Country of Origin Labeling of Packed Honey, 251-253 [2010-33137]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 76, Number 2 (Tuesday, January 4, 2011)]
[Rules and Regulations]
[Pages 251-253]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-33137]



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Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Rules 
and Regulations

[[Page 251]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 52

[Document No. AMS-FV-08-0075]
RIN 0581-AC89


Country of Origin Labeling of Packed Honey

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule adopts an interim rule, with change, 
establishing new regulations addressing country of origin labeling for 
packed honey bearing any official USDA mark or statement. Also, the 
rule added a new cause for debarment from inspection and certification 
service for honey if country of origin labeling requirements are not 
met for packages of honey containing official USDA grade marks or 
statements. The rule was necessary because section 10402 of the Food, 
Conservation and Energy Act of 2008 (2008 Farm Bill) amended the 
Agricultural Marketing Act of 1946 to require country of origin 
labeling for honey if it contains official USDA grade marks or 
statements.

DATES: Effective Date: February 3, 2011.

FOR FURTHER INFORMATION CONTACT: Chere L. Shorter by phone at (202) 
720-4693 or e-mail to Chere.Shorter@ams.usda.gov.

SUPPLEMENTARY INFORMATION: The regulations governing inspection and 
certification of processed fruits and vegetables 7 CFR part 52, were 
amended by an interim final rule published in the Federal Register on 
July 8, 2009 (74 FR 32389) to include provisions for country of origin 
labeling requirements for packed honey; and for debarment of services 
if the country of origin labeling requirements are not met for packages 
of honey containing official USDA grade marks or statements. The 
interim final rule became effective on October 6, 2009.
    Section 10402 of the 2008 Farm Bill (Pub. L. 110-246) amended 
section 1622(h) of the Agricultural Marketing Act of 1946, (7 U.S.C. 
1621-1627, 1635-1638), to require that all packed honey bearing any 
official USDA mark or statement also bear ``legibly and permanently in 
close proximity (such as on the same side(s) or surface(s)) to the 
certificate, mark, or statement, and in at least a comparable size, the 
[country or] countries of origin of the lot or container of honey, 
preceded by the words `Product of' or other words of similar meaning.'' 
Section 10402 also establishes that a violation of the labeling 
requirements may be deemed by the Secretary of Agriculture to be 
sufficient cause for debarment from the benefits of the Act, only with 
respect to honey, and that the honey amendments shall take effect one 
year after the date of enactment of the 2008 Farm Bill, which is June 
18, 2009.
    The Act authorizes official inspection, grading, and certification 
for processed fruits, vegetables, and processed products made from 
them. This amendment to the Act required the amendment of the 
regulations in 7 CFR part 52, which provide for official inspection and 
certification services with respect to processed fruit, vegetables, and 
miscellaneous products and the fees charged for such services. Section 
52.53 describes and illustrates the use of approved certification 
marks. Section 52.54 lists the acts or practices that may cause 
debarment by the Administrator of any person from any benefits of the 
Act for a specified period of time. These include: (1) Fraud or 
misrepresentation in filing an application; submission of samples; use 
of an inspection report or certificate; use of the words ``Packed under 
continuous inspection of the U.S. Department of Agriculture,'' any 
legend signifying that the product has been officially inspected, any 
statement of grade or similar words; use of a facsimile form; (2) 
willful violations of the regulations; or (3) interfering with an 
inspector, inspector's aid, or licensed sampler. Pursuant to the 
amendment of the Act by the 2008 Farm Bill, section 52.54 was amended 
to add a new paragraph providing for debarment of services if the 
country of origin labeling requirements are not met for honey.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have a retroactive 
effect. There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of this rule.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget (OMB).

Regulatory Flexibility Act and Paperwork Reduction Act

    As required by the Regulatory Flexibility Act (5 U.S.C. 601-612) 
the Agricultural Marketing Service (AMS) has prepared a regulatory 
flexibility analysis.
    AMS estimates that there are between 139,600 and 212,000 beekeepers 
in the United States. The vast majority of beekeepers (95 percent) are 
hobbyists with fewer than 25 hives, or bee colonies, and about 4 
percent are part-time beekeepers who keep from 25 to 299 hives. 
Together, hobbyists and part-time beekeepers account for about 50 
percent of bee colonies and about 40 percent of honey produced. 
Commercial beekeepers are those with 300 or more bee colonies. There 
are approximately 1,600 commercial beekeeping operations in the United 
States, which produce about 60 percent of the nation's honey.
    AMS believes that there are approximately 2,700 producers of honey, 
41 handlers/packers, and 614 importers of honey and honey products. 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 million or less. Using these criteria, most 
producers and handlers/packers would be considered small businesses, 
while most importers would not.
    National Agricultural Statistics Service (NASS) data report that 
U.S. production of honey, from producers with five or more colonies, 
totaled 144 million pounds in 2009, representing a decrease of 14 
percent from 2004. The

[[Page 252]]

number of U.S. bee colonies producing honey in 2009 was 2.4 million 
(based on beekeepers who manage five or more colonies).
    The average annual yield per colony was 58.5 pounds of honey. The 
average producer price per pound was $1.44. The 2009 honey crop was 
valued at more than $208.2 million.
    The top six honey producing States in 2009 were North Dakota, South 
Dakota, California, Florida, Minnesota, and Montana. NASS reported the 
value of honey sold from these six States in 2009 was $144,843 and the 
volume produced was 101,697,000 pounds.
    Based on data from Department of Commerce, U.S. Census Bureau, 
Foreign Trade Statistics, seventeen countries produced more than 98 
percent of the honey imported into the U.S. In 2009, six of these 
countries produced over 80 percent of the total honey imported into the 
United States. These countries and their share of the imports are 
Brazil (19 percent), Vietnam (18 percent), India (14 percent), 
Argentina (11 percent), Malaysia (9 percent), and Canada (9 percent). 
Imports accounted for 62 percent of U.S. consumption in 2006, an 
increase of 18 percent, up from 51 percent since 2002. The United 
States is one of the world's largest markets for industrial honey. This 
sector accounts for approximately 45 percent of total domestic 
consumption. The primary users of industrial honey are bakery, health 
food, and cereal manufacturers. Other users such as the food service 
industry account for another 10 percent of domestic consumption. 
Individual consumers who purchase small amounts of honey for personal 
use also significantly contribute to overall consumption in the United 
States.
    USDA grades for honey are not mandatory, but beekeepers, handlers/
packers labeling honey as a particular grade are responsible for the 
accuracy of the label. The U.S. Standards for Grades of Honey are 
located on the AMS Web site at https://www.ams.usda.gov/processedinspection.
    The Act authorizes the inspection, certification, and 
identification of class, quality, quantity, and condition of 
agricultural commodities, under the Act, no person is required to use 
the services.
    The 2008 Farm Bill amended the Act to require that packaged honey 
bearing a grade mark or statement, continuous inspection mark or 
statement, sampling mark or statement, or any combination of marks or 
statements of the Department of Agriculture, must also bear the one or 
more names of the countries of origin of the lot or container of honey 
legibly and permanently in close proximity to and at least in 
comparable size to the mark or statement.
    Under the existing regulations governing the inspection and grading 
of processed fruits, vegetables, and miscellaneous products, section 
52.53 provides for the use of approved identification marks and 
paragraph (h) describes or lists prohibited uses of approved 
identification. Section 52.53(h) provides that, except for officially 
inspected or otherwise approved products, no label or advertising 
material used upon, or in conjunction with, a processed product shall 
bear a brand name, trademark, product name, company name, or any other 
descriptive material as it relates or alludes to any official U.S. 
Department of Agriculture certificate of quality or loading, grade 
mark, grade statement (except honey and maple syrup which may bear such 
grade mark or statement), continuous inspection mark, continuous 
inspection statement, sampling mark or sampling statement or 
combinations of one or more of the above. Therefore, honey and maple 
syrup may bear official USDA grade marks without official inspection.
    This rule applies to domestic as well as foreign sources of honey. 
Under this rule, any honey that has an official U.S. grade mark must 
include in its label the country of origin in letters at least the same 
size and in close proximity to the grade mark. For example, if foreign 
or domestic honey were labeled U.S. Grade A, then it would have to 
identify its country or countries of origin. Conversely, if the honey 
is not officially grade labeled, the country of origin labeling is not 
necessary whether the honey is domestic or foreign. This discussion has 
been clarified from that which appeared in the interim rule.
    AMS believes that under current industry labeling practices, 
packages of honey that include the official U.S. grade marks, in most 
cases, also include country of origin labeling. However, country of 
origin information usually is located on the back of the package. The 
Act requires that all honey bearing any official USDA mark or statement 
also bear legibly and permanently in close proximity (such as on the 
same side(s) or surface(s)) to the certificate, mark, or statement, and 
in at least a comparable size, the country or countries of origin of 
the lot or container of honey, preceded by the words ``Product of'' or 
other words of similar meaning.
    Because honey does not require official inspection in order to 
carry official USDA grade marks and since there are no existing 
programs that require the official inspection and certification of 
honey, AMS believes that there will be little, if any, impact on the 
honey industry or small producers, except if a handler or importer is 
carrying official marks on their labels beyond the date that this rule 
is effective and has not reconfigured their labels. AMS believes that 
product labeling changes normally involve reconfiguring labeling 
without substantial costs and without having to purchase new equipment.
    With regard to alternatives to this rule, section 10402 of the 2008 
Farm Bill amends the Act, which requires AMS to amend its regulations.
    Enforcement will be handled by AMS if it receives complaints. All 
complaints will be turned over to our Compliance and Analysis Program 
(Compliance) who will investigate the alleged violation. Compliance 
would then determine the validity of the complaint, and appropriate 
action would be taken.
    The Agency has identified some Federal rules that may conceivably 
be viewed to duplicate or overlap with this rule. Under pre-existing 
Federal laws and regulations, country of origin labeling is required by 
the Tariff Act of 1930, 19 U.S.C. 1304(a) and CBP Regulations, 19 CFR 
part 134.
    Such requirements are enforced by the U.S. Customs and Border 
protection (CPB) as authorized by the Tariff Act of 1930 and CBP 
regulations (19 U.S.C. 1304(a) and 19 CFR part 134. This law requires 
that every imported item must be conspicuously and indelibly marked in 
English to indicate to the ultimate purchaser its country of origin.

Summary of Comments

    AMS received six comments; four commenters were in favor and two 
opposed the rule.
    Three commenters requested that a requirement for country of origin 
and country of process be placed on all containers of honey. The 
statute provides only for identification of country of origin as 
previously discussed, when packages of honey bear official USDA marks 
or statements. Accordingly, these comments were not adopted.
    One commenter stated that COOL should be required for all other bee 
products intended to be ingested (including bee pollen, royal jelly, 
etc.), that are offered for sale in the U.S. including any containers 
that have been repackaged from bulk containers shipped to or processed 
in the U.S. However, the country of origin amendment to the 1946 Act is 
only applicable to packaged honey. Nonetheless, country of origin 
labeling is required for imported products under

[[Page 253]]

the Tariff Act of 1930 and CBP regulations. Accordingly, these comments 
were not adopted.
    One commenter requested that added ingredients be included on the 
labels. The labeling of added ingredients was not included in the 2008 
Farm Bill amendment. The U.S. Food and Drug Administration regulates 
the labeling of food products. (See 21 CFR 101.4.) Accordingly this 
comment was not adopted.
    One commenter requested that additional time be granted to allow 
domestic packers to exhaust current inventories of labels. The 
commenter stated that packers order labels in large quantities to 
effect cost savings and estimated that many domestic packers will need 
at least one year to use up current supplies and that an additional six 
months would be required for this stock to be sold from retailers' 
shelves. The new rule also affects packers of domestic honey, who are 
now required to include country of origin on their labels; formerly, 
only imported product required a COOL declaration.
    As stated in the interim rule, the Department provided a 90-day 
period for packers to exhaust current inventories of labels. The 
Department believes this is a reasonable amount of time to allow 
packaged honey bearing any USDA mark or statement already in the chain 
of commerce to clear the system and allow the honey industry time to 
reconfigure labels as appropriate. Enforcement will be handled by AMS 
if it receives complaints. All complaints will be turned over to the 
AMS Compliance and Analysis Program (Compliance) who will investigate 
the alleged violation. Compliance will then determine the validity of 
the complaint and appropriate action to be taken.
    One commenter asked if the country of origin can be abbreviated on 
the label. AMS considers generic abbreviations as appropriate if they 
comply with CBP requirements.
    AMS has reviewed this rule pursuant to the Paperwork Reduction Act 
(44 U.S.C. 3501-3520), and has determined that there are no additional 
information collection requirements imposed by this rule.

List of Subjects in 7 CFR Part 52

    Food grades and standards, Food labeling, Honey, Miscellaneous 
products, Debarment of services, Reporting and recordkeeping 
requirements, Approved identification, Country of origin labeling, and 
Prohibited uses of approved identification.

0
For the reasons set forth in the preamble, 7 CFR part 52 is amended as 
follows:

PART 52--PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS 
THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 7 U.S.C. 1621-1627.


0
2. Section 52.54 is revised to read as follows:


Sec.  52.54  Debarment of services.

    (a) The following acts or practices, or the causing thereof, may be 
deemed sufficient cause for the debarment, by the Administrator, of any 
person, including any agents, officers, subsidiaries, or affiliates of 
such person, from any or all benefits of the Act for a specified 
period. The Rules of Practice Governing Formal Adjudicatory Proceedings 
Instituted by the Secretary Under Various Statutes set forth in 
Sec. Sec.  1.130 through 1.151 of this title and the Supplemental Rules 
of Practice in part 50 of this chapter shall be applicable to such 
debarment action.
    (1) Fraud or misrepresentation. Any misrepresentation or deceptive 
or fraudulent practice or act found to be made or committed in 
connection with:
    (i) The making or filing of an application for any inspection 
service;
    (ii) The submission of samples for inspection;
    (iii) The use of any inspection report or any inspection 
certificate, or appeal inspection certificate issued under the 
regulations in this part;
    (iv) The use of the words ``Packed under continuous inspection of 
the U.S. Department of Agriculture,'' any legend signifying that the 
product has been officially inspected, any statement of grade or words 
of similar import in the labeling or advertising of any processed 
product;
    (v) The use of a facsimile form which simulates in whole or in part 
any official U.S. certificate for the purpose of purporting to evidence 
the U.S. grade of any processed product.
    (2) Willful violation of the regulations in this subpart. Willful 
violation of the provisions of this part of the Act.
    (i) Country of origin labeling for packed honey. The use of a label 
or advertising material on, or in conjunction with, packaged honey that 
bears any official certificate of quality, grade mark or statement, 
continuous inspection mark or statement, sampling mark or statement, or 
any combination of the certificates, marks, or statements of the 
Department of Agriculture is hereby prohibited unless there appears 
legibly and permanently in close proximity (such as on the same side(s) 
or surface(s)) to the certificate, mark, or statement, and in at least 
a comparable size, the one or more names of the one or more countries 
of origin of the lot or container of honey, preceded by the words 
`Product of' or other words of similar meaning.
    (A) A violation of the requirements of this section may be deemed 
by the Secretary to be sufficient cause for debarment from the benefits 
of the regulations governing inspection and certification only with 
respect to honey.
    (3) Interfering with an inspector, inspector's aid, or licensed 
sampler. Any interference with, obstruction of, or attempted 
interference with, or attempted obstruction of any inspector, 
inspector's aide, or licensed sampler in the performance of his duties 
by intimidation, threat, assault, bribery, or any other means--real or 
imagined.

    Dated: December 22, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-33137 Filed 1-3-11; 8:45 am]
BILLING CODE 3410-02-P