[Congressional Bills 103th Congress]
[From the U.S. Government Printing Office]
[H.R. 3515 Introduced in House (IH)]
103d CONGRESS
1st Session
H. R. 3515
To amend the Egg Research and Consumer Information Act, the Watermelon
Research and Promotion Act, and the Lime Research, Promotion, and
Consumer Information Act of 1990 to revise the operation of these Acts
and to authorize the establishment of a fresh cut flowers and fresh cut
greens promotion and consumer information program for the benefit of
the floricultural industry, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 16, 1993
Mr. de la Garza (for himself, Mr. Stenholm, Mr. Roberts, Mr. Lewis of
Florida, Mr. Boehner, Mr. Holden, and Mr. English of Oklahoma)
introduced the following bill; which was referred to the Committee on
Agriculture
_______________________________________________________________________
A BILL
To amend the Egg Research and Consumer Information Act, the Watermelon
Research and Promotion Act, and the Lime Research, Promotion, and
Consumer Information Act of 1990 to revise the operation of these Acts
and to authorize the establishment of a fresh cut flowers and fresh cut
greens promotion and consumer information program for the benefit of
the floricultural industry, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Omnibus Agricultural Research and
Promotion Improvement Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--EGG RESEARCH AND CONSUMER INFORMATION
Sec. 101. Short title.
Sec. 102. Rate of assessment.
Sec. 103. Exempted egg producers.
TITLE II--WATERMELON RESEARCH AND PROMOTION
Sec. 201. Short title.
Sec. 202. Change to majority vote in referendum procedures.
Sec. 203. Expansion of watermelon plans to entire United States.
Sec. 204. Clarification of differences between producers and handlers.
Sec. 205. Clarification of collection of assessments by the Board.
Sec. 206. Changes to assessment rate not subject to formal rulemaking.
Sec. 207. Elimination of watermelon assessment refund.
Sec. 208. Equitable treatment of watermelon plans.
Sec. 209. Separate consideration of watermelon plan amendments.
TITLE III--FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND
INFORMATION
Sec. 301. Short title.
Sec. 302. Findings and declaration of policy.
Sec. 303. Definitions.
Sec. 304. Issuance of orders.
Sec. 305. Required terms in orders.
Sec. 306. Assessments.
Sec. 307. Required determinations.
Sec. 308. Referenda.
Sec. 309. Petition and review.
Sec. 310. Enforcement.
Sec. 311. Investigations and power to subpoena.
Sec. 312. Confidentiality.
Sec. 313. Authority for Secretary to suspend or terminate order.
Sec. 314. Construction.
Sec. 315. Regulations.
Sec. 316. Authorization of appropriations.
Sec. 317. Separability.
TITLE IV--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
Sec. 401. Short title.
Sec. 402. Findings and purpose.
Sec. 403. Definition of lime.
Sec. 404. Required terms in orders.
Sec. 405. Initial referendum.
TITLE I--EGG RESEARCH AND CONSUMER INFORMATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Egg Research and Consumer
Information Improvement Act''.
SEC. 102. RATE OF ASSESSMENT.
(a) Assessment Terms and Conditions in Orders.--Section 8(e) of the
Egg Research and Consumer Information Act (7 U.S.C. 2707(e)) is
amended--
(1) by designating the first and second sentences as
paragraph (1);
(2) by designating the fifth and sixth sentences as
paragraph (3);
(3) by striking the third and fourth sentences and
inserting the following new paragraph:
``(2)(A) The rate of assessment shall be prescribed by the order,
except that the rate of assessment may not exceed 30 cents per case of
commercial eggs or the equivalent thereof.
``(B) The Secretary may amend the order to increase the rate of
assessment (subject to the limitation in subparagraph (A)) only if the
increase is recommended by the Egg Board and approved by egg producers
in a referendum conducted under section 9(b).
``(C) The Secretary may amend the order to decrease the rate of
assessment only if the decrease is recommended by the Egg Board. A
decrease in the rate of assessment shall take effect only after the
Secretary provides public notice and an opportunity for comment in
accordance with section 553 of title 5, United States Code. Sections
556 and 557 of such title shall not apply with respect to decreasing
the rate of assessment.''; and
(4) by conforming the margins of paragraphs (1) and (3) (as
so designated) to the margin of paragraph (2).
(b) Referendum Requirements.--Section 9 of the Egg Research and
Consumer Information Act (7 U.S.C. 2708) is amended--
(1) by designating the first two sentences as subsection
(a);
(2) by designating the last sentence as subsection (c);
(3) by inserting after subsection (a) (as so designated)
the following new subsection:
``(b)(1) Whenever the Egg Board determines, based on scientific
studies, marketing analysis, or other similar competent evidence, that
an increase in assessment rate is needed to ensure that assessments
under the order are set at an appropriate level to effectuate the
declared policy of this Act, the Egg Board may request that the
Secretary conduct a referendum, as provided in paragraph (2).
``(2) When requested by the Egg Board under paragraph (1) or (3),
the Secretary shall conduct a referendum among egg producers not exempt
hereunder who, during a representative period determined by the
Secretary, have been engaged in the production of commercial eggs, for
the purpose of ascertaining whether such producers approve the increase
in the assessment rate proposed by the Egg Board. The increase in the
assessment rate shall take effect if approved or favored by not less
than two-thirds of the producers voting in such referendum, or by a
majority of the producers voting in such referendum if such majority
produced not less than two-thirds of all the commercial eggs produced
by those voting during a representative period defined by the
Secretary.
``(3) With respect to the order in effect on the date of the
enactment of this subsection, the Egg Board shall undertake to
determine under paragraph (1), as soon as practicable after such date
of enactment, whether to request that the Secretary conduct a
referendum under paragraph (2). If the Egg Board makes such a request
on competent evidence, as provided in paragraph (1), the Secretary
shall conduct such referendum as soon as practicable, but not later
than 120 days after receipt of the request from the Egg Board.
``(4) Notwithstanding any other provision of this Act, whenever an
increase in the assessment rate and the authority for additional
increases is approved by producers in a referendum under this
subsection, the Secretary shall amend the order as appropriate to
reflect such vote of producers. The amendment to the order shall become
effective on the date it is issued.''; and
(4) by conforming the margins of subsections (a) and (c)
(as so designated) to the margin of subsection (b).
SEC. 103. EXEMPTED EGG PRODUCERS.
(a) Increase in Exemption Amount.--Section 12(a)(1) of the Egg
Research and Consumer Information Act (7 U.S.C. 2711(a)(1)) is amended
by striking ``30,000 laying hens'' and inserting ``75,000 laying
hens''.
(b) Issuance of Amendment to Order.--To implement the amendment
made by subsection (a) to the Egg Research and Consumer Information
Act, the Secretary of Agriculture shall issue an amendment to the egg
promotion and research order issued under such Act. The amendment to
the order shall be issued after public notice and opportunity for
comment in accordance with section 553 of title 5, United States Code.
Sections 556 and 557 of such title shall not apply with respect to the
amendment to the order. The Secretary shall issue the proposed
amendment to the order not later than 30 days after the date of the
enactment of this title.
(c) Effective Date.--The amendment to the egg promotion and
research order required by subsection (b) shall become effective not
later than 120 days after the date of the enactment of this Act. The
amendment shall not be subject to a referendum under the Egg Research
and Consumer Information Act.
TITLE II--WATERMELON RESEARCH AND PROMOTION
SEC. 201. SHORT TITLE.
(a) Short Title.--This title may be cited as the ``Watermelon
Research and Promotion Improvement Act''.
SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM PROCEDURES.
Section 1653 of the Watermelon Research and Promotion Act (7 U.S.C.
4912) is amended--
(1) by inserting ``(a)'' after ``Sec. 1653.'';
(2) by striking the third sentence; and
(3) inserting at the end the following new subsection:
``(b) A plan issued under this subtitle shall not take effect
unless the Secretary determines that the issuance of the plan is
approved or favored by a majority of the producers and handlers (and
importers if subject to the plan) voting in the referendum.''.
SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE UNITED STATES.
(a) Definitions.--Section 1643 of the Watermelon Research and
Promotion Act (7 U.S.C. 4902(3)) is amended--
(1) in paragraph (3), by striking ``the forty-eight
contiguous States of''; and
(2) by adding at the end the following new paragraph:
``(10) The term `United States' means each of the several
States and the District of Columbia.''.
(b) Issuance of Plans.--The last sentence of section 1644 of such
Act (7 U.S.C. 4903) is amended by striking ``the forty-eight contiguous
States of''.
SEC. 204. CLARIFICATION OF DIFFERENCES BETWEEN PRODUCERS AND HANDLERS.
Section 1647(c) of the Watermelon Research and Promotion Act (7
U.S.C. 4906(c)) is amended by adding at the end the following:
``(3) If a producer purchases watermelons from other producers, in
a combined total volume that is equal to 25 percent or more of the
producer's own production, the producer shall be eligible to serve on
the Board only as a representative of handlers and not as a
representative of producers. In addition, if the combined total volume
of watermelons handled by a producer from the producer's own production
and purchases from other producers' production is more than 50 percent
of the producer's own production, the producer shall be eligible to
serve on the Board only as a representative of handlers and not as a
representative of producers.''.
SEC. 205. CLARIFICATION OF COLLECTION OF ASSESSMENTS BY THE BOARD.
Section 1647 of the Watermelon Research and Promotion Act (7 U.S.C.
4906) is amended--
(1) in subsection (f), by striking ``collection of the
assessments by the Board'' and inserting ``payment of the
assessments to the Board.''; and
(2) in paragraphs (1) and (3) of subsection (g), by
striking ``collected'' and inserting ``received''.
SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT TO FORMAL RULEMAKING.
Section 1647(f) of the Watermelon Research and Promotion Act (7
U.S.C. 4906(f)), as amended by section 205(1), is further amended by
adding at the end the following new sentences: ``In fixing or changing
the rate of assessment pursuant to the plan, the Secretary shall comply
with the notice and comment procedures established under section 553 of
title 5, United States Code. Sections 556 and 557 of such title shall
not apply with respect to fixing or changing the rate of assessment.''.
SEC. 207. ELIMINATION OF WATERMELON ASSESSMENT REFUND.
Section 1647(h) of the Watermelon Research and Promotion Act (7
U.S.C. 4906(h)) is amended--
(1) by inserting ``(1) Except as provided in paragraph
(2)'' after ``(h)''; and
(2) by adding at the end the following new paragraphs:
``(2) If approved in the referendum required by section 1655(b)
relating to the elimination of the assessment refund under paragraph
(1), the Secretary shall amend the plan which is in effect on the day
before the date of the enactment of the Watermelon Research and
Promotion Improvement Act to eliminate such refund provision.
``(3) Notwithstanding paragraph (2), if importers are subject to
the plan, the plan shall provide that importers of less than 75,000
pounds of watermelons per year shall be entitled to apply for a refund
of the equivalent of the rate of assessment paid by domestic producers.
The Secretary may adjust the weight exemption contained in this
paragraph upon the recommendation of the Board after an opportunity for
notice and comment to reflect significant changes in the 5-year average
yield per acre of watermelons in the United States.''.
SEC. 208. EQUITABLE TREATMENT OF WATERMELON PLANS.
(a) Definitions.--Section 1643 of the Watermelon Research and
Promotion Act (7 U.S.C. 4902), as amended by section 203(a), is further
amended--
(1) in paragraph (3), by striking the semicolon at the end
and inserting the following: ``or imported into the United
States.'';
(2) by redesignating paragraphs (6) and (7) as paragraphs
(8) and (9), respectively; and
(3) by inserting after paragraph (5) the following new
paragraphs:
``(6) The term `importer' means any person who imports
watermelons into the United States.
``(7) The term `plan' means an order issued by the
Secretary under this subtitle.''.
(b) Issuance of Plans.--Section 1644 of such Act (7 U.S.C. 4903),
as amended by section 203(b), is further amended--
(1) in the first sentence, by striking ``and handlers'' and
inserting ``, handlers, and importers'';
(2) by striking the second sentence; and
(3) in the last sentence, by inserting ``or imported into
the United States'' before the period.
(c) Notice and Hearings.--Section 1645(a) of such Act (7 U.S.C.
4904(a)) is amended--
(1) in the first sentence, by striking ``and handlers'' and
inserting ``, handlers, and importers''; and
(2) in the last sentence, by striking ``or handlers'' and
inserting ``, handlers, or importers''.
(d) Membership of Board.--Section 1647(c) of such Act (7 U.S.C.
4906(c)), as amended by section 204, is further amended--
(1) by inserting ``(1)'' after ``(c)'';
(2) in the second sentence, by striking ``producer and
handler members'' and inserting ``other members''; and
(3) by adding at the end the following new paragraph:
``(2) If importers are subject to the plan, the Board shall also
include one or more representatives of importers who shall be appointed
by the Secretary from nominations submitted by importers in such manner
as may be prescribed by the Secretary. Importer representation on the
Board shall be proportionate to the percentage of assessments paid by
importers to the Board, except that there shall always be at least one
representative of importers on the Board. If importers are subject to
the plan and fail to select nominees for appointment to the Board, the
Secretary may appoint any importers as the representatives of
importers. Every 5 years, the Secretary shall evaluate the average
annual percentage of assessments paid by importers during the most
recent 3-year period and adjust, to the extent possible, the number of
importer representatives on the Board.''.
(e) Assessments.--Section 1647(g) of such Act (7 U.S.C. 4906(g)),
as amended by section 205(2), is further amended--
(1) in paragraph (4)--
(A) by striking ``(4) assessments'' and inserting
``(4) Assessments''; and
(B) by inserting ``in the case of producers and
handlers'' after ``such assessments''; and
(2) by adding at the end the following new paragraph:
``(5) If importers are subject to the plan, an assessment
shall also be made on watermelons imported into the United
States by such importers. The rate of assessment for importers
(if subject to the plan) shall be equal to the combined rate
for producers and handlers.''.
(f) Refunds.--Section 1647(h) of such Act (7 U.S.C. 4906(h)), as
amended by section 207, is further amended--
(1) by inserting after ``or handler'' the first two places
it appears the following: ``(or importer if subject to the
plan)''; and
(2) by striking ``or handler'' the last place it appears
and inserting ``, handler, or importer''.
(g) Assessment Procedures.--Section 1649 of such Act (7 U.S.C.
4908) is amended--
(1) in subsection (a)--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new
paragraph:
``(2) If importers are subject to the plan, each importer required
to pay assessments under the plan shall be responsible for payment to
the Board, as it may direct, of the assessment. The assessment on
imported watermelons shall be equal to the combined rate for domestic
producers and handlers and shall be paid by the importer to the Board
at the time of the entry of the watermelons into the United States.
Each such importer shall maintain a separate record including the total
quantity of watermelons imported into the United States that are
included under the terms of the plan, as well as those that are exempt
under such plan, and shall indicate such other information as may be
prescribed by the Board. No more than one assessment shall be made on
any imported watermelons.'';
(2) in subsection (b), by inserting ``and importers'' after
``Handlers''; and
(3) in subsection (c)(1), by inserting ``or importers''
after ``handlers''.
(h) Investigations.--Section 1652(a) of such Act (7 U.S.C. 4911(a))
is amended--
(1) in the first sentence, by striking ``a handler or any
other person'' and by inserting ``a person'';
(2) in the fourth sentence, by inserting ``(or an importer
if subject to the plan)'' after ``a handler''; and
(3) in the last sentence, by striking ``the handler or
other person'' and inserting ``the person''.
(i) Referendum.--Section 1653 of such Act (7 U.S.C. 4912), as
amended by section 202, is further amended--
(1) in the first sentence--
(A) by striking ``and handlers'' both places it
appears and inserting ``, handlers, and importers'';
and
(B) by striking ``or handling'' and inserting ``,
handling, or importing'';
(2) by striking the second sentence; and
(3) in the sentence beginning ``The ballots''--
(A) by striking ``or handler'' and inserting ``,
handler, or importer''; and
(B) by striking ``or handled'' and inserting ``,
handled, or imported''.
(j) Termination of Plans.--Section 1654(b) of such Act (7 U.S.C.
4913(b)) is amended--
(1) in the first sentence--
(A) by striking ``10 per centum or more'' and
inserting ``at least 10 percent of the combined
total''; and
(B) by striking ``and handlers'' both places it
appears and inserting ``, handlers, and importers'';
(2) in the second sentence--
(A) by striking ``or handle'' and inserting ``,
handle, or import'';
(B) by striking ``50 per centum'' and inserting
``50 percent of the combined total''; and
(C) by striking ``or handled by the handlers,'' and
inserting ``, handled by the handlers, and imported by
the importers''; and
(3) by striking the last sentence.
(k) Conforming and Technical Amendments.--Such Act is further
amended--
(1) in section 1642(a)(5) (7 U.S.C. 4901(a)(5)), by
striking ``and handling'' and inserting ``handling, and
importing'';
(2) in the first sentence of section 1642(b) (7 U.S.C.
4901(b))--
(A) by inserting ``, or imported into the United
States,'' after ``harvested in the United States''; and
(B) by striking ``produced in the United States'';
(3) in section 1643 (7 U.S.C. 4902), as amended by
subsection (a) and section 203--
(A) by striking ``subtitle--'' and inserting
``subtitle:'';
(B) in paragraphs (1), (2), (3), (4), and (5), by
striking ``the term'' and inserting ``The term'';
(C) in paragraphs (1), (2), (4), and (5), by
striking the semicolon at the end and inserting a
period;
(D) in paragraph (8), as redesignated by subsection
(a)(2)--
(i) by striking ``the term'' and inserting
``The term''; and
(ii) by striking ``; and'' and inserting a
period; and
(E) in paragraph (9), as redesignated by subsection
(a)(2)--
(i) by striking ``the term'' and inserting
``The term''; and
(ii) by striking ``1644'' and inserting
``1647''; and
(4) in section 1647(g) (7 U.S.C. 4906(g)), as amended by
subsection (e) and section 205(2)--
(A) by striking ``that--'' and inserting ``the
following:'';
(B) in paragraph (1)--
(i) by striking ``(1) funds'' and inserting
``(1) Funds''; and
(ii) by striking the semicolon at the end
and inserting a period;
(C) in paragraph (2)--
(i) by striking ``(2) no'' and inserting
``(2) No''; and
(ii) by striking the semicolon at the end
and inserting a period; and
(D) in paragraph (3)--
(i) by striking ``(3) no'' and inserting
``(3) No''; and
(ii) by striking ``; and'' and inserting a
period.
SEC. 209. SEPARATE CONSIDERATION OF WATERMELON PLAN AMENDMENTS.
Section 1655 of the Watermelon Research and Promotion Act (7 U.S.C.
4914) is amended--
(1) by inserting ``(a)'' before ``The provisions''; and
(2) by adding at the end the following new subsections:
``(b) The amendments described in subsection (c) that are required
to be made by the Secretary to a plan as a result of the amendments
made by the Watermelon Research and Promotion Improvement Act shall be
subject to separate line item voting and approval in a referendum
conducted pursuant to section 1653 before the Secretary alters the plan
as in effect on the day before the date of the enactment of such Act.
``(c) The amendments referred to in subsection (b) are those
amendments required under--
``(1) section 207 of the Watermelon Research and Promotion
Improvement Act relating to the elimination of the assessment
refund; and
``(2) section 208 of such Act relating to subjecting
importers to the terms and conditions of the plan.
``(d) When conducting the referendum relating to subjecting
importers to the terms and conditions of a plan, the Secretary shall
include as eligible voters in the referendum producers, handlers, and
importers who would be subject to the plan if the amendments are
approved.''.
TITLE III--FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND
INFORMATION
SEC. 301. SHORT TITLE.
This title may be cited as the ``Fresh Cut Flowers and Fresh Cut
Greens Promotion and Information Act''.
SEC. 302. FINDINGS AND DECLARATION OF POLICY.
(a) Findings.--Congress finds the following:
(1) Fresh cut flowers and fresh cut greens are an integral
part of life in the United States, are enjoyed by millions of
persons every year for a multitude of special purposes
(especially important personal events), and contribute a
natural and beautiful element to the human environment.
(2) Cut flowers and cut greens are produced by many
individual producers throughout the United States as well as in
other countries, and are handled and marketed by thousands of
small-sized and medium-sized businesses, and such production,
handling, and marketing constitute a key segment of the United
States horticultural industry and thus a significant part of
the overall agricultural economy of the United States.
(3) Handlers play a vital role in the marketing of cut
flowers and cut greens in that they purchase most of the cut
flowers and cut greens marketed by producers, prepare the cut
flowers and cut greens for retail consumption, serve as
intermediary between source of product and retailer, otherwise
facilitate the entry of cut flowers and cut greens into the
current of domestic commerce, and add efficiencies to the
market process that ensure the availability of a much greater
variety of product to retailers and consumers.
(4) It is widely recognized that it is in the public
interest and important to the agricultural economy of the
United States to provide an adequate, steady supply of cut
flowers and cut greens at reasonable prices to consumers in the
United States.
(5) Cut flowers and cut greens move in interstate and
foreign commerce, and cut flowers and cut greens that do not
move in such channels of commerce, but only in intrastate
commerce, directly affect interstate commerce in cut flowers
and cut greens.
(6) The maintenance and expansion of existing markets and
the development of new or improved markets or uses for cut
flowers and cut greens are needed to preserve and strengthen
the economic viability of the domestic cut flowers and cut
greens industry for the benefit of producers, handlers,
retailers, and the entire floral industry.
(7) Generic programs of promotion and consumer information
can be effective in maintaining and developing markets for cut
flowers and cut greens, and have the advantage of equally
enhancing the market position for all cut flowers and cut
greens marketed.
(8) Because cut flowers and cut greens producers are
primarily agriculture-oriented rather than promotion-oriented,
and because the floral marketing industry within the United
States is comprised mainly of small-sized and medium-sized
businesses, the development and implementation of an adequate
and coordinated national program of generic promotion and
consumer information necessary for the maintenance of existing
markets and the development of new markets for cut flowers and
cut greens have been prevented.
(9) There exist established State and commodity-specific
producer-funded programs of promotion and research that are
valuable efforts to expand markets for domestic producers of
cut flowers and cut greens and that will be able to take
advantage of the promotion and consumer information program
authorized by this title to enhance their market development
efforts for domestic producers.
(10) An effective and coordinated method for ensuring
cooperative and collective action in providing for and
financing a nationwide program of generic promotion and
consumer information is needed to ensure that the cut flowers
and cut greens industry will be able to provide, obtain, and
implement programs of promotion and consumer information
necessary to maintain, expand, and develop markets for these
articles.
(11) The most efficient method of financing a nationwide
program of generic promotion and consumer information regarding
cut flowers and cut greens is to assess cut flowers and cut
greens at the point they are sold by handlers into the retail
market.
(b) Policy and Purpose.--It is declared to be the policy of
Congress that it is in the public interest, and it is the purpose of
this title, to authorize the establishment pursuant to this title of an
orderly procedure for the development and financing (through an
adequate assessment on cut flowers and cut greens sold by handlers to
retailers and related entities in the United States) of an effective
and coordinated program of generic promotion, consumer information, and
related research designed to strengthen the cut flowers and cut greens
industry's position in the marketplace and to maintain, develop, and
expand markets for cut flowers and cut greens.
SEC. 303. DEFINITIONS.
For purposes of this title:
(1) Consumer information.--The term ``consumer
information'' means any action or program to provide
information to consumers and other persons on appropriate uses
under varied circumstances, and on the care and handling, of
cut flowers or cut greens.
(2) Cut flowers and cut greens.--
(A) In general.--The term ``cut flowers'' includes
all flowers cut from growing plants and used as fresh-
cut flowers, produced either under cover or in field
operations. The term ``cut greens'' includes all
cultivated or noncultivated decorative foliage cut from
growing plants and used as fresh-cut decorative foliage
(except Christmas trees) produced either under cover or
in field operations. Neither term includes foliage
plants, floral supplies, or flowering plants.
(B) Substantial portion.--In any case in which a
handler packages cut flowers or cut greens with hard
goods in an article, such as a gift basket or similar
presentation, for sale to retailers, the PromoFlor
Council may determine, under procedures set out in the
order, that the cut flowers or cut greens in the
article do not constitute a substantial portion of the
value of the article and that, based on such
determination, the article shall not be treated as an
article of cut flowers or cut greens subject to
assessment under the order.
(3) Gross sales price.--The term ``gross sales price''
means the total amount of the transaction in a sale of cut
flowers or cut greens from a handler to a retailer.
(4) Handler definitions.--
(A) Qualified handler.--
(i) In general.--The term ``qualified
handler'' means a person (including a
cooperative) operating in the cut flowers or
cut greens marketing system that sells domestic
or imported cut flowers or cut greens to
retailers and exempt handlers and whose annual
sales of cut flowers and cut greens to
retailers and exempt handlers are $750,000 or
more.
(ii) Inclusions.--The term ``qualified
handler'' includes--
(I) bouquet manufacturers (subject
to the ``substantial portion'' rule
under paragraph (2)(B));
(II) auction houses that clear
sales of cut flowers and cut greens to
retailers and exempt handlers through a
central clearinghouse; and
(III) any distribution center that
is owned or controlled by a retailer if
the predominant retail business
activity of the retailer is floral
sales. For purposes of determining
sales of cut flowers and cut greens to
retailers from any such distribution
center, each non-sale transfer to a
retailer shall be treated as a sale in
an amount calculated as provided in
subparagraph (C)(ii).
(iii) Exclusions.--The term ``qualified
handler'' does not include a person who merely
physically transports or delivers cut flowers
or cut greens.
(iv) Rules of construction for direct to
consumer sales.--The term ``qualified handler''
includes an importer that sells directly to
consumers cut flowers or cut greens that it has
imported into the United States and whose sales
of such cut flowers or cut greens (as
calculated under subparagraph (C)), along with
sales of cut flowers and cut greens to
retailers or exempt handlers, annually are
$750,000 or more. The term ``qualified
handler'' also includes a producer that sells
directly to consumers cut flowers or cut greens
that it has produced and whose sales of such
cut flowers or cut greens (as calculated under
subparagraph (C)), along with sales of cut
flowers and cut greens to retailers or exempt
handlers, annually are $750,000 or more. Each
direct sale to consumers by any such qualified
handler shall be treated as a sale to a
retailer or exempt handler in an amount
calculated as provided in clause (ii) or (iii)
of subparagraph (C).
(B) Exempt handler.--The term ``exempt handler''
means a person that would otherwise be considered to be
a qualified handler, except that its annual sales of
cut flowers and cut greens to retailers and other
exempt handlers are less than $750,000.
(C) Annual sales determined.--
(i) In general.--For purposes of
determining the amount of annual sales of cut
flowers and cut greens under subparagraphs (A)
and (B), the amount of a sale shall be
determined on the basis of the gross sales
price of product sold.
(ii) Special rule for distribution
centers.--In the case of a non-sale transfer of
cut flowers or cut greens from a distribution
center, as described in subparagraph
(A)(ii)(III), the amount of the sale shall be--
(I) the price paid by the
distribution center to acquire the cut
flowers or cut greens; plus
(II) an amount determined by
multiplying acquisition price
determined under subclause (I) by a
uniform percentage established by the
order to represent a wholesale
handler's mark-up on a sale to a
retailer.
(iii) Special rule for direct sales by
importers.--In the case a direct sale by an
importer to a consumer, as described in
subparagraph (A)(iv), the amount of the sale
shall be--
(I) the price paid by the importer
to acquire the cut flowers or cut
greens; plus
(II) an amount determined by
multiplying the acquisition price
determined under subclause (I) by a
uniform percentage established by the
order to represent a wholesale
handler's mark-up on a sale to a
retailer.
(iv) Special rule for direct sales by
producers.--In the case of a direct sale by a
producer to a consumer, as described in
subparagraph (A)(iv), the amount of the sale
shall be an amount determined by applying to
the price paid by the consumer a uniform
percentage established by the order to
represent the cost of producing the article and
a wholesale handler's mark-up on a sale to a
retailer.
(D) Reference to other definitions.--For purposes
of this paragraph, the term ``producer'' has the
meaning given the term ``producer that is a qualified
handler'' in section 305(b)(2)(B)(ii)(I), and the term
``importer'' has the meaning given the term ``importer
that is a qualified handler'' in section
305(b)(2)(B)(iii)(I).
(5) Person.--The term ``person'' means any individual,
group of individuals, firm, partnership, corporation, joint
stock company, association, society, cooperative, or other
legal entity.
(6) Promoflor council.--The term ``PromoFlor Council''
means the Fresh Cut Flowers and Fresh Cut Greens Promotion
Council established under section 305(b).
(7) Promotion.--The term ``promotion'' means any action
determined by the Secretary to advance the image, desirability,
or marketability of cut flowers or cut greens, including paid
advertising.
(8) Research.--The term ``research'' means market research
and studies limited to the support of advertising, market
development, and other promotion efforts and consumer
information efforts relating to cut flowers or cut greens,
including educational activities.
(9) Retailer.--The term ``retailer'' means a person (such
as a retail florist, supermarket, mass market retail outlet, or
other end-use seller as described in an order issued under this
title) that sells cut flowers or cut greens to consumers. The
term shall include any distribution center--
(A) owned or controlled by such person, or owned or
controlled cooperatively by a group of such persons, if
the predominant retail business activity of such person
is not floral sales; or
(B) independently owned but operated primarily to
provide food products to retail stores.
An independently owned distribution center covered by
subparagraph (B) that is also an importer or producer of cut
flowers or cut greens shall be subject to the rules of
construction set out in paragraph (4)(A)(iv) and, for such
purposes only, shall be deemed to be the seller of cut flowers
or cut greens directly to the consumer.
(10) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(11) United states; state.--The terms ``United States'' and
``State'' include the fifty States of the United States, the
District of Columbia, and all the territories and possessions
of the United States.
SEC. 304. ISSUANCE OF ORDERS.
(a) In General.--To effectuate the declared policy of section
302(b), the Secretary shall issue an order under this title applicable
to qualified handlers of cut flowers and cut greens. Any such order
shall be national in scope. Not more than one order shall be in effect
under this title at any one time.
(b) Procedures.--
(1) Proposal for an order.--The Secretary may propose the
issuance of an order under this title. In addition, an industry
group that represents a substantial number of the industry
members who are to be assessed under the order, or any other
person that will be affected by this title, may request the
issuance of, and submit a proposal for, such an order.
(2) Publication of proposal.--The Secretary shall publish
the proposed order and give due notice and opportunity for
public comment on the proposed order not later than 60 days
after the earlier of--
(A) the date on which the Secretary receives a
proposal for an order from an industry group or
interested person, as provided in paragraph (1); or
(B) the date on which the Secretary determines to
propose an order.
(3) Issuance of order.--After notice and opportunity for
public comment are provided, the Secretary shall issue the
order, taking into consideration the comments received and
including in the order provisions necessary to ensure that the
order is in conformity with the requirements of this title. The
order shall be issued and become effective not later than 180
days after publication of the proposed order.
(c) Amendments.--From time to time, the Secretary may amend an
order issued under this title. The provisions of this title applicable
to the issuance of an order shall be applicable to amendments to the
order.
SEC. 305. REQUIRED TERMS IN ORDERS.
(a) In General.--Each order issued under this title shall contain
the terms and provisions required by this section, sections 306 and
307, and any other provision of this title.
(b) PromoFlor Council--
(1) Establishment and membership.--
(A) Establishment.--The order shall provide for the
establishment of a Fresh Cut Flowers and Fresh Cut
Greens Promotion Council, consisting of twenty one
members, to administer the order.
(B) Membership.--The order shall provide that
members of the PromoFlor Council shall be participating
qualified handlers representing qualified wholesale
handlers and producers and importers that are qualified
handlers, and a member that represents retailers,
appointed by the Secretary from nominations submitted
by qualified wholesale handlers, producers and
importers that are qualified handlers, and retailers,
as provided in paragraphs (2) and (3).
(2) Distribution of appointments.--
(A) In general.--The order shall provide that the
membership of the PromoFlor Council shall be made up
of--
(i) fourteen members representing qualified
wholesale handlers of domestic or imported cut
flowers and cut greens;
(ii) three members representing producers
that are qualified handlers of cut flowers and
cut greens;
(iii) three members representing importers
that are qualified handlers of cut flowers and
cut greens; and
(iv) one member representing cut flowers
and cut greens retailers.
(B) Meaning of terms.--For purposes of this
subsection:
(i) Qualified wholesale handlers.--The term
``qualified wholesale handler'' means a person
in business as a floral wholesale jobber or
floral supplier and that is subject to
assessments as a qualified handler under the
order. For purposes of this clause, the term
``floral wholesale jobber'' means a person that
conducts a commission or other wholesale
business in buying and selling cut flowers or
cut greens, and the term ``floral supplier''
means a person engaged in acquiring cut flowers
or cut greens to be manufactured into floral
articles or otherwise processed for resale.
(ii) Producer that is a qualified
handler.--The term ``producer that is a
qualified handler'' means an entity that--
(I) is engaged--
(aa) in the domestic
production, for sale in
commerce, of cut flowers or cut
greens and that owns or shares
in the ownership and risk of
loss of the cut flowers or cut
greens; or
(bb) as a first processor
of noncultivated cut greens, in
receiving the cut greens from
the persons that gather them
for handling; and
(II) is subject to assessments as a
qualified handler under the order.
(iii) Importer that is a qualified
handler.--The term ``importer that is a
qualified handler'' means an entity--
(I) whose principal activity is the
importation of cut flowers or cut
greens into the United States (either
directly or as an agent, broker, or
consignee of any person or nation that
produces or handles cut flowers or cut
greens outside the United States for
sale in the United States); and
(II) that is subject to assessments
as a qualified handler under the order.
(C) Distribution of qualified wholesale handler
appointments.--The order shall provide that the
qualified wholesale handler appointments made by the
Secretary to the PromoFlor Council shall take into
account the geographical distribution of cut flowers
and cut greens markets in the United States.
(3) Nomination process.--The order shall provide that--
(A) two nominees be submitted for each appointment
to the PromoFlor Council;
(B) nominations for each appointment of a qualified
wholesale handler, producer that is a qualified
handler, or importer that is a qualified handler to the
PromoFlor Council shall be made by qualified wholesale
handlers, producers that are qualified handlers, or
importers that are qualified handlers, respectively,
through an election process under regulations
prescribed by the Secretary;
(C) nominations for the retailer appointment shall
be made by the American Floral Marketing Council, or
successor entity; and
(D) in any case in which qualified wholesale
handlers, producers that are qualified handlers,
importers that are qualified handlers, or retailers
fail to nominate individuals for an appointment to the
PromoFlor Council, the Secretary may appoint a person
to fill the vacancy on a basis provided in the order or
other regulations of the Secretary.
(4) Alternates.--The order shall provide for the selection
of alternate members of the PromoFlor Council by the Secretary
under procedures specified in the order.
(5) Terms; compensation.--The order shall provide that--
(A) each term of appointment to the PromoFlor
Council shall be for three years, except that, of the
initial appointments, one-third shall be for two-year
terms, one-third for three-year terms, and one-third
for four-year terms;
(B) no member of the PromoFlor Council may serve
more than two consecutive terms of three years, except
that any member serving on initial term of four years
may serve an additional term of three years; and
(C) PromoFlor Council members shall serve without
compensation, but shall be reimbursed for their
expenses incurred in performing their duties as members
of the PromoFlor Council.
(6) Executive committee.--
(A) Establishment.--The order shall authorize the
PromoFlor Council to appoint from among its members an
executive committee of not more than nine members. The
membership of the executive committee initially shall
be composed of four members representing qualified
wholesale handlers, two members representing producers
that are qualified handlers, two members representing
importers that are qualified handlers, and one member
representing retailers; and thereafter appointments to
the executive committee shall be made so as to ensure
that the committee reflects, to the maximum extent
practicable, the membership composition of the
PromoFlor Council as a whole. The initial appointments
to the executive committee each shall be for a term of
two years. Thereafter, appointments to the executive
committee each shall be for a term of one year.
(B) Authority.--The PromoFlor Council may delegate
to the executive committee its authority under the
order to hire and manage staff and conduct the routine
business of the PromoFlor Council within the policies
determined by the PromoFlor Council.
(c) General Responsibilities of the PromoFlor Council.--The order
shall define the general responsibilities of the PromoFlor Council,
which shall include the responsibility--
(1) to administer the order in accordance with its terms
and provisions;
(2) to make rules and regulations to effectuate the terms
and provisions of the order;
(3) to appoint members of the PromoFlor Council to serve on
an executive committee;
(4) to employ such persons as the PromoFlor Council
determines are necessary, and to set the compensation and
define the duties of such persons;
(5) to develop budgets for the implementation of the order
and submit such budgets to the Secretary for approval under
subsection (d);
(6) to propose and develop (or receive and evaluate),
approve, and submit to the Secretary for approval under
subsection (d) plans and projects for cut flowers or cut greens
promotion, consumer information, or related research;
(7) to implement plans and projects for cut flowers or cut
greens promotion, consumer information, or related research, as
provided in subsection (d), or to contract or enter into
agreements with appropriate persons to implement such plans and
projects, as provided in subsection (e), and to pay the costs
of such implementation, or contracts and agreements, with funds
received under the order;
(8) to evaluate on-going and completed plans and projects
for cut flowers or cut greens promotion, consumer information,
or related research;
(9) to receive, investigate, and report to the Secretary
complaints of violations of the order;
(10) to recommend to the Secretary amendments to the order;
and
(11) to furnish the Secretary with such information as the
Secretary may require.
(d) Budgets; Plans and Projects.--
(1) Submission of budgets.--The order shall require the
PromoFlor Council to submit to the Secretary for approval
budgets on a fiscal year basis of its anticipated expenses and
disbursements in the implementation of the order, including
projected costs of cut flowers and cut greens promotion,
consumer information, and related research plans and projects.
(2) Plans or projects.--
(A) Promotion and consumer information.--The order
shall provide--
(i) for the establishment, implementation,
administration, and evaluation of appropriate
plans and projects for advertising, sales
promotion, other promotion, and consumer
information with respect to cut flowers and cut
greens, and for the disbursement of necessary
funds for such purposes;
(ii) that any such plan or project shall be
directed toward increasing the general demand
for cut flowers or cut greens and may make no
reference to a private brand or trade name,
point of origin, or source of supply, except
that these limitations shall not preclude the
PromoFlor Council from offering its plans and
projects for use by commercial parties, under
terms and conditions prescribed by the
PromoFlor Council and approved by the
Secretary; and
(iii) that no such plan or project may make
use of unfair or deceptive acts or practices
with respect to quality or value.
(B) Research.--The order shall provide for the
establishment, implementation, administration, and
evaluation of plans and projects for market development
research, research with respect to the sale,
distribution, marketing, or use of cut flowers or cut
greens, and other research with respect to cut flowers
or cut greens marketing, promotion, or consumer
information; for the dissemination of the information
gained by such activities; and for the disbursement of
necessary funds for such purposes.
(C) Submission to secretary.--The order shall
provide that the PromoFlor Council shall submit to the
Secretary for approval any proposed plan or project for
cut flowers or cut greens promotion, consumer
information, or related research, as described in
subparagraphs (A) and (B).
(3) Approval by secretary required.--No budget, or plan or
project for cut flowers or cut greens promotion, consumer
information, or related research, shall be implemented prior to
its approval by the Secretary.
(4) Investment authority.--The order shall provide the
PromoFlor Council with the authority to invest, pending
disbursement under a plan or project, funds collected through
assessments authorized under this title. Income from invested
funds shall be used only for a purpose for which the invested
funds may be used. The investment of such funds shall be made
only in--
(A) obligations of the United States or any agency
thereof;
(B) general obligations of any State or any
political subdivision thereof;
(C) any interest-bearing account or certificate of
deposit of a bank that is a member of the Federal
Reserve System; or
(D) obligations fully guaranteed as to principal
and interest by the United States.
(e) Contracts and Agreements.--
(1) Promotion, consumer information, and related research
plans and projects.--
(A) In general.--To ensure efficient use of funds,
the order shall provide that the PromoFlor Council,
with the approval of the Secretary, may enter into
contracts or agreements for the implementation of any
plan or project for promotion, consumer information, or
related research with respect to cut flowers or cut
greens, and for the payment of the cost thereof with
funds received by the PromoFlor Council under the
order.
(B) Requirements.--The order shall provide that any
such contract or agreement shall provide that--
(i) the contracting or agreeing party shall
develop and submit to the PromoFlor Council a
plan or project together with a budget or
budgets that shall show estimated costs to be
incurred under the plan or project;
(ii) the plan or project shall become
effective on the approval of the Secretary; and
(iii) the contracting or agreeing party
shall keep accurate records of all of its
transactions, account for funds received and
expended, make periodic reports to the
PromoFlor Council of activities conducted, and
make such other reports as the PromoFlor
Council or the Secretary may require.
(2) Other contracts and agreements.--The order shall
provide that the PromoFlor Council also may enter into
contracts or agreements for administrative services. Any such
contract or agreement shall include provisions comparable to
those provided in clauses (i), (ii), or (iii) of paragraph
(1)(B).
(f) Books and Records of the PromoFlor Council.--
(1) In general.--The order shall require the PromoFlor
Council to--
(A) maintain such books and records (which shall be
available to the Secretary for inspection and audit) as
the Secretary may prescribe;
(B) prepare and submit to the Secretary, from time
to time, such reports as the Secretary may prescribe;
and
(C) account for the receipt and disbursement of all
funds entrusted to the PromoFlor Council.
(2) Audits.--The PromoFlor Council shall cause its books
and records to be audited by an independent auditor at the end
of each fiscal year. A report of each such audit shall be
submitted to the Secretary.
(g) Control of Administrative Costs.--The order shall provide that
the PromoFlor Council shall, as soon as practicable after the order
becomes effective and after consultation with the Department of
Agriculture and other appropriate persons, implement a system of cost
controls based on normally accepted business practices that will ensure
that the PromoFlor Council's annual budgets only include amounts for
administrative expenses that cover the minimum administrative
activities and personnel needed to properly administer and enforce the
order and conduct, supervise, and evaluate plans and projects under the
order.
(h) Prohibition.--The order shall prohibit the use of any funds
received by the PromoFlor Council in any manner for the purpose of
influencing legislation or government action or policy, except that
such funds may be used by the PromoFlor Council for the development and
recommendation to the Secretary of amendments to the order.
(i) Books and Records; Reports.--
(1) In general.--The order shall provide that each
qualified handler shall maintain, and make available for
inspection, such books and records as may be required by the
order and file reports at the time, in the manner, and having
the content prescribed by the order, to the end that
information is made available to the Secretary and the
PromoFlor Council as is appropriate for the administration or
enforcement of this title, the order, or any regulation issued
under this title.
(2) Confidentiality required.--
(A) In general.--Information obtained from books,
records, or reports under the authority provided in
paragraph (1), or from reports required under section
307(c), shall be kept confidential by all officers and
employees of the Department of Agriculture and by the
staff and agents of the PromoFlor Council, and only
such information so obtained as the Secretary considers
relevant may be disclosed to the public by them and
then only in a suit or administrative hearing brought
at the request of the Secretary, or to which the
Secretary or any officer of the United States is a
party, and involving the order.
(B) Rule of construction.--Nothing in subparagraph
(A) may be construed to prohibit--
(i) the issuance of general statements,
based on the reports, of the number of persons
subject to the order or statistical data
collected therefrom, which statements do not
identify the information furnished by any
person; or
(ii) the publication, by direction of the
Secretary, of the name of any person violating
the order, together with a statement of the
particular provisions of the order violated by
the person.
(3) Lists of importers.--The order shall require the staff
of the PromoFlor Council to periodically review lists of
importers of cut flowers and cut greens to determine whether
persons included in the lists are subject to the order. At the
request of the PromoFlor Council, the United States Customs
Service shall provide to the PromoFlor Council lists of
importers of cut flowers and cut greens.
(j) Consultations With Industry Experts.--The order shall provide
that the PromoFlor Council, from time to time, may seek advice from and
consult with experts from the production, import, wholesale, and retail
segments of the cut flowers and cut greens industry to assist in the
development of promotion, consumer information, and related research
plans and projects. For such purpose, the order also shall authorize
the appointment of special committees composed of persons other than
PromoFlor Council members. A committee appointed pursuant to the
authority provided in this subsection may not provide advice or
recommendations to an agency or officer of the Federal Government, but
shall consult directly with the PromoFlor Council.
SEC. 306. ASSESSMENTS.
(a) Authority to Impose Assessment.--
(1) In general.--An order issued under this title shall
provide that each qualified handler shall pay to the PromoFlor
Council, in the manner prescribed by the order, an assessment
on each sale of cut flowers or cut greens (other than a sale
described in subsection (h)) to a retailer or an exempt
handler. This assessment requirement shall also apply to each
transaction described in paragraph (4).
(2) Determination of qualified handler or exempt handler
status.--The order shall contain provisions regarding the
making of determinations to determine status as a qualified
handler or exempt handler that include the rules and
requirements set out in sections 303(4) and 307.
(3) Published lists of handlers.--To facilitate the payment
of assessments under this section, the PromoFlor Council shall
publish lists of qualified handlers required to pay assessments
under the order and exempt handlers.
(4) Covered transactions.--
(A) In general.--The order shall provide that each
non-sale transfer of cut flowers or cut greens to a
retailer from a qualified handler that is a
distribution center, as described in section
303(4)(A)(ii)(III), and each direct sale of cut flowers
or cut greens to a consumer by a qualified handler that
is an importer or producer, as described in section
303(4)(A)(iv), shall be treated as a sale of cut
flowers or cut greens to a retailer subject to
assessments under this subsection.
(B) Determination of sale amount for distribution
centers.--In the case of a non-sale transfer of cut
flowers or cut greens from a distribution center, the
amount of the sale shall be considered to be--
(i) the price paid by the distribution
center to acquire the cut flowers or cut
greens; plus
(ii) an amount determined by multiplying
acquisition price determined under clause (i)
by a uniform percentage established by the
order to represent a wholesale handler's mark-
up on a sale to a retailer.
(C) Determination of sale amount for direct sales
by importers.--In the case a direct sale by an importer
to a consumer, the amount of the sale shall be
considered to be--
(i) the price paid by the importer to
acquire the cut flowers or cut greens; plus
(ii) an amount determined by multiplying
the acquisition price determined under clause
(i) by a uniform percentage established by the
order to represent a wholesale handler's mark-
up on a sale to a retailer.
(D) Determination of sale amount for direct sales
by producers.--In the case a direct sale by a producer
to a consumer, the amount of the sale shall be
considered to be an amount determined by applying to
the price paid by the consumer a uniform percentage
established by the order to represent the cost of
producing the article and a wholesale handler's mark-up
on a sale to a retailer.
(E) Adjustment of uniform percentage.--The
PromoFlor Council may recommend to the Secretary
changes to the uniform percentage established by the
order under this paragraph. The Secretary may make a
change in the uniform percentage based on such a
recommendation only after providing an opportunity for
notice and comment regarding the proposed change.
(b) Assessment Rates.--The order shall comply with the following
assessment requirements:
(1) Initial assessment rate.--The rate of assessment on
each sale or transfer of cut flowers or cut greens, for the
first three years the order is in effect, shall be one-half of
one percent of--
(A) the gross sales price of product sold; or
(B) in the case of transactions described in
subsection (a)(4), the amount of the transaction
calculated as provided in such subsection.
(2) Changes in assessment rate.--
(A) Authorized amount of change.--Subject to
subparagraph (B), after the first three years the order
is in effect, the uniform assessment rate may be
increased or decreased annually by not more than .25
percent of--
(i) the gross sales price of product sold;
or
(ii) in the case of transactions described
in subsection (a)(4), the amount of the
transaction calculated as provided in such
subsection.
(B) Limitation.--The assessment rate may not exceed
one percent of gross sales price or transaction amount.
(C) Method of changing assessment amount.--Any
change in the rate of assessment may be made only if
adopted by the PromoFlor Council by a two-thirds
majority vote and approved by the Secretary, after
providing an opportunity for notice and comment
regarding the proposed change, as necessary to achieve
the objectives of this title. The change in the rate of
assessment shall be announced by the PromoFlor Council
at least 30 days prior to going into effect. A change
in the rate of assessment shall not be subject to a
vote in a referendum under section 308.
(c) Submission of Assessments.--The order shall provide that each
person required to pay assessments under this section shall remit, to
the PromoFlor Council, the assessment due from each sale by that person
of cut flowers or cut greens that is subject to an assessment within
such time period after the sale (not to exceed 60 days from the end of
the month in which the sale took place) as specified in the order.
(d) Refunds From Escrow Account.--
(1) Establishment of escrow account.--The order shall
provide that the PromoFlor Council shall--
(A) establish an escrow account to be used for
assessment refunds as needed; and
(B) place into the escrow account an amount equal
to 10 percent of the total amount of assessments
collected during the period beginning on the date the
order goes into effect, as provided in section
304(b)(3), and ending on the date the initial
referendum on the order provided for in section 308(a)
is completed.
(2) Right to receive refund.--
(A) In general.--The order shall provide that,
subject to paragraph (3) and the conditions specified
in subparagraph (B), any qualified handler shall have
the right to demand and receive from the PromoFlor
Council out of the escrow account a one-time refund of
any assessments paid by or on behalf of the qualified
handler during the time period specified in paragraph
(1)(B), if--
(i) the qualified handler is required to
pay such assessments;
(ii) the qualified handler does not support
the program established under this title;
(iii) the qualified handler demands a
refund prior to the conduct of the referendum
on the order under section 308(a); and
(iv) the order is not approved by qualified
handlers in the referendum.
(B) Conditions.--The right of any qualified handler
to receive refunds under subparagraph (A) shall be
subject to the following conditions:
(i) The demand shall be made in accordance
with regulations, on a form, and within a time
period prescribed by the PromoFlor Council.
(ii) The refund shall be made only on
submission of proof satisfactory to the
PromoFlor Council that the qualified handler
paid the assessment for which refund is
demanded.
(iii) If the amount in the escrow account
required under paragraph (1) is not sufficient
to refund the total amount of assessments
demanded by all qualified handlers determined
eligible for refunds and the order is not
approved in the referendum on the order under
section 308(a), the PromoFlor Council shall
prorate the amount of all such refunds among
all eligible qualified handlers that demand a
refund.
(3) Program approved.--The order shall provide that, if the
order is approved in the referendum under section 308(a), there
shall be no refunds made and all funds in the escrow account
shall be returned to the PromoFlor Council for use by the
PromoFlor Council in accordance with the other provisions of
the order.
(e) Use of assessment funds.--The order shall provide that
assessment funds (net of any refunds paid out under the terms of the
order contained in subsection (d)) shall be used for payment of costs
incurred in implementing and administering the order, with provision
for a reasonable reserve, and to cover those administrative costs
incurred by the Secretary in implementing and administering this title,
except for the salaries of Government employees incurred in conducting
referenda.
(f) Postponement of collections.--
(1) Authority.--Notwithstanding any other provision of this
title, the PromoFlor Council may grant a postponement of the
payment of assessments under this section for any qualified
handler that establishes that it is financially unable to make
the payment. The granting of such a postponement shall be
considered under application and documentation requirements and
review procedures established under rules recommended by the
PromoFlor Council, approved by the Secretary, and issued after
providing public notice and an opportunity to comment on the
proposed rules.
(2) Criteria and responsibility for determinations.--To
establish that it is financially unable to pay assessments, an
applicant for a postponement shall demonstrate that it is
insolvent and will be unable to continue to operate if it is
required to pay assessments. As part of making such a
demonstration, the applicant shall submit an opinion of an
independent certified public accountant and any other
documentation required under the rules prescribed under
paragraph (1). All books, records, and other documentation
submitted by a qualified handler under this paragraph shall be
subject to the confidentiality requirements of section 505(i).
(3) Period of postponement.--The time period of any
postponement and the terms and conditions of payment of
assessments that are postponed under this subsection shall be
established by the PromoFlor Council, in accordance with the
rules prescribed under paragraph (1), so as to appropriately
reflect the proven needs of the qualified handler.
Postponements may be extended under the requirements and
procedures established pursuant to paragraph (1) for the grant
of initial postponements.
(g) Other Terms of Order.--The order shall contain such other terms
and provisions, not inconsistent with this title, as are necessary to
effectuate this title, including provision for the assessment of
interest and a charge for each late payment of assessments under this
section.
(h) Exclusion from Assessments.--The order shall exclude from
assessments under the order any sale of cut flowers or cut greens for
export from the United States.
SEC. 307. REQUIRED DETERMINATIONS.
(a) Determination of Annual Sales.--
(1) In general.--For purposes of applying the $750,000
annual sales limitation to specific persons in order to
determine status as a qualified handler or an exempt handler
under section 303(4), or to specific facilities in order to
determine status as an eligible separate facility under section
308(b)(2), any order issued under this title shall provide that
a determination of a person's or facility's annual sales volume
shall be based on the sales of cut flowers and cut greens by
the person or facility during the most recently-completed
calendar year.
(2) Special rule for new businesses.--With respect to new
businesses and other operations for which complete data on
sales during all or part of the most recently-completed
calendar year are not available to the PromoFlor Council, the
determination under paragraph (1) may be made using an
alternative time period or other alternative procedures
specified in the order.
(b) Rule of Attribution.--
(1) In general.--For purposes of determining the annual
sales volume of a person or a separate facility of a person,
sales attributable to a person shall include--
(A) in those cases in which the person is an
individual, sales attributable to such person's spouse,
children, grandchildren, parents, and grandparents;
(B) in those cases in which the person is a
partnership or member of a partnership, sales
attributable to the partnership and other partners of
the partnership;
(C) for both individuals and partnerships, sales
attributable to any corporation or other entity in
which the person owns more than 50 percent of the stock
or (if the entity is not a corporation) that the person
controls; and
(D) in those cases in which the person is a
corporation, sales attributable to any corporate
subsidiary or other corporation or entity in which the
corporation owns more than 50 percent of the stock or
(if the entity is not a corporation) that the
corporation controls.
(2) Treatment of certain stock and ownership interests.--
For purposes of this subsection, stock or an ownership interest
in an entity that is owned by the spouse, children,
grandchildren, parents, grandparents, or partners of an
individual, or by a partnership in which a person is a partner,
or by a corporation more than 50 percent of the stock of which
is owned by a person, shall be treated as owned by the
individual or person.
(c) Reports.--For purposes of this section, the order may require
each person that sells cut flowers or cut greens to retailers to submit
reports to the PromoFlor Council on annual sales by the person. A
report under this subsection shall be subject to the confidentiality
requirements provided in section 305(i)(2).
SEC. 308. REFERENDA.
(a) Requirement for Initial Referendum.--
(1) Conduct.--Not later than 36 months after the issuance
of an order under section 304(b)(3), the Secretary shall
conduct a referendum among qualified handlers required to pay
assessments under the order, as provided in section 306,
subject to the rules on voting provided in subsection (b), to
ascertain whether or not the order then in effect shall be
continued.
(2) Approval of order needed.--The order shall be continued
only if the Secretary determines that the order has been
approved by a simple majority of all votes cast in the
referendum. If the order is not approved, the Secretary shall
terminate the order as provided in subsection (d).
(b) Votes Permitted.--
(1) In general.--Each qualified handler eligible to vote in
a referendum under this section shall be entitled to cast one
vote for each separate facility of the person that is an
eligible separate facility, as defined in paragraph (2).
(2) Eligible separate facility.--
(A) Separate facility.--A handling or marketing
facility of a qualified handler shall be considered a
separate facility if it is physically located away from
other facilities of the qualified handler or its
business function is substantially different than the
functions of other facilities owned or operated by the
qualified handler.
(B) Eligibility.--A separate facility of a
qualified handler shall be considered to be an eligible
separate facility if the annual sales of cut flowers
and cut greens to retailers and exempt handlers from
the facility are $750,000 or more.
(C) Annual sales determined.--For purposes of
determining the amount of annual sales of cut flowers
and cut greens under subparagraph (B) of this
paragraph, the rules set out in subparagraphs (A) and
(C) of section 303(4) shall be applicable.
(c) Suspension or Termination Referenda.--Effective beginning three
years after an order issued under this title is approved in a
referendum conducted under subsection (a), the Secretary--
(1) at the Secretary's discretion, may conduct at any time
a referendum of qualified handlers required to pay assessments
under the order, as provided in section 306, subject to the
rules on voting provided in subsection (b), to ascertain
whether or not qualified handlers favor suspension or
termination of the order; and
(2) whenever requested by the PromoFlor Council or by a
representative group comprising thirty percent or more of all
qualified handlers required to pay assessments under the order,
as provided in section 306, shall conduct a referendum of all
qualified handlers required to pay assessments under the order,
as provided in section 306, subject to the rules on voting
provided in subsection (b), to ascertain whether or not
qualified handlers favor suspension or termination of the
order.
(d) Suspension or Termination.--If, as a result of the referendum
conducted under subsection (a)(2), the Secretary determines that the
order has not been approved by a simple majority of all votes cast in
the referendum, or as a result of a referendum conducted under
subsection (c), the Secretary determines that suspension or termination
of the order is favored by a simple majority of all votes cast in the
referendum, the Secretary shall--
(1) within six months after the referendum, suspend or
terminate, as appropriate, collection of assessments under the
order; and
(2) suspend or terminate, as appropriate, activities under
the order in an orderly manner as soon as practicable.
(e) Manner of Conducting Referenda.--Referenda under this section
shall be conducted in such manner as is determined appropriate by the
Secretary.
SEC. 309. PETITION AND REVIEW.
(a) Petition and Hearing.--
(1) Petition.--A person subject to an order issued under
this title may file with the Secretary a petition--
(A) stating that the order, any provision of the
order, or any obligation imposed in connection with the
order is not in accordance with law; and
(B) requesting a modification of the order or an
exemption from the order.
(2) Hearing.--The petitioner shall be given the opportunity
for a hearing on a petition filed under paragraph (1), in
accordance with regulations issued by the Secretary. Any such
hearing shall be conducted in accordance with section 311(b)(2)
and be held within the United States judicial district in which
the person's residence or principal place of business is
located.
(3) Ruling.--After a hearing under paragraph (2), the
Secretary shall make a ruling on the petition, which shall be
final if in accordance with law.
(b) Review.--
(1) Commencement of action.--The district courts of the
United States in any district in which a person that is a
petitioner under subsection (a) resides or carries on business
are hereby vested with jurisdiction to review the Secretary's
ruling on the person's petition, if a complaint for that
purpose is filed within 20 days after the date of the entry of
the ruling by the Secretary.
(2) Process.--Service of process in proceedings under this
subsection shall be conducted in accordance with the Federal
Rules of Civil Procedure.
(3) Remand.--If the court in a proceeding under this
subsection determines that the Secretary's ruling on the
person's petition is not in accordance with law, the court
shall remand the matter to the Secretary with directions
either--
(A) to make such ruling as the court shall
determine to be in accordance with law; or
(B) to take such further action as, in the opinion
of the court, the law requires.
(c) Enforcement Under Section 310.--The pendency of proceedings
instituted under this section shall not impede, hinder, or delay the
Attorney General or the Secretary from obtaining relief under section
310.
SEC. 310. ENFORCEMENT.
(a) Jurisdiction.--The several district courts of the United States
are vested with jurisdiction specifically to enforce, and to prevent
and restrain any person from violating, this title or an order or
regulation made or issued by the Secretary under this title.
(b) Referral to Attorney General.--A civil action brought under
subsection (a) shall be referred to the Attorney General for
appropriate action, except that the Secretary is not required to refer
to the Attorney General a violation of this title, or an order or
regulation issued under this title, if the Secretary believes that the
administration and enforcement of this title would be adequately served
by administrative action under subsection (c) or suitable written
notice or warning to the person who committed or is committing the
violation.
(c) Civil Penalties and Orders.--
(1) Civil penalties.--A person that violates a provision of
this title, or an order or regulation issued by the Secretary
under this title, or who fails or refuses to pay, collect, or
remit any assessment or fee duly required of the person under
an order or regulation issued under this title, may be assessed
by the Secretary--
(A) a civil penalty of not less than $500 nor more
than $5,000 for each such violation; and
(B) in the case of a willful failure to remit an
assessment as required by an order or regulation, an
additional penalty equal to the amount of the
assessment.
(2) Treatment as separate offenses.--Each violation
described in paragraph (1) shall be treated as a separate
offense.
(3) Cease and desist orders.--In addition to or in lieu of
a civil penalty under paragraph (1), the Secretary may issue an
order requiring a person to cease and desist from continuing a
violation of this title or an order or regulation issued under
this title.
(4) Notice and hearing.--No penalty shall be assessed or
cease and desist order issued by the Secretary under this
subsection unless the Secretary gives the person against whom
the penalty is assessed or the order is issued notice and
opportunity for a hearing before the Secretary with respect to
the violation. The hearing shall be conducted in accordance
with section 311(b)(2) and be held within the United States
judicial district in which the person's residence or principal
place of business is located.
(5) Finality.--The penalty assessed or cease and desist
order issued under this subsection shall be final and
conclusive unless the person against whom the penalty is
assessed or the order is issued files an appeal with the
appropriate district court of the United States in accordance
with subsection (d).
(d) Review by District Court.--
(1) Commencement of action.--Any person against whom a
violation is found and a civil penalty assessed or cease and
desist order issued under subsection (c) may obtain review of
the penalty or order by--
(A) filing, within the 30-day period beginning on
the date the penalty is assessed or order issued, a
notice of appeal in the district court of the United
States for the district in which the person resides or
carries on business, or in the United States district
court for the District of Columbia; and
(B) simultaneously sending a copy of the notice by
certified mail to the Secretary.
(2) Filing of record.--Upon the filing of a notice of
appeal under paragraph (1), the Secretary shall promptly file
in the district court in which the notice of appeal is filed a
certified copy of the record on which the Secretary found that
the person had committed a violation.
(3) Standard of review.--A finding of the Secretary shall
be set aside under this subsection only if the finding is found
to be unsupported by substantial evidence.
(e) Failure To Obey an Order.--A person that fails to obey a cease
and desist order issued under subsection (c) after the order has become
final and unappealable, or after the appropriate United States district
court has entered a final judgment in favor of the Secretary, shall be
subject to a civil penalty assessed by the Secretary of not more than
$5,000 for each offense, after opportunity for a hearing and for
judicial review under the procedures specified in subsections (c) and
(d). Each day during which the failure continues shall be considered as
a separate violation of the order.
(f) Failure To Pay a Penalty.--If a person fails to pay a civil
penalty assessed under subsection (c) or (e) after the penalty has
become final and unappealable, or after the appropriate United States
district court has entered final judgment in favor of the Secretary,
the Secretary shall refer the matter to the Attorney General for
recovery of the amount assessed in any United States district court in
which the person resides or carries on business. In such action, the
validity and appropriateness of the civil penalty shall not be subject
to review.
(g) Additional Remedies.--The remedies provided in this title shall
be in addition to, and not exclusive of, other remedies that may be
available.
SEC. 311. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) Investigations.--The Secretary may make such investigations as
the Secretary considers necessary for the effective administration of
this title, or to determine whether any person has engaged or is
engaging in any act that constitutes a violation of this title, or any
order or regulation issued under this title.
(b) Subpoenas, Oaths, and Affirmations.--
(1) In general.--For the purpose of an investigation under
subsection (a), the Secretary may administer oaths and
affirmations, and issue subpoenas to require the production of
any records that are relevant to the inquiry. The production of
any such records may be required from any place in the United
States.
(2) Administrative hearings.--For the purpose of an
administrative hearing held under section 309(a)(2) or
310(c)(3), the presiding officer may administer oaths and
affirmations, subpoena witnesses, compel their attendance, take
evidence, and require the production of any records that are
relevant to the inquiry. The attendance of witnesses and the
production of any such records may be required from any place
in the United States.
(c) Aid of Courts.--
(1) In general.--In the case of contumacy by, or refusal to
obey a subpoena issued to, any person, the Secretary may invoke
the aid of any court of the United States within the
jurisdiction of which the investigation or proceeding is
carried on, or where the person resides or carries on business,
in order to enforce a subpoena issued under subsection (b). The
court may issue an order requiring the person to comply with
such a subpoena. Any failure to obey the order of the court may
be punished by the court as a contempt thereof.
(2) Process.--Process in any proceeding under this
subsection may be served in the United States judicial district
in which the person being proceeded against resides or carries
on business or wherever the person may be found.
SEC. 312. CONFIDENTIALITY.
(a) Prohibition.--No information on how a person voted in a
referendum conducted under this title shall be made public.
(b) Penalty.--Any person knowingly violating subsection (a) or the
confidentiality terms of an order, as described in section 305(i)(2),
on conviction shall be subject to a fine of not less than $1,000 nor
more than $10,000 or to imprisonment for not more than one year, or
both, and, if an officer or employee of the Department of Agriculture
or the PromoFlor Council, shall be removed from office.
(c) Additional Prohibition.--No information obtained under this
title may be made available to any agency or officer of the Federal
Government for any purpose other than the implementation of this title
and any investigatory or enforcement actions necessary for the
implementation of this title.
(d) Withholding Information From Congress Prohibited.--Nothing in
this title shall be construed to authorize the withholding of
information from Congress.
SEC. 313. AUTHORITY FOR SECRETARY TO SUSPEND OR TERMINATE ORDER.
Whenever the Secretary finds that an order issued under this title,
or any provision of the order, obstructs or does not tend to effectuate
the declared policy of this title, the Secretary shall terminate or
suspend the operation of the order or provision under such terms as the
Secretary determines appropriate.
SEC. 314. CONSTRUCTION.
(a) Termination or Suspension Not an Order.--The termination or
suspension of an order, or any provision thereof, shall not be
considered an order under the meaning of this title.
(b) Producer Rights.--Nothing in this title may be construed to
provide for control of production or otherwise limit the right of
individual cut flowers and cut greens producers to produce cut flowers
and cut greens. This title seeks to treat all persons producing cut
flowers and cut greens fairly and to implement any order established
hereunder equitably in every respect.
(c) Other Programs.--Nothing in this title may be construed to
preempt or supersede any other program relating to cut flowers or cut
greens promotion and consumer information organized and operated under
the laws of the United States or any State.
SEC. 315. REGULATIONS.
The Secretary may issue such regulations as are necessary to carry
out this title and the powers vested in the Secretary by this title,
including regulations relating to the assessment of late payment
charges and interest.
SEC. 316. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated for each
fiscal year such sums as may be necessary to carry out this title.
(b) Administrative Expenses.--Funds appropriated under subsection
(a) may not be used for payment of the expenses or expenditures of the
PromoFlor Council in administering any provision of an order issued
under this title.
SEC. 317. SEPARABILITY.
If any provision of this title or the application thereof to any
person or circumstances is held invalid, the validity of the remainder
of the title and of the application of such provision to other persons
and circumstances shall not be affected thereby.
TITLE IV--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
SEC. 401. SHORT TITLE.
This title may be cited as the ``Lime Research, Promotion, and
Consumer Information Improvement Act''.
SEC. 402. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) The Lime Research, Promotion, and Consumer Information
Act of 1990 was enacted on November 28, 1990, for the purpose
of establishing an orderly procedure for the development and
financing of an effective and coordinated program of research,
promotion, and consumer information to strengthen the domestic
and foreign markets for limes.
(2) The lime research, promotion, and consumer information
order required by such Act became effective on January 27,
1992.
(3) Although the intent of such Act was to cover seedless
limes, the definition of the term ``lime'' in section 1953(6)
of such Act applies to seeded limes. Therefore, the Act and the
order need to be revised before a research, promotion, and
consumer information program on seedless limes can go into
effect.
(4) Since the enactment of the Lime Research, Promotion,
and Consumer Information Act of 1990, the United States
production of fresh market limes has plummeted and the volume
of imports has risen dramatically. The drop in United States
production is primarily due to damage to lime orchards in the
State of Florida by Hurricane Andrew in August 1992. United
States production is not expected to reach pre-Hurricane Andrew
levels for possibly two to three years because a majority of
the United States production of limes is in Florida.
(b) Purposes.--The purpose of this Act is--
(1) to revise the definition of the term ``lime'' in order
to cover seedless and not seeded limes;
(2) to increase the exemption level;
(3) to delay the initial referendum date; and
(4) to alter the composition of the Lime Board.
SEC. 403. DEFINITION OF LIME.
Section 1953(6) of the Lime Research, Promotion, and Consumer
Information Act of 1990 (7 U.S.C. 6202(6)) is amended by striking
``citrus aurantifolia'' and inserting ``citrus latifolia''.
SEC. 404. REQUIRED TERMS IN ORDERS.
(a) Composition of Lime Board.--Subsection (b) of section 1955 of
the Lime Research, Promotion, and Consumer Information Act of 1990 (7
U.S.C. 6204) is amended--
(1) in paragraph (1)(A), by striking ``7'' and inserting
``3'';
(2) in paragraph (2)(B), by striking ``7'' and inserting
``3'';
(3) in paragraph (2)(F), by adding at the end the following
new sentence: ``The Secretary shall terminate the initial Board
established under this subsection as soon as practicable after
the date of the enactment of the Lime Research, Promotion, and
Consumer Information Improvement Act.''; and
(4) by inserting after paragraph (2)(F) the following new
paragraph:
``(G) Board allocation.--The producer and importer
representation on the Board shall be allocated on the
basis of 2 producer members and 1 importer member from
the district east of the Mississippi River and 1
producer member and 2 importer members from the
district west of the Mississippi River.''.
(b) Terms of Members.--Subsection (b)(4) of such section is
amended--
(1) by striking ``The Secretary'' and all that follows
through ``shall--'' and inserting ``The initial members of the
Board appointed under the amended order shall serve a term of
30 months. Subsequent appointments to the Board shall be for a
term of 3 years, except that--'';
(2) in subparagraph (A), by striking ``3'' and inserting
``2'';
(3) in subparagraph (B), by striking ``4'' and inserting
``2''; and
(4) in subparagraph (C), by striking ``4'' and inserting
``3''.
(c) De Minimis Exception.--Subsection (d)(5) of such section is
amended by striking ``35,000'' each place it appears and inserting
``200,000''.
SEC. 405. INITIAL REFERENDUM.
Section 1960(a) of the Lime Research, Promotion, and Consumer
Information Act of 1990 (7 U.S.C. 6209(a)) is amended by striking ``Not
later than 2 years after the date on which the Secretary first issues
an order under section 1954(a),'' and inserting ``Not later than 30
months after the date on which the collection of assessments begins
under the order pursuant to section 1955(d),''.
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