 
or (888) 720-9917 (toll free); or facsimile: (202) 205-2800; or can be 
viewed at https://www.regulations.gov.

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 proposed rule is issued under the 
Commodity Promotion, Research, and

[[Page 18431]]

Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
    As part of this rulemaking, a proposed rule was published in the 
Federal Register on July 14, 2009 [74 FR 34182], with a 60-day comment 
period which closed on September 4, 2009. Fourteen comments were 
received.
    In a separate rulemaking, 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 proposed rule for the Processed U.S. Producer Order 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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have 
retroactive effect.
    Section 524 of the 1996 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 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, the Original Order was terminated 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. 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. 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 would 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.

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

[[Page 18432]]

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. 
marketplace. The AHPA stated in its 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 different commodity 
groups. Section 516 of the 1996 Act contains permissive terms that may 
be included in the orders. For example, Sec.  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 
Sec.  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 conducting 
a referendum, 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

[[Page 18433]]

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 it 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. 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 National 
Organic Program (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 Board 
members 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

[[Page 18434]]

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 a 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, 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.

[[Page 18435]]

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 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 
``producer-packer'' 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; (6) to delete from 
section 1245.37(q) what was duplicated in section 1245.51; and (7) to 
modify section numbers as appropriate to match the above necessary 
changes made to the proposal.

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

[[Page 18436]]

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.
    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.
    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 Sec.  
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, produce 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 an 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, 
the Department invited comments concerning potential effects. We did 
not receive any comments as a result of the publication of the Initial 
Regulatory Flexibility Analysis.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), AMS submitted to OMB a new information collection for the

[[Page 18437]]

Proposed U.S. Honey Producer Program under OMB control number 0581-NEW.
    Title: Advisory Committee and Research and Promotion Board 
Background Information.
    OMB Number for background form AD-755: (Approved under OMB No. 
0505-0001).
    Expiration Date of approval: July 31, 2012.
    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.
    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.
    In the July 14, 2009 proposed rule, comments were 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

[[Page 18438]]

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. We did not receive any comments on the 
collection of information part of this rule.

Comments

    A 60-day comment period was provided to allow interested persons an 
opportunity to respond to this proposal, published in the Federal 
Register on July 14, 2009. Fourteen comments were received on the 
Proposed U.S. Producer Order by the June 08, 2009 deadline. Ten 
commenters supported the Proposed U.S. Producer Order, three were 
opposed, and one comment was an attachment of the original proposal 
submitted by the AHPA without any additional comments attached.
    One commenter that opposed the Proposed U.S. Producer Order was 
concerned about the effect of the cost of the program on the national 
taxpayer. If the Proposed U.S. Producer Order is approved in 
referendum, the assessment rate will be $0.02 per pound of U.S. honey 
produced and will only be imposed on producers of 100,000 pounds or 
more per fiscal year. Research and promotion programs under the 
Department are self-help programs, funded by assessments on their 
applicable industries, and do not receive taxpayer funds. Therefore, 
those which characterize or refer to assessments as taxes are not 
correct, and are referred to in the discussion of comments as 
assessments.
    One commenter that opposed the Proposed U.S. Producer Order stated 
that the price of honey is unaffordable and the addition of a research 
program for honey would subsequently increase the price further. The 
purpose of the Proposed U.S. Producer Order is to maintain and expand 
markets for U.S. honey as well as to develop and carry out generic 
promotion, research, and information activities relating to U.S. honey. 
The Proposed U.S. Producer Order does not regulate the price of honey.
    Two commenters that opposed the Proposed U.S. Producer Order 
believe that there is not a need to strengthen the position of U.S. 
honey because there is already a demand for U.S. honey. AHPA believes 
that funding of an all U.S. Honey Producer Board, will allow for 
opportunities beyond those already available, including increasing the 
demand of U.S. honey. Funding will allow for 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.
    One commenter that opposed the Proposed U.S. Producer Order would 
like to opt-out of all honey programs. U.S. honey producers are given 
the opportunity to vote to determine whether the implementation of the 
Proposed U.S. Producer Order is favored by a majority of eligible 
persons voting who also represent a majority of the volume of U.S. 
honey produced. In addition, the Honey Packers and Importers program 
requires a continuance referendum every 7 years. The referendum allows 
the industry to determine the future of these programs.
    One commenter that opposed the Proposed U.S. Producer Order 
believes that the threshold for exemption will lead to loopholes and 
possible fraud to avoid assessment. First handlers and producers, 
including those exempt under the Proposed U.S. Producer Order, are 
required to maintain and make available for inspection and audit by 
employees or agents of the Board or the Secretary, such books and 
records as are necessary to carry out the provisions of the Proposed 
U.S. Producer Order. This requirement ensures that the Order is 
enforced.
    Two commenters that opposed the Proposed U.S. Producer Order 
believe that assessments solely on U.S. honey producers would be an 
unwarranted expense that will punish U.S. honey producers. In addition 
two commenters that supported the Proposed U.S. Producer Order stated 
that the proposed assessment should be on foreign honey only. Research 
and promotion programs are self-help programs, funded by their 
applicable industries. The Proposed U.S. Producer Order represents the 
interest of U.S. honey producers alone and therefore should be funded 
by U.S. honey producers. The assessment would be a self imposed-
assessment only if the Department determines that the implementation of 
the Proposed U.S. Producer Order 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.
    One commenter that opposed the Proposed U.S. Producer Order and one 
commenter that supported the Proposed U.S. Producer Order, who both pay 
an assessment under the Packers and Importers Order, are concerned that 
they will have to pay an assessment under the Proposed U.S. Producer 
Order as well. Under the Packers and Importers Order, first handlers 
must pay an assessment rate of $0.01 per pound that they handle. 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. If a producer also 
handles his or her own honey production, that producer will be covered 
under both programs.
    Five commenters that supported the Proposed U.S. Producer Order 
stated that although there is currently a Packers and Importers Order, 
the U.S. honey producers would best be served by the Proposed U.S. 
Producer Order. The commenters believe that the interests of producers 
vary from those of the importers.
    Five commenters that supported the Proposed U.S. Producer Order 
were concerned about what they believe is a decline in market share of 
U.S. honey. One commenter that supported the Proposed U.S. Producer 
Order believes that the continual low prices of what the commenter 
believes is adulterated and contaminated honey, has forced commercial 
beekeepers out of the marketplace. Two commenters believe that an all 
U.S. honey program will address the perceived quality issue of honey by 
allowing the Proposed Board to promote U.S. honey.
    Six commenters that supported the Proposed U.S. Producer Order 
spoke to the growing concern in the industry of the effect of Colony 
Collapse Disorder (CCD) and believe that although there is currently a 
Packers and Importers Order the Proposed U.S. Producer Order as U.S. 
honey producers are uniquely impacted by CCD. In addition, one 
commenter that supported the Proposed U.S. Producer Order stated that 
any assessment that benefits the U.S. bee population is paramount. Two 
commenters that supported the Proposed U.S. Producer Order stated that 
having industry funds available will allow for more immediate research 
response to beekeeping needs as well as to the overall benefits of U.S. 
honey.

Referendum Order

    Pursuant to the 1996 Act, a referendum will be conducted to 
determine whether eligible producers of honey favor issuance of the 
Proposed U.S. Producer Order. The Proposed U.S. Producer Order is 
authorized under the 1996 Act.
    The representative period for establishing voter eligibility for 
the referendum shall be the period from January 1, 2008, through 
December 31, 2008. Producers must have produced 100,000 pounds of honey 
during the

[[Page 18439]]

representative period from January 1, 2008 through December 31, 2008, 
to be eligible to vote. The referendum shall be conducted by mail 
ballot from May 17, 2010 through June 4, 2010. Ballots must be received 
by the referendum agent no later than the close of business 4:30 pm 
(Eastern Time) on June 4, 2010, to be counted.
    Section 518 of the 1996 Act authorizes the Department to conduct a 
referendum prior to the Order's effective date. The Order shall become 
effective only if it is determined that the Order has been approved by 
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.
    Kimberly Coy, of the USDA, AMS, Research and Promotion Branch, is 
designated as the referendum agent to conduct this referendum. The 
referendum procedures [7 CFR 1245.100 through 1245.108], which were 
issued pursuant to the 1996 Act, shall be used to conduct the 
referendum.
    The referendum agent will mail registration instructions to all 
known eligible producers in advance of the referendum. Any producer who 
does not receive registration instructions should contact the 
referendum agent cited under the ``For Further Information'' section no 
later than one week before the end of the registration period. Prior to 
the first day of the voting period, the referendum agent will mail the 
ballots to be cast in the referendum and voting instructions to all 
eligible voters. Persons who are producers during the representative 
period are eligible to vote. Any producer who does not receive a ballot 
should contact the referendum agent cited under the ``For Further 
Information'' section no later than one week before the end of the 
registration period. Ballots must be received by the referendum agents 
no later than the close of business (Eastern time) on or before June 4, 
2010, to be counted.

List of Subjects in 7 CFR Parts 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 by 
adding Part 1245 to read as follows:

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

Definitions

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.
1