CHAPTER 101—AGRICULTURAL
PROMOTION
SUBCHAPTER I—COMMODITY PROMOTION AND EVALUATION
7401.
Commodity promotion and
evaluation.
SUBCHAPTER II—ISSUANCE OF ORDERS FOR PROMOTION, RESEARCH, AND
INFORMATION ACTIVITIES REGARDING AGRICULTURAL COMMODITIES
7411.
Findings and purpose.
7413.
Issuance of orders.
7414.
Required terms in
orders.
7415.
Permissive terms in
orders.
7416a.
Confirmation of
authority of Secretary
of Agriculture to
collect State commodity
assessments.
7418.
Petition and review of
orders.
7420.
Investigations and power
to subpoena.
7421.
Suspension or
termination.
7422.
Amendments to orders.
7423.
Effect on other laws.
7425.
Authorization of
appropriations.
SUBCHAPTER III—CANOLA AND RAPESEED
7441.
Findings and declaration
of policy.
7443.
Issuance and amendment
of orders.
7444.
Required terms in
orders.
7447.
Petition and review.
7449.
Investigations and power
to subpoena.
7450.
Suspension or
termination.
7452.
Authorization of
appropriations.
SUBCHAPTER IV—KIWIFRUIT
7461.
Findings and purposes.
7463.
Issuance of orders.
7464.
National Kiwifruit
Board.
7465.
Required terms in order.
7466.
Permissive terms in
order.
7467.
Petition and review.
7469.
Investigations and power
to subpoena.
7471.
Suspension or
termination.
7473.
Authorization of
appropriations.
SUBCHAPTER V—POPCORN
7481.
Findings and declaration
of policy.
7483.
Issuance of orders.
7484.
Required terms in
orders.
7486.
Petition and review.
7488.
Investigations and power
to subpoena.
7489.
Relation to other
programs.
7491.
Authorization of
appropriations.
SUBCHAPTER I—COMMODITY PROMOTION AND EVALUATION
§7401. Commodity promotion and evaluation
(a) “Commodity promotion law” defined
In this section, the term “commodity promotion law” means a Federal law
that provides for the establishment and operation of a promotion program
regarding an agricultural commodity that includes a combination of
promotion, research, industry information, or consumer information
activities, is funded by mandatory assessments on producers or
processors, and is designed to maintain or expand markets and uses for
the commodity (as determined by the Secretary). The term includes—
(1) the marketing promotion provisions under section
608c(6)(I) of this title;
(2) Public
Law 89–502 (7
U.S.C. 2101 et seq.);
(3) title III of Public
Law 91–670 (7
U.S.C. 2611 et seq.);
(4) Public
Law 93–428 (7
U.S.C. 2701 et seq.);
(5) Public
Law 94–294 (7
U.S.C. 2901 et seq.);
(6) subtitle B of title I of Public
Law 98–180 (7
U.S.C. 4501 et seq.);
(7) Public
Law 98–590 (7
U.S.C. 4601 et seq.);
(8) subtitle B of title XVI of Public
Law 99–198 (7
U.S.C. 4801 et seq.);
(9) subtitle C of title XVI of Public
Law 99–198 (7
U.S.C. 4901 et seq.);
(10) subtitle B of title XIX of Public
Law 101–624 (7
U.S.C. 6101 et seq.);
(11) subtitle E of title XIX of Public
Law 101–624 (7
U.S.C. 6301 et seq.);
(12) subtitle H of title XIX of Public
Law 101–624 (7
U.S.C. 6401 et seq.);
(13) Public
Law 103–190 (7
U.S.C. 6801 et seq.);
(14) Public
Law 103–407 (7
U.S.C. 7101 et seq.);
(15) subchapter II of this chapter;
(16) subchapter III of this chapter;
(17) subchapter IV of this chapter;
(18) subchapter V of this chapter; or
(19) any other provision of law enacted after April 4, 1996, that
provides for the establishment and operation of a promotion program
described in the first sentence.
(b) Findings
Congress finds the following:
(1) It is in the national public interest and vital to the welfare of
the agricultural economy of the United States to maintain and expand
existing markets and develop new markets and uses for agricultural
commodities through industry-funded, Government-supervised, generic
commodity promotion programs established under commodity promotion laws.
(2) These generic commodity promotion programs, funded by the
agricultural producers or processors who most directly reap the benefits
of the programs and supervised by the Secretary of Agriculture, provide
a unique opportunity for producers and processors to inform consumers
about their products.
(3) The central congressional purpose underlying each commodity
promotion law has always been to maintain and expand markets for the
agricultural commodity covered by the law, rather than to maintain or
expand the share of those markets held by any individual producer or
processor.
(4) The commodity promotion laws were neither designed nor intended to
prohibit or restrict, and the promotion programs established and funded
pursuant to these laws do not prohibit or restrict, individual
advertising or promotion of the covered commodities by any producer,
processor, or group of producers or processors.
(5) It has never been the intent of Congress for the generic commodity
promotion programs established and funded by the commodity promotion
laws to replace the individual advertising and promotion efforts of
producers or processors.
(6) An individual producer's or processor's own advertising initiatives
are typically designed to increase the share of the market held by that
producer or processor rather than to increase or expand the overall size
of the market.
(7) In contrast, a generic commodity promotion program is intended and
designed to maintain or increase the overall demand for the agricultural
commodity covered by the program and increase the size of the market for
that commodity, often by utilizing promotion methods and techniques that
individual producers and processors typically are unable, or have no
incentive, to employ.
(8) The commodity promotion laws establish promotion programs that
operate as “self-help” mechanisms for producers and processors to fund
generic promotions for covered commodities which, under the required
supervision and oversight of the Secretary of Agriculture—
(A) further specific national governmental goals, as established by
Congress; and
(B) produce nonideological and commercial communication the purpose of
which is to further the governmental policy and objective of maintaining
and expanding the markets for the covered commodities.
(9) While some commodity promotion laws grant a producer or processor
the option of crediting individual advertising conducted by the producer
or processor for all or a portion of the producer's or processor's
marketing promotion assessments, all promotion programs established
under the commodity promotion laws, both those programs that permit
credit for individual advertising and those programs that do not contain
such provisions, are very narrowly tailored to fulfill the congressional
purposes of the commodity promotion laws without impairing or infringing
the legal or constitutional rights of any individual producer or
processor.
(10) These generic commodity promotion programs are of particular
benefit to small producers who often lack the resources or market power
to advertise on their own and who are otherwise often unable to benefit
from the economies of scale available in promotion and advertising.
(11) Periodic independent evaluation of the effectiveness of these
generic commodity promotion programs will assist Congress and the
Secretary of Agriculture in ensuring that the objectives of the programs
are met.
(c) Independent evaluation of promotion program effectiveness
Except as otherwise provided by law, each commodity board established
under the supervision and oversight of the Secretary of Agriculture
pursuant to a commodity promotion law shall, not less often than every 5
years, authorize and fund, from funds otherwise available to the board,
an independent evaluation of the effectiveness of the generic commodity
promotion programs and other programs conducted by the board pursuant to
a commodity promotion law. The board shall submit to the Secretary, and
make available to the public, the results of each periodic independent
evaluation conducted under this subsection.
(d) Administrative costs
The Secretary shall annually provide to the Committee on Agriculture of
the House of Representatives and the Committee on Agriculture,
Nutrition, and Forestry of the Senate information on administrative
expenses on programs established under commodity promotion laws.
(e) Exemption of certified organic products from assessments
(1) In general
Notwithstanding any provision of a commodity promotion law, a person
that produces and markets solely 100 percent organic products, and that
does not produce any conventional or nonorganic products, shall be
exempt from the payment of an assessment under a commodity promotion law
with respect to any agricultural commodity that is produced on a
certified organic farm (as defined in section
6502 of this title).
(2) Regulations
Not later than 1 year after May 13, 2002, the Secretary shall promulgate
regulations concerning eligibility and compliance for an exemption under
paragraph (1).
(Pub. L. 104–127, title
V, §501, Apr. 4, 1996, 110
Stat. 1029; Pub.
L. 107–171, title X,
§10607, May 13, 2002, 116
Stat. 514.)
References in Text
Public Law 89–502, referred
to in subsec. (a)(2), is Pub.
L. 89–502, July 13,
1966, 80
Stat. 279, as amended, known as the Cotton Research and
Promotion Act, which is classified generally to chapter
53 (§2101 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section
2101 of this titleand Tables.
Public Law 91–670, referred
to in subsec. (a)(3), is Pub.
L. 91–670, Jan. 11,
1971, 84
Stat. 2040, as amended. Title III of Pub.
L. 91–670, known as
the Potato Research and Promotion Act, is classified generally to chapter
58(§2611 et seq.) of this title. For complete classification of
title III to the Code, see Short Title note set out undersection
2611 of this title and
Tables.
Public Law 93–428, referred
to in subsec. (a)(4), is Pub.
L. 93–428, Oct. 1,
1974, 88
Stat. 1171, as amended, known as the Egg Research and
Consumer Information Act, which is classified generally to chapter
60 (§2701 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section
2701 of this title and
Tables.
Public Law 94–294, referred
to in subsec. (a)(5), is Pub.
L. 94–294, May 28,
1976, 90
Stat. 529, as amended, known as the Beef Research and
Information Act, which is classified generally to chapter
62 (§2901 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section
2901 of this titleand Tables.
Public Law 98–180, referred
to in subsec. (a)(6), is Pub.
L. 98–180, Nov. 29,
1983, 97
Stat. 1128, as amended. Title I of Pub.
L. 98–180 is known as
the Dairy Production Stabilization Act of 1983. Subtitle B of title I is
classified generally to subchapter I (§4501 et seq.) of chapter
76 of this title.
For complete classification of title I to the Code, see Short Title note
set out under section
4501 of this title and
Tables.
Public Law 98–590, referred
to in subsec. (a)(7), is Pub.
L. 98–590, Oct. 30,
1984, 98
Stat. 3115, as amended, known as the Honey Research,
Promotion, and Consumer Information Act, which is classified generally
to chapter
77 (§4601 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out undersection
4601 of this title and
Tables.
Public Law 99–198, referred
to in subsec. (a)(8), (9), is Pub.
L. 99–198, Dec. 23,
1985, 99
Stat. 1354, as amended, known as the Food Security Act
of 1985. Subtitle B of title XVI of Pub.
L. 99–198, known as
the Pork Promotion, Research, and Consumer Information Act of 1985, is
classified generally to chapter
79 (§4801 et seq.)
of this title. Subtitle C of title XVI of Pub.
L. 99–198, known as
the Watermelon Research and Promotion Act, is classified generally to chapter
80 (§4901 et seq.)
of this title. For complete classification of subtitles B and C to the
Code, see Short Title notes set out under sections 4801 and 4901,
respectively, of this title and Tables.
Public Law 101–624, referred
to in subsec. (a)(10), (11), (12), is Pub.
L. 101–624, Nov. 28,
1990, 104
Stat. 3359, as amended, known as the Food, Agriculture,
Conservation, and Trade Act of 1990. Subtitle B of title XIX of Pub.
L. 101–624, known as
the Mushroom Promotion, Research, and Consumer Information Act of 1990,
is classified generally to chapter
90 (§6101 et seq.)
of this title. Subtitle E of title XIX of Pub.
L. 101–624, known as
the Soybean Promotion, Research, and Consumer Information Act, is
classified generally to chapter
92 (§6301 et seq.)
of this title. Subtitle H of title XIX of Pub.
L. 101–624, known as
the Fluid Milk Promotion Act of 1990, is classified generally tochapter
93 (§6401 et seq.)
of this title. For complete classification of subtitles B, E, and H to
the Code, see Short Title notes set out under sections 6101, 6301, and
6401, respectively, of this title and Tables.
Public Law 103–190, referred
to in subsec. (a)(13), is Pub.
L. 103–190, Dec. 14,
1993, 107
Stat. 2266, known as the Fresh Cut Flowers and Fresh
Cut Greens Promotion and Information Act of 1993, which is classified
generally tochapter 97 (§6801
et seq.) of this title. For complete classification of this Act to the
Code, see Short Title note set out under section
6801 of this title and
Tables.
Public Law 103–407, referred
to in subsec. (a)(14), is Pub.
L. 103–407, Oct. 22,
1994, 108
Stat. 4210, known as the Sheep Promotion, Research, and
Information Act of 1994, which is classified generally to chapter
99 (§7101 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section
7101 of this title and
Tables.
Amendments
2002—Subsec. (a)(19). Pub.
L. 107–171, §10607(b),
added par. (19).
Subsec. (e). Pub.
L. 107–171, §10607(a),
added subsec. (e).
Short Title
Section 511 of title V of Pub.
L. 104–127 provided
that: “This subtitle [subtitle B (§§511–526) of title V of Pub.
L. 104–127, enacting
subchapter II of this chapter] may be cited as the ‘Commodity Promotion,
Research, and Information Act of 1996’.”
Section 531 of title V of Pub.
L. 104–127 provided
that: “This subtitle [subtitle C (§§531–543) of title V of Pub.
L. 104–127, enacting
subchapter III of this chapter] may be cited as the ‘Canola and Rapeseed
Research, Promotion, and Consumer Information Act’.”
Section 551 of title V of Pub.
L. 104–127 provided
that: “This subtitle [subtitle D (§§551–564) of title V of Pub.
L. 104–127, enacting
subchapter IV of this chapter] may be cited as the ‘National Kiwifruit
Research, Promotion, and Consumer Information Act’.”
Section 571 of title V of Pub.
L. 104–127 provided
that: “This subtitle [subtitle E (§§571–582) of title V of Pub.
L. 104–127, enacting
subchapter V of this chapter] may be cited as the ‘Popcorn Promotion,
Research, and Consumer Information Act’.”
SUBCHAPTER II—ISSUANCE OF ORDERS FOR PROMOTION, RESEARCH, AND
INFORMATION ACTIVITIES REGARDING AGRICULTURAL COMMODITIES
§7411. Findings and purpose
(a) Findings
Congress finds the following:
(1) The production of agricultural commodities plays a significant role
in the economy of the United States. Thousands of producers in the
United States are involved in the production of agricultural
commodities, and such commodities are consumed by millions of people
throughout the United States and foreign countries.
(2) Agricultural commodities must be of high quality, readily available,
handled properly, and marketed efficiently to ensure that consumers have
an adequate supply.
(3) The maintenance and expansion of existing markets and the
development of new markets for agricultural commodities through generic
commodity promotion, research, and information programs are vital to the
welfare of persons engaged in the production, marketing, and consumption
of such commodities, as well as to the general economy of the United
States.
(4) Generic promotion, research, and information activities for
agricultural commodities play a unique role in advancing the demand for
such commodities, since such activities increase the total market for a
product to the benefit of consumers and all producers. These generic
activities complement branded advertising initiatives, which are aimed
at increasing the market share of individual competitors, and are of
particular benefit to small producers who lack the resources or market
power to advertise on their own. These generic activities do not impede
the branded advertising efforts of individual firms, but instead
increase general market demand for an agricultural commodity using
methods that individual companies do not have the incentive to employ.
(5) Generic promotion, research, and information activities for
agricultural commodities, paid by the producers and others in the
industry who reap the benefits of such activities, provide a unique
opportunity for producers to inform consumers about a particular
agricultural commodity.
(6) It is important to ensure that generic promotion, research, and
information activities for agricultural commodities be carried out in an
effective and coordinated manner designed to strengthen the position of
the commodities in the marketplace and to maintain and expand their
markets and uses. Independent evaluation of the effectiveness of the
generic promotion activities of these programs will assist the Secretary
of Agriculture and Congress in ensuring that these objectives are met.
(7) The cooperative development, financing, and implementation of a
coordinated national program of research, promotion, and information
regarding agricultural commodities are necessary to maintain and expand
existing markets and to develop new markets for these commodities.
(8) Agricultural commodities move in interstate and foreign commerce,
and agricultural commodities and their products that do not move in such
channels of commerce directly burden or affect interstate commerce in
agricultural commodities and their products.
(9) Commodity promotion programs have the ability to provide significant
conservation benefits to producers and the public.
(b) Purpose
The purpose of this subchapter is to authorize the establishment,
through the exercise by the Secretary of Agriculture of the authority
provided in this subchapter, of an orderly program for developing,
financing, and carrying out an effective, continuous, and coordinated
program of generic promotion, research, and information regarding
agricultural commodities designed to—
(1) strengthen the position of agricultural commodity industries in the
marketplace;
(2) maintain and expand existing domestic and foreign markets and uses
for agricultural commodities;
(3) develop new markets and uses for agricultural commodities; or
(4) assist producers in meeting their conservation objectives.
(c) Rule of construction
Nothing in this subchapter provides for the control of production or
otherwise limits the right of any person to produce, handle, or import
an agricultural commodity.
(Pub. L. 104–127, title
V, §512, Apr. 4, 1996, 110
Stat. 1032.)
§7412. Definitions
In this subchapter (unless the context otherwise requires):
(1) Agricultural commodity
The term “agricultural commodity” means—
(A) agricultural, horticultural, viticultural, and dairy products;
(B) livestock and the products of livestock;
(C) the products of poultry and bee raising;
(D) the products of forestry;
(E) other commodities raised or produced on farms, as determined
appropriate by the Secretary; and
(F) products processed or manufactured from products specified in the
preceding subparagraphs, as determined appropriate by the Secretary.
(2) Board
The term “board” means a board established under an order issued under section
7413 of this title.
(3) Conflict of interest
The term “conflict of interest” means a situation in which a member or
employee of a board has a direct or indirect financial interest in a
person that performs a service for, or enters into a contract with, a
board for anything of economic value.
(4) Department
The term “Department” means the Department of Agriculture.
(5) First handler
The term “first handler” means the first person who buys or takes
possession of an agricultural commodity from a producer for marketing.
If a producer markets the agricultural commodity directly to consumers,
the producer shall be considered to be the first handler with respect to
the agricultural commodity produced by the producer.
(6) Importer
The term “importer” means any person who imports an agricultural
commodity from outside the United States for sale in the United States
as a principal or as an agent, broker, or consignee of any person.
(7) Information
The term “information” means information and programs that are designed
to increase—
(A) efficiency in processing; and
(B) the development of new markets, marketing strategies, increased
marketing efficiency, and activities to enhance the image of
agricultural commodities on a national or international basis.
(8) Market
The term “market” means to sell or to otherwise dispose of an
agricultural commodity in interstate, foreign, or intrastate commerce.
(9) Order
The term “order” means an order issued by the Secretary under section
7413 of this title that
provides for a program of generic promotion, research, and information
regarding agricultural commodities designed to—
(A) strengthen the position of agricultural commodity industries in the
marketplace;
(B) maintain and expand existing domestic and foreign markets and uses
for agricultural commodities;
(C) develop new markets and uses for agricultural commodities; or
(D) assist producers in meeting their conservation objectives.
(10) Person
The term “person” means any individual, group of individuals,
partnership, corporation, association, cooperative, or any other legal
entity.
(11) Producer
The term “producer” means any person who is engaged in the production
and sale of an agricultural commodity in the United States and who owns,
or shares the ownership and risk of loss of, the agricultural commodity.
(12) Promotion
The term “promotion” means any action taken by a board under an order,
including paid advertising, to present a favorable image of an
agricultural commodity to the public to improve the competitive position
of the agricultural commodity in the marketplace and to stimulate sales
of the agricultural commodity.
(13) Research
The term “research” means any type of test, study, or analysis designed
to advance the image, desirability, use, marketability, production,
product development, or quality of an agricultural commodity.
(14) Secretary
The term “Secretary” means the Secretary of Agriculture.
(15) State
The term “State” means any of the States, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the
United States.
(16) Suspend
The term “suspend” means to issue a rule under section
553 of title 5 to
temporarily prevent the operation of an order during a particular period
of time specified in the rule.
(17) Terminate
The term “terminate” means to issue a rule under section
553 of title 5 to
cancel permanently the operation of an order beginning on a date certain
specified in the rule.
(18) United States
The term “United States” means collectively the 50 States, the District
of Columbia, the Commonwealth of Puerto Rico and the territories and
possessions of the United States.
(Pub. L. 104–127, title
V, §513, Apr. 4, 1996, 110
Stat. 1033.)
§7413. Issuance of orders
(a) Issuance authorized
(1) In general
To effectuate the purpose of this subchapter, the Secretary may issue,
and amend from time to time, orders applicable to—
(A) the producers of an agricultural commodity;
(B) the first handlers of the agricultural commodity and other persons
in the marketing chain as appropriate; and
(C) the importers of the agricultural commodity, if imports of the
agricultural commodity are subject to assessment under section
7415(f) of this title.
(2) National scope
Each order issued under this section shall be national in scope.
(b) Procedure for issuance
(1) Development or receipt of proposed order
A proposed order with respect to an agricultural commodity may be—
(A) prepared by the Secretary at any time; or
(B) submitted to the Secretary by—
(i) an association of producers of the agricultural commodity; or
(ii) any other person that may be affected by the issuance of an order
with respect to the agricultural commodity.
(2) Consideration of proposed order
If the Secretary determines that a proposed order is consistent with and
will effectuate the purpose of this subchapter, the Secretary shall
publish the proposed order in the Federal Register and give due notice
and opportunity for public comment on the proposed order.
(3) Existence of other orders
In deciding whether a proposal for an order is consistent with and will
effectuate the purpose of this subchapter, the Secretary may consider
the existence of other Federal promotion, research, and information
programs or orders issued or developed pursuant to any other law.
(4) Preparation of final order
After notice and opportunity for public comment under paragraph (2)
regarding a proposed order, the Secretary shall take into consideration
the comments received in preparing a final order. The Secretary shall
ensure that the final order is in conformity with the terms, conditions,
and requirements of this subchapter.
(c) Issuance and effective date
If the Secretary determines that the final order developed with respect
to an agricultural commodity is consistent with and will effectuate the
purpose of this subchapter, the Secretary shall issue the final order.
Except in the case of an order for which an initial referendum is
conducted under section
7417(a) of this title, the final order shall be issued and
become effective not later than 270 days after the date of publication
of the proposed order that was the basis for the final order.
(d) Amendments
From time to time the Secretary may amend any order, consistent with the
requirements of section
7422 of this title.
(Pub. L. 104–127, title
V, §514, Apr. 4, 1996, 110
Stat. 1035.)
§7414. Required terms in orders
(a) In general
Each order shall contain the terms and conditions specified in this
section.
(b) Board
(1) Establishment
Each order shall establish a board to carry out a program of generic
promotion, research, and information regarding the agricultural
commodity covered by the order and intended to effectuate the purpose of
this subchapter.
(2) Board membership
(A) Number of members
Each board shall consist of the number of members considered by the
Secretary, in consultation with the agricultural commodity industry
involved, to be appropriate to administer the order. In addition to
members, the Secretary may also provide for alternates on the board.
(B) Appointment
The Secretary shall appoint the members and any alternates of a board
from among producers of the agricultural commodity and first handlers
and others in the marketing chain as appropriate. If imports of the
agricultural commodity covered by an order are subject to assessment
under section
7415(f) of this title, the Secretary shall also appoint
importers as members of the board and as alternates if alternates are
included on the board. The Secretary may appoint 1 or more members of
the general public to each board.
(C) Nominations
The Secretary may make appointments from nominations made pursuant to
the method set forth in the order.
(D) Geographical representation
To ensure fair and equitable representation of the agricultural
commodity industry covered by an order, the composition of each board
shall reflect the geographical distribution of the production of the
agricultural commodity involved in the United States and the quantity or
value of the agricultural commodity imported into the United States.
(3) Reapportionment of board membership
In accordance with rules issued by the Secretary, at least once in each
5-year period, but not more frequently than once in each 3-year period,
each board shall—
(A) review the geographical distribution in the United States of the
production of the agricultural commodity covered by the order involved
and the quantity or value of the agricultural commodity imported into
the United States; and
(B) if warranted, recommend to the Secretary the reapportionment of the
board membership to reflect changes in the geographical distribution of
the production of the agricultural commodity and the quantity or value
of the imported agricultural commodity.
(4) Notice
(A) Vacancies
Each order shall provide for notice of board vacancies to the
agricultural commodity industry involved.
(B) Meetings
Each board shall provide the Secretary with prior notice of meetings of
the board to permit the Secretary, or a designated representative of the
Secretary, to attend the meetings.
(5) Term of office
(A) In general
The members and any alternates of a board shall each serve for a term of
3 years, except that the members and any alternates initially appointed
to a board shall serve for terms of not more than 2, 3, and 4 years, as
specified by the order.
(B) Limitation on consecutive terms
A member or alternate may serve not more than 2 consecutive terms.
(C) Continuation of term
Notwithstanding subparagraph (B), each member or alternate shall
continue to serve until a successor is appointed by the Secretary.
(D) Vacancies
A vacancy arising before the expiration of a term of office of an
incumbent member or alternate of a board shall be filled in a manner
provided for in the order.
(6) Compensation
(A) In general
Members and any alternates of a board shall serve without compensation.
(B) Travel expenses
If approved by a board, members or alternates shall be reimbursed for
reasonable travel expenses, which may include a per diem allowance or
actual subsistence incurred while away from their homes or regular
places of business in the performance of services for the board.
(c) Powers and duties of board
Each order shall specify the powers and duties of the board established
under the order, which shall include the power and duty—
(1) to administer the order in accordance with its terms and conditions
and to collect assessments;
(2) to develop and recommend to the Secretary for approval such bylaws
as may be necessary for the functioning of the board and such rules as
may be necessary to administer the order, including activities
authorized to be carried out under the order;
(3) to meet, organize, and select from among the members of the board a
chairperson, other officers, and committees and subcommittees, as the
board determines to be appropriate;
(4) to employ persons, other than the members, as the board considers
necessary to assist the board in carrying out its duties, and to
determine the compensation and specify the duties of the persons;
(5) subject to subsection (e) of this section, to develop and carry out
generic promotion, research, and information activities relating to the
agricultural commodity covered by the order;
(6) to prepare and submit for the approval of the Secretary, before the
beginning of each fiscal year, rates of assessment under section
7416 of this title and
an annual budget of the anticipated expenses to be incurred in the
administration of the order, including the probable cost of each
promotion, research, and information activity proposed to be developed
or carried out by the board;
(7) to borrow funds necessary for the startup expenses of the order;
(8) subject to subsection (f) of this section, to enter into contracts
or agreements to develop and carry out generic promotion, research, and
information activities relating to the agricultural commodity covered by
the order;
(9) to pay the cost of the activities with assessments collected under section
7416 of this title, earnings from invested assessments, and
other funds;
(10) to keep records that accurately reflect the actions and
transactions of the board, to keep and report minutes of each meeting of
the board to the Secretary, and to furnish the Secretary with any
information or records the Secretary requests;
(11) to receive, investigate, and report to the Secretary complaints of
violations of the order; and
(12) to recommend to the Secretary such amendments to the order as the
board considers appropriate.
(d) Prohibited activities
A board may not engage in, and shall prohibit the employees and agents
of the board from engaging in—
(1) any action that would be a conflict of interest;
(2) using funds collected by the board under the order, any action
undertaken for the purpose of influencing any legislation or
governmental action or policy other than recommending to the Secretary
amendments to the order; and
(3) any advertising, including promotion, research, and information
activities authorized to be carried out under the order, that may be
false or misleading or disparaging to another agricultural commodity.
(e) Activities and budgets
(1) Activities
Each order shall require the board established under the order to submit
to the Secretary for approval plans and projects for promotion,
research, or information relating to the agricultural commodity covered
by the order.
(2) Budgets
(A) Submission to Secretary
Each order shall require the board established under the order to submit
to the Secretary for approval a budget of its anticipated annual
expenses and disbursements to be paid to administer the order. The
budget shall be submitted before the beginning of a fiscal year and as
frequently as may be necessary after the beginning of the fiscal year.
(B) Reimbursement of Secretary
Each order shall require that the Secretary be reimbursed for all
expenses incurred by the Secretary in the implementation,
administration, and supervision of the order, including all referenda
costs incurred in connection with the order.
(3) Incurring expenses
A board may incur the expenses described in paragraph (2) and other
expenses for the administration, maintenance, and functioning of the
board as authorized by the Secretary.
(4) Payment of expenses
Expenses incurred under paragraph (3) shall be paid by a board using
assessments collected under section
7416 of this title, earnings obtained from assessments, and
other income of the board. Any funds borrowed by the board shall be
expended only for startup costs and capital outlays.
(5) Limitation on spending
For fiscal years beginning 3 or more years after the date of the
establishment of a board, the board may not expend for administration
(except for reimbursements to the Secretary required under paragraph
(2)(B)), maintenance, and functioning of the board in a fiscal year an
amount that exceeds 15 percent of the assessment and other income
received by the board for the fiscal year.
(f) Contracts and agreements
(1) In general
Each order shall provide that, with the approval of the Secretary, the
board established under the order may—
(A) enter into contracts and agreements to carry out generic promotion,
research, and information activities relating to the agricultural
commodity covered by the order, including contracts and agreements with
producer associations or other entities as considered appropriate by the
Secretary; and
(B) pay the cost of approved generic promotion, research, and
information activities using assessments collected under section
7416 of this title, earnings obtained from assessments, and
other income of the board.
(2) Requirements
Each contract or agreement shall provide that any person who enters into
the contract or agreement with the board shall—
(A) develop and submit to the board a proposed activity together with a
budget that specifies the cost to be incurred to carry out the activity;
(B) keep accurate records of all of its transactions relating to the
contract or agreement;
(C) account for funds received and expended in connection with the
contract or agreement;
(D) make periodic reports to the board of activities conducted under the
contract or agreement; and
(E) make such other reports as the board or the Secretary considers
relevant.
(g) Records of board
(1) In general
Each order shall require the board established under the order—
(A) to maintain such records as the Secretary may require and to make
the records available to the Secretary for inspection and audit;
(B) to collect and submit to the Secretary, at any time the Secretary
may specify, any information the Secretary may request; and
(C) to account for the receipt and disbursement of all funds in the
possession, or under the control, of the board.
(2) Audits
Each order shall require the board established under the order to have—
(A) its records audited by an independent auditor at the end of each
fiscal year; and
(B) a report of the audit submitted directly to the Secretary.
(h) Periodic evaluation
In accordance with section
7401(c) of this title, each order shall require the board
established under the order to provide for the independent evaluation of
all generic promotion, research, and information activities undertaken
under the order.
(i) Books and records of persons covered by order
(1) In general
Each order shall require that producers, first handlers and other
persons in the marketing chain as appropriate, and importers covered by
the order shall—
(A) maintain records sufficient to ensure compliance with the order and
regulations;
(B) submit to the board established under the order any information
required by the board to carry out its responsibilities under the order;
and
(C) make the records described in subparagraph (A) available, during
normal business hours, for inspection by employees or agents of the
board or the Department, including any records necessary to verify
information required under subparagraph (B).
(2) Time requirement
Any record required to be maintained under paragraph (1) shall be
maintained for such time period as the Secretary may prescribe.
(3) Other information
The Secretary may use, and may authorize the board to use under this
subchapter, information regarding persons subject to an order that is
collected by the Department under any other law.
(4) Confidentiality of information
(A) In general
Except as otherwise provided in this subchapter, all information
obtained under paragraph (1) or as part of a referendum under section
7417 of this title shall
be kept confidential by all officers, employees, and agents of the
Department and of the board.
(B) Disclosure
Information referred to in subparagraph (A) may be disclosed only if—
(i) the Secretary considers the information relevant; and
(ii) the information is revealed in a judicial proceeding or
administrative hearing brought at the direction or on the request of the
Secretary or to which the Secretary or any officer of the Department is
a party.
(C) Other exceptions
This paragraph shall not prohibit—
(i) the issuance of general statements based on reports or on
information relating to a number of persons subject to an order if the
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 any order and a statement of the particular provisions
of the order violated by the person.
(D) Penalty
Any person who willfully violates this subsection shall be subject, on
conviction, to a fine of not more than $1,000 or to imprisonment for not
more than 1 year, or both.
(5) Withholding information
This subsection shall not authorize the withholding of information from
Congress.
(Pub. L. 104–127, title
V, §515, Apr. 4, 1996, 110
Stat. 1036.)
§7415. Permissive terms in orders
(a) Exemptions
An order issued under this subchapter may contain—
(1) authority for the Secretary to exempt from the order any de minimis
quantity of an agricultural commodity otherwise covered by the order;
and
(2) authority for the board established under the order to require
satisfactory safeguards against improper use of the exemption.
(b) Different payment and reporting schedules
An order issued under this subchapter may contain authority for the
board established under the order to designate different payment and
reporting schedules to recognize differences in agricultural commodity
industry marketing practices and procedures used in different production
and importing areas.
(c) Activities
An order issued under this subchapter may contain authority to develop
and carry out research, promotion, and information activities designed
to expand, improve, or make more efficient the marketing or use of the
agricultural commodity covered by the order in domestic and foreign
markets. Section
7414(e) of this title shall
apply with respect to activities authorized under this subsection.
(d) Reserve funds
An order issued under this subchapter may contain authority to reserve
funds from assessments collected undersection
7416 of this title to
permit an effective and continuous coordinated program of research,
promotion, and information in years when the yield from assessments may
be reduced, except that the amount of funds reserved may not exceed the
greatest aggregate amount of the anticipated disbursements specified in
budgets approved undersection
7414(e) of this title by
the Secretary for any 2 fiscal years.
(e) Credits
(1) Generic activities
An order issued under this subchapter may contain authority to provide
credits of assessments for those individuals who contribute to other
similar generic research, promotion, and information programs at the
State, regional, or local level.
(2) Branded activities
(A) In general
The Secretary may permit a farmer cooperative that engages in branded
activities relating to the marketing of the products of members of the
cooperative to receive an annual credit for the activities and related
expenditures in the form of a deduction of the total cost of the
activities and related expenditures from the amount of any assessment
that would otherwise be required to be paid by the producer members of
the cooperative under an order issued under this subchapter.
(B) Election by cooperative
A farmer cooperative may elect to voluntarily waive the application of
subparagraph (A) to the cooperative.
(f) Assessment of imports
An order issued under this subchapter may contain authority for the
board established under the order to assess under section
7416 of this title an
imported agricultural commodity, or products of such an agricultural
commodity, at a rate comparable to the rate determined by the
appropriate board for the domestic agricultural commodity covered by the
order.
(g) Other authority
An order issued under this subchapter may contain authority to take any
other action that—
(1) is not inconsistent with the purpose of this subchapter, any term or
condition specified in section
7414 of this title, or any rule issued to carry out this
subchapter; and
(2) is necessary to administer the order.
(Pub. L. 104–127, title
V, §516, Apr. 4, 1996, 110
Stat. 1041.)
§7416. Assessments
(a) Assessments authorized
While an order issued under this subchapter is in effect with respect to
an agricultural commodity, assessments shall be—
(1) paid by first handlers with respect to the agricultural commodity
produced and marketed in the United States; and
(2) paid by importers with respect to the agricultural commodity
imported into the United States, if the imported agricultural commodity
is covered by the order pursuant to section
7415(f) of this title.
(b) Collection
Assessments required under an order shall be remitted to the board
established under the order at the time and in the manner prescribed by
the order.
(c) Limitation on assessments
Not more than 1 assessment may be levied on a first handler or importer
under subsection (a) of this section with respect to any agricultural
commodity.
(d) Assessment rates
The board shall recommend to the Secretary 1 or more rates of assessment
to be levied under subsection (a) of this section. If approved by the
Secretary, the rates shall take effect. An order may provide that an
assessment rate may not be increased unless approved by a referendum
conducted pursuant to section
7417 of this title.
(e) Late-payment and interest charges
(1) In general
Late-payment and interest charges may be levied on each person subject
to an order who fails to remit an assessment in accordance with
subsection (b) of this section.
(2) Rate
The rate for the charges shall be specified by the Secretary.
(f) Investment of assessments
Pending disbursement of assessments under a budget approved by the
Secretary, a board may invest assessments collected under this section
in—
(1) obligations of the United States or any agency of the United States;
(2) general obligations of any State or any political subdivision of a
State;
(3) interest-bearing accounts or certificates of deposit of financial
institutions that are members of the Federal Reserve System; or
(4) obligations fully guaranteed as to principal and interest by the
United States.
(g) Refund of assessments from escrow account
(1) Escrow account
During the period beginning on the effective date of an order and ending
on the date the Secretary announces the results of a referendum that is
conducted under section
7417(b)(1) of this title with
respect to the order, the board established under the order shall—
(A) establish and maintain an escrow account of the kind described in
subsection (f)(3) of this section to be used to refund assessments; and
(B) deposit funds in the account in accordance with paragraph (2).
(2) Amount to be deposited
The board shall deposit in the account an amount equal to 10 percent of
the assessments collected during the period referred to in paragraph
(1).
(3) Right to receive refund
Subject to paragraphs (4), (5), and (6), persons subject to an order
shall be eligible to demand a refund of assessments collected during the
period referred to in paragraph (1) if—
(A) the assessments were remitted on behalf of the person; and
(B) the order is not approved in the referendum.
(4) Form of demand
The demand for a refund shall be made at such time and in such form as
specified by the order.
(5) Payment of refund
A person entitled to a refund shall be paid promptly after the board
receives satisfactory proof that the assessment for which the refund is
demanded was paid on behalf of the person who makes the demand.
(6) Proration
If the funds in the escrow account required by paragraph (1) are
insufficient to pay the amount of all refunds that persons subject to an
order otherwise would have a right to receive under this subsection, the
board shall prorate the amount of the funds among all the persons.
(7) Closing of escrow account
If the order is approved in a referendum conducted under section
7417(b)(1) of this title—
(A) the escrow account shall be closed; and
(B) the funds shall be available to the board for disbursement as
authorized in the order.
(Pub. L. 104–127, title
V, §517, Apr. 4, 1996, 110
Stat. 1042.)
§7416a. Confirmation of authority of Secretary of Agriculture to collect
State commodity assessments
(a) Collection from marketing assistance loans
The Secretary of Agriculture shall collect commodity assessments from
the proceeds of a marketing assistance loan for a producer if the
assessment is required to be paid by the producer or the first purchaser
of a commodity pursuant to a State law or pursuant to an authority
administered by the Secretary. This collection authority does not extend
to a State tax or other revenue collection activity by a State.
(b) Collection pursuant to agreement
The collection of an assessment under subsection (a) of this section
shall be made as specified in an agreement between the Secretary of
Agriculture and the State requesting the collection.
(c) Prohibition on charging certain fees
The Secretary may not charge any fees or related costs for the
collection of commodity assessments pursuant to this section.
(Pub. L. 108–470, §1,
Dec. 21, 2004, 118
Stat. 3894; Pub.
L. 110–234, title I,
§1616, May 22, 2008, 122
Stat. 1021;Pub.
L. 110–246, §4(a),
title I, §1616, June 18, 2008, 122
Stat. 1664, 1749.)
Codification
Pub. L. 110–234 and Pub.
L. 110–246 made
identical amendments to this section. The amendments by Pub.
L. 110–234 were
repealed by section 4(a) of Pub.
L. 110–246.
Section was not enacted as part of the Commodity Promotion, Research,
and Information Act of 1996 which comprises this subchapter.
Amendments
2008—Subsec. (a). Pub.
L. 110–246, §1616(1),
substituted “shall” for “may”.
Subsec. (c). Pub.
L. 110–246, §1616(2),
added subsec. (c).
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub.
L. 110–234 by Pub.
L. 110–246 effective
May 22, 2008, the date of enactment of Pub.
L. 110–234, see
section 4 of Pub.
L. 110–246, set out as
an Effective Date note under section
8701 of this title.
§7417. Referenda
(a) Initial referendum
(1) Optional referendum
For the purpose of ascertaining whether the persons to be covered by an
order favor the order going into effect, the order may provide for the
Secretary to conduct an initial referendum among persons to be subject
to an assessment under section
7416 of this title who,
during a representative period determined by the Secretary, engaged in—
(A) the production or handling of the agricultural commodity covered by
the order; or
(B) the importation of the agricultural commodity.
(2) Procedure
The results of the referendum shall be determined in accordance with
subsection (e) of this section. The Secretary may require that the
agricultural commodity industry involved post a bond or other collateral
to cover the cost of the referendum.
(b) Required referenda
(1) In general
For the purpose of ascertaining whether the persons covered by an order
favor the continuation, suspension, or termination of the order, the
Secretary shall conduct a referendum among persons subject to
assessments undersection
7416 of this title who,
during a representative period determined by the Secretary, have engaged
in—
(A) the production or handling of the agricultural commodity covered by
the order; or
(B) the importation of the agricultural commodity.
(2) Time for referendum
The referendum shall be conducted not later than 3 years after
assessments first begin under the order.
(3) Exception
This subsection shall not apply if an initial referendum was conducted
under subsection (a) of this section.
(c) Subsequent referenda
The Secretary shall conduct a subsequent referendum—
(1) not later than 7 years after assessments first begin under the
order;
(2) at the request of the board established under the order; or
(3) at the request of 10 percent or more of the number of persons
eligible to vote under subsection (b)(1) of this section;
to determine if the persons favor the continuation, suspension, or
termination of the order.
(d) Other referenda
The Secretary may conduct a referendum at any time to determine whether
the continuation, suspension, or termination of the order or a provision
of the order is favored by persons eligible to vote under subsection
(b)(1) of this section.
(e) Approval of order
An order may provide for its approval in a referendum—
(1) by a majority of those persons voting;
(2) by persons voting for approval who represent a majority of the
volume of the agricultural commodity; or
(3) by a majority of those persons voting for approval who also
represent a majority of the volume of the agricultural commodity.
(f) Costs of referenda
The board established under an order with respect to which a referendum
is conducted under this section shall reimburse the Secretary for any
expenses incurred by the Secretary to conduct the referendum.
(g) Manner of conducting referenda
(1) In general
A referendum conducted under this section shall be conducted in the
manner determined by the Secretary to be appropriate.
(2) Advance registration
If the Secretary determines that an advance registration of eligible
voters in a referendum is necessary before the voting period in order to
facilitate the conduct of the referendum, the Secretary may institute
the advance registration procedures by mail, or in person through the
use of national and local offices of the Department.
(3) Voting
Eligible voters may vote by mail ballot in the referendum or in person
if so prescribed by the Secretary.
(4) Notice
Not later than 30 days before a referendum is conducted under this
section with respect to an order, the Secretary shall notify the
agricultural commodity industry involved, in such manner as determined
by the Secretary, of the period during which voting in the referendum
will occur. The notice shall explain any registration and voting
procedures established under this subsection.
(Pub. L. 104–127, title
V, §518, Apr. 4, 1996, 110
Stat. 1043.)
§7418. Petition and review of orders
(a) Petition
(1) In general
A person subject to an order issued under this subchapter 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 established in
accordance with law; and
(B) requesting a modification of the order or an exemption from the
order.
(2) Hearing
The Secretary shall give the petitioner an opportunity for a hearing on
the petition, in accordance with regulations issued by the Secretary.
(3) Ruling
After the hearing, the Secretary shall make a ruling on the petition.
The ruling shall be final, subject to review as set forth in subsection
(b) of this section.
(4) Limitation on petition
Any petition filed under this subsection challenging an order, any
provision of the order, or any obligation imposed in connection with the
order, shall be filed within 2 years after the effective date of the
order, provision, or obligation subject to challenge in the petition.
(b) Review
(1) Commencement of action
The district court of the United States for any district in which a
person who is a petitioner under subsection (a) of this section resides
or carries on business shall have jurisdiction to review the final
ruling on the petition of the person, if a complaint for that purpose is
filed not later than 20 days after the date of the entry of the final
ruling by the Secretary under subsection (a)(3) of this section.
(2) Process
Service of process in a proceeding may be made on the Secretary by
delivering a copy of the complaint to the Secretary.
(3) Remands
If the court determines that the ruling is not in accordance with law,
the court shall remand the matter to the Secretary with directions—
(A) to make such ruling as the court determines to be in accordance with
law; or
(B) to take such further action as, in the opinion of the court, the law
requires.
(c) Effect on enforcement proceedings
The pendency of a petition filed under subsection (a) of this section or
an action commenced under subsection (b) of this section shall not
operate as a stay of any action authorized by section
7419 of this title to
be taken to enforce this subchapter, including any rule, order, or
penalty in effect under this subchapter.
(Pub. L. 104–127, title
V, §519, Apr. 4, 1996, 110
Stat. 1044.)
§7419. Enforcement
(a) Jurisdiction
The district courts of the United States shall have jurisdiction
specifically to enforce, and to prevent and restrain a person from
violating, an order or regulation issued under this subchapter.
(b) Referral to Attorney General
A civil action authorized to be brought under this section shall be
referred to the Attorney General for appropriate action, except that the
Secretary shall not be required to refer to the Attorney General a
violation of this subchapter if the Secretary believes that the
administration and enforcement of this subchapter would be adequately
served by providing a suitable written notice or warning to the person
who committed the violation or by an administrative action under this
section.
(c) Civil penalties and orders
(1) Civil penalties
A person who willfully violates an order or regulation issued by the
Secretary under this subchapter may be assessed by the Secretary a civil
penalty of not less than $1,000 and not more than $10,000 for each
violation.
(2) Separate offense
Each violation and each day during which there is a failure to comply
with an order or regulation issued by the Secretary shall be considered
to be a separate offense.
(3) Cease-and-desist orders
In addition to, or in lieu of, a civil penalty, the Secretary may issue
an order requiring a person to cease and desist from violating the order
or regulation.
(4) Notice and hearing
No order assessing a penalty or cease-and-desist order may be issued by
the Secretary under this subsection unless the Secretary provides notice
and an opportunity for a hearing on the record with respect to the
violation.
(5) Finality
An order assessing a penalty or a cease-and-desist order issued under
this subsection by the Secretary shall be final and conclusive unless
the person against whom the order is issued files an appeal from the
order with the United States court of appeals, as provided in subsection
(d) of this section.
(d) Review by court of appeals
(1) In general
A person against whom an order is issued under subsection (c) of this
section may obtain review of the order by—
(A) filing, not later than 30 days after the person receives notice of
the order, a notice of appeal in—
(i) the United States court of appeals for the circuit in which the
person resides or carries on business; or
(ii) the United States Court of Appeals for the District of Columbia
Circuit; and
(B) simultaneously sending a copy of the notice of appeal by certified
mail to the Secretary.
(2) Record
The Secretary shall file with the court a certified copy of the record
on which the Secretary has determined that the person has committed a
violation.
(3) Standard of review
A finding of the Secretary under this section shall be set aside only if
the finding is found to be unsupported by substantial evidence on the
record.
(e) Failure to obey cease-and-desist orders
A person who fails to obey a valid cease-and-desist order issued by the
Secretary under this section, after an opportunity for a hearing, shall
be subject to a civil penalty assessed by the Secretary of not less than
$1,000 and not more than $10,000 for each offense. Each day during which
the failure continues shall be considered to be a separate violation of
the cease-and-desist order.
(f) Failure to pay penalties
If a person fails to pay a civil penalty imposed under this section by
the Secretary, the Secretary shall refer the matter to the Attorney
General for recovery of the amount assessed in the district court of the
United States for any district in which the person resides or carries on
business. In the action, the validity and appropriateness of the order
imposing the civil penalty shall not be subject to review.
(g) Additional remedies
The remedies provided in this section shall be in addition to, and not
exclusive of, other remedies that may be available.
(Pub. L. 104–127, title
V, §520, Apr. 4, 1996, 110
Stat. 1045.)
References in Text
This subchapter, referred to in subsec. (c)(1), was in the original
“this Act” and was translated as reading “this subtitle”, meaning
subtitle B (§§511–526) of title V of Pub.
L. 104–127, Apr. 4,
1996, 110
Stat. 1032, to reflect the probable intent of Congress.
§7420. Investigations and power to subpoena
(a) Investigations
The Secretary may make such investigations as the Secretary considers
necessary—
(1) for the effective administration of this subchapter; or
(2) to determine whether any person subject to this subchapter has
engaged, or is about to engage, in any action that constitutes or will
constitute a violation of this subchapter or any order or regulation
issued under this subchapter.
(b) Subpoenas, oaths, and affirmations
For the purpose of any investigation under subsection (a) of this
section, the Secretary may administer oaths and affirmations, subpoena
witnesses, compel the attendance of witnesses, take evidence, and
require the production of any records or documents that are relevant to
the inquiry. The attendance of witnesses and the production of records
or documents may be required from any place in the United States.
(c) Aid of courts
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 require the attendance and testimony of the person or the
production of records or documents. The court may issue an order
requiring the person to appear before the Secretary to produce records
or documents or to give testimony regarding the matter under
investigation.
(d) Contempt
Any failure to obey the order of the court may be punished by the court
as a contempt of the court.
(e) Process
Process in any case under this section may be served in the judicial
district in which the person resides or carries on business or wherever
the person may be found.
(Pub. L. 104–127, title
V, §521, Apr. 4, 1996, 110
Stat. 1047.)
§7421. Suspension or termination
(a) Mandatory suspension or termination
The Secretary shall suspend or terminate an order or a provision of an
order if the Secretary finds that an order or a provision of an order
obstructs or does not tend to effectuate the purpose of this subchapter,
or if the Secretary determines that the order or a provision of an order
is not favored by persons voting in a referendum conducted undersection
7417 of this title.
(b) Implementation of suspension or termination
If, as a result of a referendum conducted under section
7417 of this title, the Secretary determines that an order is
not approved, the Secretary shall—
(1) not later than 180 days after making the determination, suspend or
terminate, as the case may be, collection of assessments under the
order; and
(2) as soon as practicable, suspend or terminate, as the case may be,
activities under the order in an orderly manner.
(Pub. L. 104–127, title
V, §522, Apr. 4, 1996, 110
Stat. 1047.)
§7422. Amendments to orders
The provisions of this subchapter applicable to an order shall be
applicable to any amendment to an order, except that section
7417 of this title shall
not apply to an amendment.
(Pub. L. 104–127, title
V, §523, Apr. 4, 1996, 110
Stat. 1047.)
§7423. Effect on other laws
This subchapter shall not affect or preempt any other Federal or State
law authorizing promotion or research relating to an agricultural
commodity.
(Pub. L. 104–127, title
V, §524, Apr. 4, 1996, 110
Stat. 1047.)
§7424. Regulations
The Secretary may issue such regulations as may be necessary to carry
out this subchapter and the power vested in the Secretary under this
subchapter.
(Pub. L. 104–127, title
V, §525, Apr. 4, 1996, 110
Stat. 1048.)
§7425. Authorization of appropriations
(a) In general
There are authorized to be appropriated such sums as may be necessary to
carry out this subchapter.
(b) Limitation on expenditures for administrative expenses
Funds appropriated to carry out this subchapter may not be expended for
the payment of expenses incurred by a board to administer an order.
(Pub. L. 104–127, title
V, §526, Apr. 4, 1996, 110
Stat. 1048.)
SUBCHAPTER III—CANOLA AND RAPESEED
§7441. Findings and declaration of policy
(a) Findings
Congress finds that—
(1) canola and rapeseed products are an important and nutritious part of
the human diet;
(2) the production of canola and rapeseed products plays a significant
role in the economy of the United States in that—
(A) canola and rapeseed products are produced by thousands of canola and
rapeseed producers and processed by numerous processing entities; and
(B) canola and rapeseed products produced in the United States are
consumed by people throughout the United States and foreign countries;
(3) canola, rapeseed, and canola and rapeseed products should be readily
available and marketed efficiently to ensure that consumers have an
adequate supply of canola and rapeseed products at a reasonable price;
(4) the maintenance and expansion of existing markets and development of
new markets for canola, rapeseed, and canola and rapeseed products are
vital to the welfare of canola and rapeseed producers and processors and
those persons concerned with marketing canola, rapeseed, and canola and
rapeseed products, as well as to the general economy of the United
States, and are necessary to ensure the ready availability and efficient
marketing of canola, rapeseed, and canola and rapeseed products;
(5) there exist established State and national organizations conducting
canola and rapeseed research, promotion, and consumer education programs
that are valuable to the efforts of promoting the consumption of canola,
rapeseed, and canola and rapeseed products;
(6) the cooperative development, financing, and implementation of a
coordinated national program of canola and rapeseed research, promotion,
consumer information, and industry information is necessary to maintain
and expand existing markets and develop new markets for canola,
rapeseed, and canola and rapeseed products; and
(7) canola, rapeseed, and canola and rapeseed products move in
interstate and foreign commerce, and canola, rapeseed, and canola and
rapeseed products that do not move in interstate or foreign commerce
directly burden or affect interstate commerce in canola, rapeseed, and
canola and rapeseed products.
(b) Policy
It is the policy of this subchapter to establish an orderly procedure
for developing, financing through assessments on domestically produced
canola and rapeseed, and implementing a program of research, promotion,
consumer information, and industry information designed to strengthen
the position in the marketplace of the canola and rapeseed industry, to
maintain and expand existing domestic and foreign markets and uses for
canola, rapeseed, and canola and rapeseed products, and to develop new
markets and uses for canola, rapeseed, and canola and rapeseed products.
(c) Construction
Nothing in this subchapter provides for the control of production or
otherwise limits the right of individual producers to produce canola,
rapeseed, or canola or rapeseed products.
(Pub. L. 104–127, title
V, §532, Apr. 4, 1996, 110
Stat. 1048.)
§7442. Definitions
In this subchapter (unless the context otherwise requires):
(1) Board
The term “Board” means the National Canola and Rapeseed Board
established under section
7444(b) of this title.
(2) Canola; rapeseed
The terms “canola” and “rapeseed” mean any brassica plant grown in the
United States for the production of an oilseed, the oil of which is used
for a food or nonfood use.
(3) Canola or rapeseed product
The term “canola or rapeseed product” means a product produced, in whole
or in part, from canola or rapeseed.
(4) Commerce
The term “commerce” includes interstate, foreign, and intrastate
commerce.
(5) Conflict of interest
The term “conflict of interest” means a situation in which a member of
the Board has a direct or indirect financial interest in a corporation,
partnership, sole proprietorship, joint venture, or other business
entity dealing directly or indirectly with the Board.
(6) Consumer information
The term “consumer information” means information that will assist
consumers and other persons in making evaluations and decisions
regarding the purchase, preparation, and use of canola, rapeseed, or
canola or rapeseed products.
(7) Department
The term “Department” means the Department of Agriculture.
(8) First purchaser
The term “first purchaser” means—
(A) except as provided in subparagraph (B), a person who buys or
otherwise acquires canola, rapeseed, or canola or rapeseed products
produced by a producer; or
(B) the Commodity Credit Corporation, in a case in which canola or
rapeseed is forfeited to the Commodity Credit Corporation as collateral
for a loan issued under a price support loan program administered by the
Commodity Credit Corporation.
(9) Industry information
The term “industry information” means information or a program that will
lead to the development of new markets, new marketing strategies, or
increased efficiency for the canola and rapeseed industry, or an
activity to enhance the image of the canola or rapeseed industry.
(10) Industry member
The term “industry member” means a member of the canola and rapeseed
industry who represents—
(A) manufacturers of canola or rapeseed products; or
(B) persons who commercially buy or sell canola or rapeseed.
(11) Marketing
The term “marketing” means the sale or other disposition of canola,
rapeseed, or canola or rapeseed products in a channel of commerce.
(12) Order
The term “order” means an order issued under section
7443 of this title.
(13) Person
The term “person” means an individual, partnership, corporation,
association, cooperative, or any other legal entity.
(14) Producer
The term “producer” means a person engaged in the growing of canola or
rapeseed in the United States who owns, or who shares the ownership and
risk of loss of, the canola or rapeseed.
(15) Promotion
The term “promotion” means an action, including paid advertising,
technical assistance, or a trade servicing activity, to enhance the
image or desirability of canola, rapeseed, or canola or rapeseed
products in domestic and foreign markets, or an activity designed to
communicate to consumers, processors, wholesalers, retailers, government
officials, or other persons information relating to the positive
attributes of canola, rapeseed, or canola or rapeseed products or the
benefits of use or distribution of canola, rapeseed, or canola or
rapeseed products.
(16) Research
The term “research” means any type of test, study, or analysis to
advance the image, desirability, marketability, production, product
development, quality, or functional or nutritional value of canola,
rapeseed, or canola or rapeseed products, including research activity
designed to identify and analyze barriers to export sales of canola or
rapeseed produced in the United States.
(17) Secretary
The term “Secretary” means the Secretary of Agriculture.
(18) State
The term “State” means any of the 50 States, the District of Columbia
and the Commonwealth of Puerto Rico.
(19) United States
The term “United States” means collectively the 50 States, the District
of Columbia, and the Commonwealth of Puerto Rico.
(Pub. L. 104–127, title
V, §533, Apr. 4, 1996, 110
Stat. 1049.)
§7443. Issuance and amendment of orders
(a) In general
Subject to subsection (b) of this section, the Secretary shall issue 1
or more orders under this subchapter applicable to producers and first
purchasers of canola, rapeseed, or canola or rapeseed products. The
order shall be national in scope. Not more than 1 order shall be in
effect under this subchapter at any 1 time.
(b) Procedure
(1) Proposal or request for issuance
The Secretary may propose the issuance of an order under this
subchapter, or an association of canola and rapeseed producers or any
other person that would be affected by an order issued pursuant to this
subchapter may request the issuance of, and submit a proposal for, an
order.
(2) Notice and comment concerning proposed order
Not later than 60 days after the receipt of a request and proposal for
an order pursuant to paragraph (1), or whenever the Secretary determines
to propose an order, the Secretary shall publish a proposed order and
give due notice and opportunity for public comment on the proposed
order.
(3) Issuance of order
After notice and opportunity for public comment are given as provided in
paragraph (2), the Secretary shall issue an 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 subchapter. The order shall be issued and become
effective not later than 180 days following publication of the proposed
order.
(c) Amendments
The Secretary may amend an order issued under this section.
(Pub. L. 104–127, title
V, §534, Apr. 4, 1996, 110
Stat. 1050.)
§7444. Required terms in orders
(a) In general
An order issued under this subchapter shall contain the terms and
conditions specified in this section.
(b) Establishment and membership of National Canola and Rapeseed Board
(1) In general
The order shall provide for the establishment of, and appointment of
members to, a National Canola and Rapeseed Board to administer the
order.
(2) Service to entire industry
The Board shall carry out programs and projects that will provide
maximum benefit to the canola and rapeseed industry in all parts of the
United States and only promote canola, rapeseed, or canola or rapeseed
products.
(3) Board membership
The Board shall consist of 15 members, including—
(A) 11 members who are producers, including—
(i) 1 member from each of the 6 geographic regions comprised of States
where canola or rapeseed is produced, as determined by the Secretary;
and
(ii) 5 members from the geographic regions referred to in clause (i),
allocated according to the production in each region; and
(B) 4 members who are industry members, including at least—
(i) 1 member who represents manufacturers of canola or rapeseed end
products; and
(ii) 1 member who represents persons who commercially buy or sell canola
or rapeseed.
(4) Limitation on State residence
There shall be no more than 4 producer members of the Board from any 1
State.
(5) Modifying Board membership
In accordance with regulations approved by the Secretary, at least once
each 3 years and not more than once each 2 years, the Board shall review
the geographic distribution of canola and rapeseed production throughout
the United States and, if warranted, recommend to the Secretary that the
Secretary—
(A) reapportion regions in order to reflect the geographic distribution
of canola and rapeseed production; and
(B) reapportion the seats on the Board to reflect the production in each
region.
(6) Certification of organizations
(A) In general
For the purposes of section
7445 of this title, the eligibility of any State organization
to represent producers shall be certified by the Secretary.
(B) Criteria
The Secretary shall certify any State organization that the Secretary
determines has a history of stability and permanency and meets at least
1 of the following criteria:
(i) Majority representation
The total paid membership of the organization—
(I) is comprised of at least a majority of canola or rapeseed producers;
or
(II) represents at least a majority of the canola or rapeseed producers
in the State.
(ii) Substantial number of producers represented
The organization represents a substantial number of producers that
produce a substantial quantity of canola or rapeseed in the State.
(iii) Purpose
The organization is a general farm or agricultural organization that has
as a stated objective the promotion and development of the United States
canola or rapeseed industry and the economic welfare of United States
canola or rapeseed producers.
(C) Report
The Secretary shall make a certification under this paragraph on the
basis of a factual report submitted by the State organization.
(7) Terms of office
(A) In general
A member of the Board shall serve for a term of 3 years, except that the
members appointed to the initial Board shall serve, proportionately, for
terms of 1, 2, and 3 years, as determined by the Secretary.
(B) Limitation on terms
No individual may serve more than 2 consecutive 3-year terms as a
member.
(C) Termination of terms
Notwithstanding subparagraph (B), each member shall continue to serve
until a successor is appointed by the Secretary.
(8) Compensation
A member of the Board shall serve without compensation, but shall be
reimbursed for necessary and reasonable expenses incurred in the
performance of duties for and approved by the Board.
(c) Powers and duties of Board
The order shall define the powers and duties of the Board, which shall
include the power and duty—
(1) to administer the order in accordance with the terms and conditions
of the order;
(2) to issue regulations to effectuate the terms and conditions of the
order;
(3) to meet, organize, and select from among members of the Board a
chairperson, other officers, and committees and subcommittees, as the
Board determines appropriate;
(4) to establish working committees of persons other than Board members;
(5) to employ such persons, other than Board members, as the Board
considers necessary, and to determine the compensation and define the
duties of the persons;
(6) to prepare and submit for the approval of the Secretary, when
appropriate or necessary, a recommended rate of assessment under section
7445 of this title, and a fiscal period budget of the
anticipated expenses in the administration of the order, including the
probable costs of all programs and projects;
(7) to develop programs and projects, subject to subsection (d) of this
section;
(8) to enter into contracts or agreements, subject to subsection (e) of
this section, to develop and carry out programs or projects of research,
promotion, industry information, and consumer information;
(9) to carry out research, promotion, industry information, and consumer
information projects, and to pay the costs of the projects with
assessments collected under section
7445 of this title;
(10) to keep minutes, books, and records that reflect the actions and
transactions of the Board, and promptly report minutes of each Board
meeting to the Secretary;
(11) to appoint and convene, from time to time, working committees
comprised of producers, industry members, and the public to assist in
the development of research, promotion, industry information, and
consumer information programs for canola, rapeseed, and canola and
rapeseed products;
(12) to invest, pending disbursement under a program or project, funds
collected through assessments authorized under section
7445 of this title, or funds earned from investments, only in—
(A) obligations of the United States or an agency of the United States;
(B) general obligations of a State or a political subdivision of a
State;
(C) an 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;
(13) to receive, investigate, and report to the Secretary complaints of
violations of the order;
(14) to furnish the Secretary with such information as the Secretary may
request;
(15) to recommend to the Secretary amendments to the order;
(16) to develop and recommend to the Secretary for approval such
regulations as may be necessary for the development and execution of
programs or projects, or as may otherwise be necessary, to carry out the
order; and
(17) to provide the Secretary with advance notice of meetings.
(d) Programs and budgets
(1) Submission to Secretary
The order shall provide that the Board shall submit to the Secretary for
approval any program or project of research, promotion, consumer
information, or industry information. No program or project shall be
implemented prior to approval by the Secretary.
(2) Budgets
The order shall require the Board, prior to the beginning of each fiscal
year, or as may be necessary after the beginning of a fiscal year, to
submit to the Secretary for approval budgets of anticipated expenses and
disbursements in the implementation of the order, including projected
costs of research, promotion, consumer information, and industry
information programs and projects.
(3) Incurring expenses
The Board may incur such expenses for programs or projects of research,
promotion, consumer information, or industry information, and other
expenses for the administration, maintenance, and functioning of the
Board as may be authorized by the Secretary, including any
implementation, administrative, and referendum costs incurred by the
Department.
(4) Paying expenses
The funds to cover the expenses referred to in paragraph (3) shall be
paid by the Board from assessments collected under section
7445 of this title or
funds borrowed pursuant to paragraph (5).
(5) Authority to borrow
To meet the expenses referred to in paragraph (3), the Board shall have
the authority to borrow funds, as approved by the Secretary, for capital
outlays and startup costs.
(e) Contracts and agreements
(1) In general
To ensure efficient use of funds, the order shall provide that the Board
may enter into a contract or agreement for the implementation and
carrying out of a program or project of canola, rapeseed, or canola or
rapeseed products research, promotion, consumer information, or industry
information, including a contract with a producer organization, and for
the payment of the costs with funds received by the Board under the
order.
(2) Requirements
A contract or agreement under paragraph (1) shall provide that—
(A) the contracting party shall develop and submit to the Board a
program or project together with a budget that shall show the estimated
costs to be incurred for the program or project;
(B) the program or project shall become effective on the approval of the
Secretary; and
(C) the contracting party shall keep accurate records of all
transactions, account for funds received and expended, make periodic
reports to the Board of activities conducted, and make such other
reports as the Board or the Secretary may require.
(3) Producer organizations
The order shall provide that the Board may contract with a producer
organization for any services required in addition to the services
described in paragraph (1). The contract shall include provisions
comparable to the provisions required by paragraph (2).
(f) Books and records of Board
(1) In general
The order shall require the Board 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 Board.
(2) Audits
The Board shall cause the books and records of the Board to be audited
by an independent auditor at the end of each fiscal year, and a report
of the audit to be submitted to the Secretary.
(g) Prohibition
(1) In general
Subject to paragraph (2), the Board shall not engage in any action to,
nor shall any funds received by the Board under this subchapter be used
to—
(A) influence legislation or governmental action;
(B) engage in an action that would be a conflict of interest;
(C) engage in advertising that is false or misleading; or
(D) engage in promotion that would disparage other commodities.
(2) Action permitted
Paragraph (1) does not preclude—
(A) the development and recommendation of amendments to the order;
(B) the communication to appropriate government officials of information
relating to the conduct, implementation, or results of promotion,
research, consumer information, or industry information activities under
the order; or
(C) any action designed to market canola or rapeseed products directly
to a foreign government or political subdivision of a foreign
government.
(h) Books and records
(1) In general
The order shall require that each producer, first purchaser, or industry
member shall—
(A) maintain and submit to the Board any reports considered necessary by
the Secretary to ensure compliance with this subchapter; and
(B) make available during normal business hours, for inspection by
employees of the Board or Secretary, such books and records as are
necessary to carry out this subchapter, including such records as are
necessary to verify any required reports.
(2) Confidentiality
(A) In general
Except as otherwise provided in this subchapter, all information
obtained from books, records, or reports required to be maintained under
paragraph (1) shall be kept confidential, and shall not be disclosed to
the public by any person.
(B) Disclosure
Information referred to in subparagraph (A) may be disclosed to the
public if—
(i) the Secretary considers the information relevant;
(ii) the information is revealed in a suit or administrative hearing
brought at the direction or on the request of the Secretary or to which
the Secretary or any officer of the Department is a party; and
(iii) the information relates to this subchapter.
(C) Misconduct
A knowing disclosure of confidential information in violation of
subparagraph (A) by an officer or employee of the Board or Department,
except as required by other law or allowed under subparagraph (B) or
(D), shall be considered a violation of this subchapter.
(D) General statements
Nothing in this paragraph prohibits—
(i) the issuance of general statements based on the reports of a number
of persons subject to an order or statistical data collected from the
reports, if the statements do not identify the information furnished by
any person; or
(ii) the publication, by direction of the Secretary, of the name of a
person violating the order, together with a statement of the particular
provisions of the order violated by the person.
(3) Availability of information for law enforcement
Information obtained under this subchapter may be made available to
another agency of the Federal Government for a civil or criminal law
enforcement activity if the activity is authorized by law and if the
head of the agency has made a written request to the Secretary
specifying the particular information desired and the law enforcement
activity for which the information is sought.
(4) Penalty
Any person knowingly violating this subsection, on conviction, shall be
subject to a fine of not more than $1,000 or to imprisonment for not
more than 1 year, or both, and if an officer or employee of the Board or
the Department, shall be removed from office or terminated from
employment, as applicable.
(5) Withholding of information
Nothing in this subchapter authorizes the withholding of information
from Congress.
(i) Use of assessments
The order shall provide that the assessments collected under section
7445 of this title shall
be used for payment of the expenses in implementing and administering
this subchapter, with provision for a reasonable reserve, and to cover
administrative costs incurred by the Secretary in implementing and
administering this subchapter.
(j) Other terms and conditions
The order shall contain such other terms and conditions, not
inconsistent with this subchapter, as are determined necessary by the
Secretary to effectuate this subchapter.
(Pub. L. 104–127, title
V, §535, Apr. 4, 1996, 110
Stat. 1051.)
§7445. Assessments
(a) In general
(1) First purchasers
During the effective period of an order issued pursuant to this
subchapter, assessments shall be—
(A) levied on all canola or rapeseed produced in the United States and
marketed; and
(B) deducted from the payment made to a producer for all canola or
rapeseed sold to a first purchaser.
(2) Direct processing
The order shall provide that any person processing canola or rapeseed of
that person's own production and marketing the canola or rapeseed, or
canola or rapeseed products, shall remit to the Board or a State
organization certified to represent producers under section
7444(b)(6) of this title, in the manner prescribed by the
order, an assessment established at a rate equivalent to the rate
provided for under subsection (d) of this section.
(b) Limitation on assessments
No more than 1 assessment may be assessed under subsection (a) of this
section on any canola or rapeseed produced (as remitted by a first
purchaser).
(c) Remitting of assessments
(1) In general
Assessments required under subsection (a) of this section shall be
remitted to the Board by a first purchaser. The Board shall use State
organizations certified to represent producers under section
7444(b)(6) of this title to
collect the assessments. If an appropriate certified State organization
does not exist to collect an assessment, the assessment shall be
collected by the Board. There shall be only 1 certified State
organization in each State.
(2) Times to remit assessment
Each first purchaser shall remit the assessment to the Board as provided
for in the order.
(d) Assessment rate
(1) Initial rate
The initial assessment rate shall be 4 cents per hundredweight of canola
or rapeseed produced and marketed.
(2) Increase
The assessment rate may be increased on recommendation by the Board to a
rate not exceeding 10 cents per hundredweight of canola or rapeseed
produced and marketed in a State, unless—
(A) after the initial referendum is held under section
7446(a) of this title, the Board recommends an increase above
10 cents per hundredweight; and
(B) the increase is approved in a referendum under section
7446(b) of this title.
(3) Credit
A producer who demonstrates to the Board that the producer is
participating in a program of a State organization certified to
represent producers under section
7444(b)(6) of this title shall
receive credit, in determining the assessment due from the producer, for
contributions to the program of up to 2 cents per hundredweight of
canola or rapeseed marketed.
(e) Late payment charge
(1) In general
There shall be a late payment charge imposed on any person who fails to
remit, on or before the date provided for in the order, to the Board the
total amount for which the person is liable.
(2) Amount of charge
The amount of the late payment charge imposed under paragraph (1) shall
be prescribed by the Board with the approval of the Secretary.
(f) Refund of assessments from escrow account
(1) Establishment of escrow account
During the period beginning on the date on which an order is first
issued under section
7443(b)(3) of this title and
ending on the date on which a referendum is conducted under section
7446(a) of this title, the Board shall—
(A) establish and maintain an escrow account to be used for assessment
refunds; and
(B) place funds in the account in accordance with paragraph (2).
(2) Placement of funds in account
The Board shall place in the account, from assessments collected during
the period referred to in paragraph (1), an amount equal to the product
obtained by multiplying the total amount of assessments collected during
the period by 10 percent.
(3) Right to receive refund
The Board shall refund to a producer the assessments paid by or on
behalf of the producer if—
(A) the producer is required to pay the assessment;
(B) the producer does not support the program established under this
subchapter; and
(C) the producer demands the refund prior to the conduct of the
referendum under section
7446(a) of this title.
(4) Form of demand
The demand shall be made in accordance with such regulations, in such
form, and within such time period as prescribed by the Board.
(5) Making of refund
The refund shall be made on submission of proof satisfactory to the
Board that the producer paid the assessment for which the refund is
demanded.
(6) Proration
If—
(A) the amount in the escrow account required by paragraph (1) is not
sufficient to refund the total amount of assessments demanded by
eligible producers; and
(B) the order is not approved pursuant to the referendum conducted under section
7446(a) of this title;
the Board shall prorate the amount of the refunds among all eligible
producers who demand a refund.
(7) Program approved
If the plan is approved pursuant to the referendum conducted under section
7446(a) of this title, all funds in the escrow account shall be
returned to the Board for use by the Board in accordance with this
subchapter.
(Pub. L. 104–127, title
V, §536, Apr. 4, 1996, 110
Stat. 1056.)
§7446. Referenda
(a) Initial referendum
(1) Requirement
During the period ending 30 months after the date on which an order is
first issued under section
7443(b)(3) of this title, the Secretary shall conduct a
referendum among producers who, during a representative period as
determined by the Secretary, have been engaged in the production of
canola or rapeseed for the purpose of ascertaining whether the order
then in effect shall be continued.
(2) Advance notice
The Secretary shall, to the extent practicable, provide broad public
notice in advance of any referendum. The notice shall be provided,
without advertising expenses, by means of newspapers, county
newsletters, the electronic media, and press releases, through the use
of notices posted in State and county cooperative extension offices and
county Consolidated Farm Service Agency offices, and by other
appropriate means specified in the order. The notice shall contain
information on when the referendum will be held, registration and voting
requirements, rules regarding absentee voting, and other pertinent
information.
(3) Approval of order
The order shall be continued only if the Secretary determines that the
order has been approved by not less than a majority of the producers
voting in the referendum.
(4) Disapproval of order
If continuation of the order is not approved by a majority of the
producers voting in the referendum, the Secretary shall terminate
collection of assessments under the order within 180 days after the
referendum and shall terminate the order in an orderly manner as soon as
practicable.
(b) Additional referenda
(1) In general
(A) Requirement
After the initial referendum on an order, the Secretary shall conduct
additional referenda, as described in subparagraph (C), if requested by
a representative group of producers, as described in subparagraph (B).
(B) Representative group of producers
An additional referendum on an order shall be conducted if requested by
10 percent or more of the producers who, during a representative period
as determined by the Secretary, have been engaged in the production of
canola or rapeseed.
(C) Eligible producers
Each additional referendum shall be conducted among all producers who,
during a representative period as determined by the Secretary, have been
engaged in the production of canola or rapeseed to determine whether the
producers favor the termination or suspension of the order.
(2) Disapproval of order
If the Secretary determines, in a referendum conducted under paragraph
(1), that suspension or termination of the order is favored by a
majority of the producers voting in the referendum, the Secretary shall
suspend or terminate, as appropriate, collection of assessments under
the order within 180 days after the determination, and shall suspend or
terminate the order, as appropriate, in an orderly manner as soon as
practicable after the determination.
(3) Opportunity to request additional referenda
(A) In general
Beginning on the date that is 5 years after the conduct of a referendum
under this subchapter, and every 5 years thereafter, the Secretary shall
provide canola and rapeseed producers an opportunity to request an
additional referendum.
(B) Method of making request
(i) In-person requests
To carry out subparagraph (A), the Secretary shall establish a procedure
under which a producer may make a request for a reconfirmation
referendum in person at a county cooperative extension office or a
county Consolidated Farm Service Agency office during a period
established by the Secretary, or as provided in clause (ii).
(ii) Mail-in requests
In lieu of making a request in person, a producer may make a request by
mail. To facilitate the submission of requests by mail, the Secretary
may make mail-in request forms available to producers.
(C) Notifications
The Secretary shall publish a notice in the Federal Register, and the
Board shall provide written notification to producers, not later than 60
days prior to the end of the period established under subparagraph
(B)(i) for an in-person request, of the opportunity of producers to
request an additional referendum. The notification shall explain the
right of producers to an additional referendum, the procedure for a
referendum, the purpose of a referendum, and the date and method by
which producers may act to request an additional referendum under this
paragraph. The Secretary shall take such other action as the Secretary
determines is necessary to ensure that producers are made aware of the
opportunity to request an additional referendum.
(D) Action by Secretary
As soon as practicable following the submission of a request for an
additional referendum, the Secretary shall determine whether a
sufficient number of producers have requested the referendum, and take
such steps as are necessary to conduct the referendum, as required under
paragraph (1).
(E) Time limit
An additional referendum requested under the procedures provided in this
paragraph shall be conducted not later than 1 year after the Secretary
determines that a representative group of producers, as described in
paragraph (1)(B), have requested the conduct of the referendum.
(c) Procedures
(1) Reimbursement of Secretary
The Secretary shall be reimbursed from assessments collected by the
Board for any expenses incurred by the Secretary in connection with the
conduct of an activity required under this section.
(2) Date
Each referendum shall be conducted for a reasonable period of time not
to exceed 3 days, established by the Secretary, under a procedure under
which producers intending to vote in the referendum shall certify that
the producers were engaged in the production of canola, rapeseed, or
canola or rapeseed products during the representative period and, at the
same time, shall be provided an opportunity to vote in the referendum.
(3) Place
Referenda under this section shall be conducted at locations determined
by the Secretary. On request, absentee mail ballots shall be furnished
by the Secretary in a manner prescribed by the Secretary.
(Pub. L. 104–127, title
V, §537, Apr. 4, 1996, 110
Stat. 1058; Pub.
L. 110–234, title VII,
§7511(c)(28), May 22, 2008,122
Stat. 1270; Pub.
L. 110–246, §4(a),
title VII, §7511(c)(28), June 18, 2008, 122
Stat. 1664, 2031.)
Codification
Pub. L. 110–234 and Pub.
L. 110–246 made
identical amendments to this section. The amendments by Pub.
L. 110–234 were
repealed by section 4(a) of Pub.
L. 110–246.
Amendments
2008—Subsecs. (a)(2), (b)(3)(B)(i). Pub.
L. 110–246, §7511(c)(28),
substituted “cooperative extension” for “Cooperative State Research,
Education, and Extension Service”.
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub.
L. 110–234 by Pub.
L. 110–246 effective
May 22, 2008, the date of enactment of Pub.
L. 110–234, except as
otherwise provided, see section 4 of Pub.
L. 110–246, set out as
an Effective Date note under section
8701 of this title.
Amendment by section 7511(c)(28) of Pub.
L. 110–246 effective
Oct. 1, 2009, see section 7511(c) of Pub.
L. 110–246, set out as
a note under section
1522 of this title.
§7447. Petition and review
(a) Petition
(1) In general
A person subject to an order issued under this subchapter may file with
the Secretary a petition—
(A) stating that the order, a provision of the order, or an obligation
imposed in connection with the order is not established in accordance
with law; and
(B) requesting a modification of the order or an exemption from the
order.
(2) Hearings
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.
(3) Ruling
After a hearing under paragraph (2), the Secretary shall issue a ruling
on the petition that is the subject of the hearing, which shall be final
if the ruling is in accordance with applicable law.
(4) Limitation on petition
Any petition filed under this subchapter challenging an order, or any
obligation imposed in connection with an order, shall be filed not later
than 2 years after the effective date of the order or imposition of the
obligation.
(b) Review
(1) Commencement of action
The district court of the United States for any district in which the
person who is a petitioner under subsection (a) of this section resides
or carries on business shall have jurisdiction to review a ruling on the
petition, if a complaint is filed by the person not later than 20 days
after the date of the entry of a ruling by the Secretary under
subsection (a)(3) of this section.
(2) Process
Service of process in a proceeding under paragraph (1) shall be
conducted in accordance with the Federal Rules of Civil Procedure.
(3) Remands
If the court determines, under paragraph (1), that a ruling issued under
subsection (a)(3) of this section is not in accordance with applicable
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 proceedings as, in the opinion of the court,
the law requires.
(4) Enforcement
The pendency of proceedings instituted under subsection (a) of this
section shall not impede, hinder, or delay the Attorney General or the
Secretary from taking any action under section
7448 of this title.
(Pub. L. 104–127, title
V, §538, Apr. 4, 1996, 110
Stat. 1060.)
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
§7448. Enforcement
(a) Jurisdiction
The district courts of the United States are vested with jurisdiction
specifically to enforce, and to prevent and restrain any person from
violating, an order or regulation made or issued under this subchapter.
(b) Referral to Attorney General
A civil action authorized to be commenced under this section shall be
referred to the Attorney General for appropriate action, except that the
Secretary shall not be required to refer to the Attorney General a
violation of this subchapter if the Secretary believes that the
administration and enforcement of this subchapter would be adequately
served by providing a suitable written notice or warning to the person
committing the violation or by administrative action under subsection
(c) of this section.
(c) Civil penalties and orders
(1) Civil penalties
(A) In general
Any person who willfully violates any provision of an order or
regulation issued by the Secretary under this subchapter, or who fails
or refuses to pay, collect, or remit an assessment or fee required of
the person under an order or regulation, may be assessed—
(i) a civil penalty by the Secretary of not more than $1,000 for each
violation; and
(ii) in the case of a willful failure to pay, collect, or remit an
assessment as required by an order or regulation, an additional penalty
equal to the amount of the assessment.
(B) Separate offense
Each violation under subparagraph (A) shall be a separate offense.
(2) 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.
(3) Notice and hearing
No penalty shall be assessed, or cease-and-desist order issued, by the
Secretary under this subsection unless the person against whom the
penalty is assessed or the cease-and-desist order is issued is given
notice and opportunity for a hearing before the Secretary with respect
to the violation.
(4) Finality
The order of the Secretary assessing a penalty or imposing a
cease-and-desist order under this subsection shall be final and
conclusive unless the affected person files an appeal of the order in
the appropriate district court of the United States in accordance with
subsection (d) of this section.
(d) Review by district court
(1) Commencement of action
Any person who has been determined to be in violation of this
subchapter, or against whom a civil penalty has been assessed or a
cease-and-desist order issued under subsection (c) of this section, may
obtain review of the penalty or cease-and-desist order by—
(A) filing, within the 30-day period beginning on the date the penalty
is assessed or cease-and-desist order issued, a notice of appeal in—
(i) the district court of the United States for the district in which
the person resides or carries on business; or
(ii) 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) Record
The Secretary shall file promptly, in the appropriate court referred to
in paragraph (1), a certified copy of the record on which the Secretary
determined that the person committed the violation.
(3) Standard of review
A finding of the Secretary under this section shall be set aside only if
the finding is found to be unsupported by substantial evidence.
(e) Failure to obey cease-and-desist orders
Any person who fails to obey a cease-and-desist order issued under this
section after the cease-and-desist 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, after opportunity for a
hearing and for judicial review under the procedures specified in
subsections (c) and (d) of this section, of not more than $5,000 for
each offense. Each day during which the failure continues shall be
considered as a separate violation of the cease-and-desist order.
(f) Failure to pay penalties
If a person fails to pay an assessment of a civil penalty under this
section after the assessment has become a final and unappealable order,
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 the
district court of the United States for any district in which the person
resides or carries on business. In an action for recovery, the validity
and appropriateness of the final order imposing the civil penalty shall
not be subject to review.
(g) Additional remedies
The remedies provided in this subchapter shall be in addition to, and
not exclusive of, other remedies that may be available.
(Pub. L. 104–127, title
V, §539, Apr. 4, 1996, 110
Stat. 1061.)
§7449. Investigations and power to subpoena
(a) Investigations
The Secretary may make such investigations as the Secretary considers
necessary—
(1) for the effective administration of this subchapter; and
(2) to determine whether any person has engaged or is engaging in an act
that constitutes a violation of this subchapter, or an order, rule, or
regulation issued under this subchapter.
(b) Subpoenas, oaths, and affirmations
(1) In general
For the purpose of an investigation under subsection (a) of this
section, the Secretary may administer oaths and affirmations, subpoena
witnesses, take evidence, and issue subpoenas to require the production
of any records that are relevant to the inquiry. The attendance of
witnesses and the production of records may be required from any place
in the United States.
(2) Administrative hearings
For the purpose of an administrative hearing held under section
7447 or 7448 of this title, the presiding officer is authorized
to administer oaths and affirmations, subpoena and compel the attendance
of witnesses, take evidence, and require the production of any records
that are relevant to the inquiry. The attendance of witnesses and the
production of records may be required from any place in the United
States.
(c) Aid of courts
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 by the Secretary under subsection (b)
of this section. The court may issue an order requiring the person to
comply with the subpoena.
(d) Contempt
A failure to obey an order of the court under this section may be
punished by the court as contempt of the court.
(e) Process
Process may be served on a person in the judicial district in which the
person resides or carries on business or wherever the person may be
found.
(f) Hearing site
The site of a hearing held under section
7447 or 7448 of this title shall
be in the judicial district where the person affected by the hearing
resides or has a principal place of business.
(Pub. L. 104–127, title
V, §540, Apr. 4, 1996, 110
Stat. 1062.)
§7450. Suspension or termination
The Secretary shall, whenever the Secretary finds that an order or a
provision of an order obstructs or does not tend to effectuate the
declared policy of this subchapter, suspend or terminate the operation
of the order or provision. The suspension or termination of an order
shall not be considered an order within the meaning of this subchapter.
(Pub. L. 104–127, title
V, §541, Apr. 4, 1996, 110
Stat. 1063.)
§7451. Regulations
The Secretary may issue such regulations as are necessary to carry out
this subchapter.
(Pub. L. 104–127, title
V, §542, Apr. 4, 1996, 110
Stat. 1063.)
§7452. Authorization of appropriations
(a) In general
There are authorized to be appropriated for each fiscal year such sums
as are necessary to carry out this subchapter.
(b) Administrative expenses
Funds appropriated under subsection (a) of this section shall not be
available for payment of the expenses or expenditures of the Board in
administering a provision of an order issued under this subchapter.
(Pub. L. 104–127, title
V, §543, Apr. 4, 1996, 110
Stat. 1063.)
SUBCHAPTER IV—KIWIFRUIT
§7461. Findings and purposes
(a) Findings
Congress finds that—
(1) domestically produced kiwifruit are grown by many individual
producers;
(2) virtually all domestically produced kiwifruit are grown in the State
of California, although there is potential for production in many other
areas of the United States;
(3) kiwifruit move in interstate and foreign commerce, and kiwifruit
that do not move in channels of commerce directly burden or affect
interstate commerce;
(4) in recent years, large quantities of kiwifruit have been imported
into the United States;
(5) the maintenance and expansion of existing domestic and foreign
markets for kiwifruit, and the development of additional and improved
markets for kiwifruit, are vital to the welfare of kiwifruit producers
and other persons concerned with producing, marketing, and processing
kiwifruit;
(6) a coordinated program of research, promotion, and consumer
information regarding kiwifruit is necessary for the maintenance and
development of the markets; and
(7) kiwifruit producers, handlers, and importers are unable to implement
and finance such a program without cooperative action.
(b) Purposes
The purposes of this subchapter are—
(1) to authorize the establishment of an orderly procedure for the
development and financing (through an assessment) of an effective and
coordinated program of research, promotion, and consumer information
regarding kiwifruit;
(2) to use the program to strengthen the position of the kiwifruit
industry in domestic and foreign markets and maintain, develop, and
expand markets for kiwifruit; and
(3) to treat domestically produced kiwifruit and imported kiwifruit
equitably.
(Pub. L. 104–127, title
V, §552, Apr. 4, 1996, 110
Stat. 1064.)
§7462. Definitions
In this subchapter (unless the context otherwise requires):
(1) Board
The term “Board” means the National Kiwifruit Board established under section
7464 of this title.
(2) Consumer information
The term “consumer information” means any action taken to provide
information to, and broaden the understanding of, the general public
regarding the consumption, use, nutritional attributes, and care of
kiwifruit.
(3) Exporter
The term “exporter” means any person from outside the United States who
exports kiwifruit into the United States.
(4) Handler
The term “handler” means any person, excluding a common carrier, engaged
in the business of buying and selling, packing, marketing, or
distributing kiwifruit as specified in the order.
(5) Importer
The term “importer” means any person who imports kiwifruit into the
United States.
(6) Kiwifruit
The term “kiwifruit” means all varieties of fresh kiwifruit grown in or
imported into the United States.
(7) Marketing
The term “marketing” means the sale or other disposition of kiwifruit
into interstate, foreign, or intrastate commerce by buying, marketing,
distribution, or otherwise placing kiwifruit into commerce.
(8) Order
The term “order” means a kiwifruit research, promotion, and consumer
information order issued by the Secretary under section
7463 of this title.
(9) Person
The term “person” means any individual, group of individuals,
partnership, corporation, association, cooperative, or other legal
entity.
(10) Processing
The term “processing” means canning, fermenting, distilling, extracting,
preserving, grinding, crushing, or in any manner changing the form of
kiwifruit for the purpose of preparing the kiwifruit for market or
marketing the kiwifruit.
(11) Producer
The term “producer” means any person who grows kiwifruit in the United
States for sale in commerce.
(12) Promotion
The term “promotion” means any action taken under this subchapter
(including paid advertising) to present a favorable image of kiwifruit
to the general public for the purpose of improving the competitive
position of kiwifruit and stimulating the sale of kiwifruit.
(13) Research
The term “research” means any type of research relating to the use,
nutritional value, and marketing of kiwifruit conducted for the purpose
of advancing the image, desirability, marketability, or quality of
kiwifruit.
(14) Secretary
The term “Secretary” means the Secretary of Agriculture.
(15) United States
The term “United States” means the 50 States of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico.
(Pub. L. 104–127, title
V, §553, Apr. 4, 1996, 110
Stat. 1064.)
§7463. Issuance of orders
(a) Issuance
To effectuate the purposes of this subchapter specified in section
7461(b) of this title, the Secretary shall issue an order
applicable to producers, handlers, and importers of kiwifruit. Any such
order shall be national in scope. Not more than 1 order shall be in
effect under this subchapter at any 1 time.
(b) Procedure
(1) Proposal for issuance of order
Any person that will be affected by this subchapter may request the
issuance of, and submit a proposal for, an order under this subchapter.
(2) Proposed order
Not later than 90 days after the receipt of a request and proposal for
an order, the Secretary shall publish a proposed order and give due
notice and opportunity for public comment on the proposed order.
(3) Issuance of order
After notice and opportunity for public comment are provided under
paragraph (2), the Secretary shall issue an order, taking into
consideration the comments received and including in the order
provisions necessary to ensure that the order is in conformity with this
subchapter.
(c) Amendments
The Secretary may amend any order issued under this section. The
provisions of this subchapter applicable to an order shall be applicable
to an amendment to an order, except that an amendment to an order shall
not require a referendum to become effective.
(Pub. L. 104–127, title
V, §554, Apr. 4, 1996, 110
Stat. 1065; Pub.
L. 105–185, title VI,
§603(a), June 23, 1998, 112
Stat. 585.)
Amendments
1998—Subsec. (c). Pub.
L. 105–185 inserted
“, except that an amendment to an order shall not require a referendum
to become effective” before period at end.
§7464. National Kiwifruit Board
(a) Membership
An order issued by the Secretary under section
7463 of this title shall
provide for the establishment of a National Kiwifruit Board that
consists of the following 11 members:
(1) 10 members who are producers, exporters, or importers (or their
representatives), based on a proportional representation of the level of
domestic production and imports of kiwifruit (as determined by the
Secretary).
(2) 1 member appointed from the general public.
(b) Adjustment of membership
Subject to the 11-member limit, the Secretary may adjust membership on
the Board to accommodate changes in production and import levels of
kiwifruit.
(c) Appointment and nomination
(1) Appointment
The Secretary shall appoint the members of the Board from nominations
submitted in accordance with this subsection.
(2) Producers
The members who are producers referred to in subsection (a)(1) of this
section shall be appointed from individuals nominated by producers.
(3) Importers and exporters
The members who are importers or exporters referred to in subsection
(a)(1) of this section shall be appointed from individuals nominated by
importers or exporters.
(4) Public representative
The public representative shall be appointed from nominations submitted
by other members of the Board.
(5) Failure to nominate
If producers, importers, and exporters fail to nominate individuals for
appointment, the Secretary may appoint members and alternates on a basis
provided for in the order. If the Board fails to nominate a public
representative, the member and alternate may be appointed by the
Secretary without a nomination.
(d) Alternates
The Secretary shall appoint an alternate for each member of the Board.
An alternate shall—
(1) be appointed in the same manner as the member for whom the
individual is an alternate; and
(2) serve on the Board if the member is absent from a meeting or is
disqualified under subsection (f) of this section.
(e) Terms
A member of the Board shall be appointed for a term of 3 years. No
member may serve more than 2 consecutive 3-year terms, except that of
the members first appointed—
(1) 5 members shall be appointed for a term of 2 years; and
(2) 6 members shall be appointed for a term of 3 years.
(f) Disqualification
If a member or alternate of the Board who was appointed as a producer,
importer, exporter, or public representative member ceases to belong to
the group for which the member was appointed, the member or alternate
shall be disqualified from serving on the Board.
(g) Compensation
A member or alternate of the Board shall serve without pay.
(h) General powers and duties
The Board shall—
(1) administer an order issued by the Secretary under section
7463 of this title, and an amendment to the order, in
accordance with the order and amendment and this subchapter;
(2) prescribe rules and regulations to carry out the order;
(3) meet, organize, and select from among members of the Board a
chairperson, other officers, and committees and subcommittees, as the
Board determines appropriate;
(4) receive, investigate, and report to the Secretary accounts of
violations of the order;
(5) make recommendations to the Secretary with respect to an amendment
that should be made to the order; and
(6) employ or contract with a manager and staff to assist in
administering the order, except that, to reduce administrative costs and
increase efficiency, the Board shall seek, to the extent practicable, to
employ or contract with personnel who are already associated with
organizations involved in promoting kiwifruit that are chartered by a
State, the District of Columbia, or the Commonwealth of Puerto Rico.
(Pub. L. 104–127, title
V, §555, Apr. 4, 1996, 110
Stat. 1066; Pub.
L. 105–185, title VI,
§603(b), June 23, 1998, 112
Stat. 585.)
Amendments
1998—Subsec. (a). Pub.
L. 105–185, §603(b)(1),
added pars. (1) and (2) and struck out former pars. (1) to (3) which
read as follows:
“(1) 6 members who are producers (or representatives of producers) and
who are not exempt from an assessment under section
7465(b) of this title.
“(2) 4 members who are importers (or representatives of importers) and
who are not exempt from an assessment under section
7465(b) of this title or
are exporters (or representatives of exporters).
“(3) 1 member appointed from the general public.”
Subsec. (b). Pub.
L. 105–185, §603(b)(2),
struck out par. (1) designation and heading, struck out “and to
paragraph (2)” after “11-member limit”, and struck out heading and text
of par. (2). Text read as follows: “Producers shall comprise not less
than 51 percent of the membership of the Board.”
Subsec. (c)(2). Pub.
L. 105–185, §603(b)(3)(A),
inserted “who are producers” after “members”.
Subsec. (c)(3). Pub.
L. 105–185, §603(b)(3)(B),
inserted “who are importers or exporters” after “members” and
substituted “(a)(1)” for “(a)(2)”.
Subsec. (c)(5). Pub.
L. 105–185, §603(b)(3)(C),
inserted “and alternate” before “may be appointed” in second sentence.
§7465. Required terms in order
(a) Budgets and plans
(1) In general
An order issued under section
7463 of this title shall
provide for periodic budgets and plans in accordance with this
subsection.
(2) Budgets
The Board shall prepare and submit to the Secretary a budget prior to
the beginning of the fiscal year of the anticipated expenses and
disbursements of the Board in the administration of the order, including
probable costs of research, promotion, and consumer information. A
budget shall become effective on a 2/3-vote of a quorum of the Board and
approval by the Secretary.
(3) Plans
Each budget shall include a plan for research, promotion, and consumer
information regarding kiwifruit. A plan under this paragraph shall
become effective on approval by the Secretary. The Board may enter into
contracts and agreements, on approval by the Secretary, for—
(A) the development and carrying out of the plan; and
(B) the payment of the cost of the plan, with funds collected pursuant
to this subchapter.
(b) Assessments
(1) In general
The order shall provide for the imposition and collection of assessments
with regard to the production and importation of kiwifruit in accordance
with this subsection.
(2) Rate
The assessment rate shall be the rate that is recommended by a 2/3-vote
of a quorum of the Board and approved by the Secretary, except that the
rate shall not exceed $0.10 per 7-pound tray of kiwifruit or an
equivalent rate.
(3) Collection by first handlers
Except as provided in paragraph (5), the first handler of kiwifruit
shall—
(A) be responsible for the collection from the producer, and payment to
the Board, of assessments required under this subsection; and
(B) maintain a separate record of the kiwifruit of each producer whose
kiwifruit are so handled, including the kiwifruit owned by the handler.
(4) Importers
The assessment on imported kiwifruit shall be paid by the importer to
the United States Customs Service at the time of entry into the United
States and shall be remitted to the Board.
(5) Exemption from assessment
The following persons or activities are exempt from an assessment under
this subsection:
(A) A producer who produces less than 500 pounds of kiwifruit per year.
(B) An importer who imports less than 10,000 pounds of kiwifruit per
year.
(C) A sale of kiwifruit made directly from the producer to a consumer
for a purpose other than resale.
(D) The production or importation of kiwifruit for processing.
(6) Claim of exemption
To claim an exemption under paragraph (5) for a particular year, a
person shall—
(A) submit an application to the Board stating the basis for the
exemption and certifying that the quantity of kiwifruit produced,
imported, or sold by the person will not exceed any poundage limitation
required for the exemption in the year; or
(B) be on a list of approved processors developed by the Board.
(c) Use of assessments
(1) Authorized uses
The order shall provide that funds paid to the Board as assessments
under subsection (b) of this section may be used by the Board—
(A) to pay for research, promotion, and consumer information described
in the budget of the Board under subsection (a) of this section and for
other expenses incurred by the Board in the administration of an order;
(B) to pay such other expenses for the administration, maintenance, and
functioning of the Board (including any enforcement efforts for the
collection of assessments) as may be authorized by the Secretary,
including interest and penalties for late payments; and
(C) to fund a reserve established under section
7466(d) of this title.
(2) Required uses
The order shall provide that funds paid to the Board as assessments
under subsection (b) of this section shall be used by the Board—
(A) to pay the expenses incurred by the Secretary, including salaries
and expenses of Federal Government employees, in implementing and
administering the order; and
(B) to reimburse the Secretary for any expenses incurred by the
Secretary in conducting referenda under this subchapter.
(3) Limitation on use of assessments
Except for the first year of operation of the Board, expenses for the
administration, maintenance, and functioning of the Board may not exceed
30 percent of the budget for a year.
(d) False claims
The order shall provide that any promotion funded with assessments
collected under subsection (b) of this section may not make—
(1) any false claims on behalf of kiwifruit; and
(2) any false statements with respect to the attributes or use of any
product that competes with kiwifruit for sale in commerce.
(e) Prohibition on use of funds
The order shall provide that funds collected by the Board under this
subchapter through assessments may not, in any manner, be used for the
purpose of influencing legislation or governmental policy or action,
except for making recommendations to the Secretary as provided for under
this subchapter.
(f) Books, records, and reports
(1) Board
The order shall require the Board—
(A) to maintain books and records with respect to the receipt and
disbursement of funds received by the Board;
(B) to submit to the Secretary from time to time such reports as the
Secretary may require for appropriate accounting; and
(C) to submit to the Secretary at the end of each fiscal year a complete
audit report by an independent auditor regarding the activities of the
Board during the fiscal year.
(2) Others
To make information and data available to the Board and the Secretary
that is appropriate or necessary for the effectuation, administration,
or enforcement of this subchapter (or any order or regulation issued
under this subchapter), the order shall require handlers and importers
who are responsible for the collection, payment, or remittance of
assessments under subsection (b) of this section—
(A) to maintain and make available for inspection by the employees and
agents of the Board and the Secretary such books and records as may be
required by the order; and
(B) to file, at the times and in the manner and content prescribed by
the order, reports regarding the collection, payment, or remittance of
the assessments.
(g) Confidentiality
(1) In general
The order shall require that all information obtained pursuant to
subsection (f)(2) of this section be kept confidential by all officers,
employees, and agents of the Department of Agriculture and of the Board.
Only such information as the Secretary considers relevant shall be
disclosed to the public and 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, involving the order with
respect to which the information was furnished or acquired.
(2) Limitations
Nothing in this subsection prohibits—
(A) the issuance of general statements based on the reports of a number
of handlers and importers subject to an order, if the statements do not
identify the information furnished by any person; or
(B) the publication, by direction of the Secretary, of the name of any
person violating an order issued undersection
7463(a) of this title, together with a statement of the
particular provisions of the order violated by the person.
(3) Penalty
Any person who willfully violates this subsection, on conviction, shall
be subject to a fine of not more than $1,000 or to imprisonment for not
more than 1 year, or both, and, if the person is a member, officer, or
agent of the Board or an employee of the Department of Agriculture,
shall be removed from office.
(h) Withholding of information
Nothing in this subchapter authorizes the withholding of information
from Congress.
(Pub. L. 104–127, title
V, §556, Apr. 4, 1996, 110
Stat. 1067.)
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections
203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security,
and the Department of Homeland Security Reorganization Plan of November
25, 2002, as modified, set out as a note under section
542 of Title 6.
§7466. Permissive terms in order
(a) Permissive terms
On the recommendation of the Board and with the approval of the
Secretary, an order issued under section
7463 of this title may
include the terms and conditions specified in this section and such
additional terms and conditions as the Secretary considers necessary to
effectuate the other provisions of the order and are incidental to, and
not inconsistent with, this subchapter.
(b) Alternative payment and reporting schedules
The order may authorize the Board to designate different handler payment
and reporting schedules to recognize differences in marketing practices
and procedures.
(c) Working groups
The order may authorize the Board to convene working groups drawn from
producers, handlers, importers, exporters, or the general public and
utilize the expertise of the groups to assist in the development of
research and marketing programs for kiwifruit.
(d) Reserve funds
The order may authorize the Board to accumulate reserve funds from
assessments collected pursuant to section
7465(b) of this title to
permit an effective and continuous coordinated program of research,
promotion, and consumer information in years in which production and
assessment income may be reduced, except that any reserve fund may not
exceed the amount budgeted for operation of this subchapter for 1 year.
(e) Promotion activities outside United States
The order may authorize the Board to use, with the approval of the
Secretary, funds collected under section
7465(b) of this title and
funds from other sources for the development and expansion of sales in
foreign markets of kiwifruit produced in the United States.
(Pub. L. 104–127, title
V, §557, Apr. 4, 1996, 110
Stat. 1070.)
§7467. Petition and review
(a) Petition
(1) In general
A person subject to an order may file with the Secretary a petition—
(A) stating that the order, a provision of the order, or an 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) Hearings
A person submitting a petition under paragraph (1) shall be given an
opportunity for a hearing on the petition, in accordance with
regulations issued by the Secretary.
(3) Ruling
After the hearing, the Secretary shall issue a ruling on the petition
which shall be final if the petition is in accordance with law.
(4) Limitation on petition
Any petition filed under this subchapter challenging an order, or any
obligation imposed in connection with an order, shall be filed not later
than 2 years after the effective date of the order or imposition of the
obligation.
(b) Review
(1) Commencement of action
The district court of the United States for any district in which the
person who is a petitioner under subsection (a) of this section resides
or carries on business is vested with jurisdiction to review the ruling
on the petition of the person, if a complaint for that purpose is filed
not later than 20 days after the date of the entry of a ruling by the
Secretary under subsection (a) of this section.
(2) Process
Service of process in the proceedings shall be conducted in accordance
with the Federal Rules of Civil Procedure.
(3) Remands
If the court determines that the ruling is not in accordance with law,
the court shall remand the matter to the Secretary with directions—
(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.
(4) Enforcement
The pendency of a proceeding instituted pursuant to subsection (a) of
this section shall not impede, hinder, or delay the Attorney General or
the Secretary from obtaining relief pursuant to section
7468 of this title.
(Pub. L. 104–127, title
V, §558, Apr. 4, 1996, 110
Stat. 1070.)
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
§7468. Enforcement
(a) Jurisdiction
A district court of the United States shall have jurisdiction
specifically to enforce, and to prevent and restrain any person from
violating, any order or regulation made or issued by the Secretary under
this subchapter.
(b) Referral to Attorney General
A civil action authorized to be brought under this section 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 subchapter, or any order or regulation issued under this
subchapter, if the Secretary believes that the administration and
enforcement of this subchapter would be adequately served by
administrative action under subsection (c) of this section or suitable
written notice or warning to the person committing the violation.
(c) Civil penalties and orders
(1) Civil penalties
Any person who willfully violates any provision of any order or
regulation issued by the Secretary under this subchapter, or who fails
or refuses to pay, collect, or remit any assessment or fee duly required
of the person under the order or regulation, may be assessed a civil
penalty by the Secretary of not less than $500 nor more than $5,000 for
each such violation. Each violation shall be a separate offense.
(2) Cease-and-desist orders
In addition to or in lieu of the civil penalty, the Secretary may issue
an order requiring the person to cease and desist from continuing the
violation.
(3) Notice and hearing
No order assessing a civil penalty or cease-and-desist order may be
issued by the Secretary under this subsection unless the Secretary gives
the person against whom the order is issued notice and opportunity for a
hearing on the record before the Secretary with respect to the
violation.
(4) Finality
The order of the Secretary assessing a penalty or imposing a
cease-and-desist order shall be final and conclusive unless the person
against whom the order is issued files an appeal of the order in the
appropriate district court of the United States, in accordance with
subsection (d) of this section.
(d) Review by United States 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) of this
section may obtain review of the penalty or cease-and-desist order in
the district court of the United States for the district in which the
person resides or carries on business, or the United States District
Court for the District of Columbia, by—
(A) filing a notice of appeal in the court not later than 30 days after
the date on which the penalty is assessed or cease-and-desist order
issued; and
(B) simultaneously sending a copy of the notice by certified mail to the
Secretary.
(2) Record
The Secretary shall promptly file in the court a certified copy of the
record on which the Secretary found that the person committed the
violation.
(3) Standard of review
A finding of the Secretary shall be set aside only if the finding is
found to be unsupported by substantial evidence.
(e) Failure to obey cease-and-desist orders
Any person who fails to obey a cease-and-desist order issued by the
Secretary after the cease-and-desist 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, after opportunity for a
hearing and for judicial review under the procedures specified in
subsections (c) and (d) of this section, of not more than $500 for each
offense. Each day during which the failure continues shall be considered
a separate violation of the cease-and-desist order.
(f) Failure to pay penalties
If a person fails to pay an assessment of a civil penalty after the
assessment has become a final and unappealable order issued by the
Secretary, 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 the district court of the United States for any district in
which the person resides or carries on business. In an action for
recovery, the validity and appropriateness of the final order imposing
the civil penalty shall not be subject to review.
(Pub. L. 104–127, title
V, §559, Apr. 4, 1996, 110
Stat. 1071.)
§7469. Investigations and power to subpoena
(a) In general
The Secretary may make such investigations as the Secretary considers
necessary—
(1) for the effective carrying out of the responsibilities of the
Secretary under this subchapter; or
(2) to determine whether a person subject to this subchapter has engaged
or is engaging in any act that constitutes a violation of this
subchapter, or any order, rule, or regulation issued under this
subchapter.
(b) Power to subpoena
(1) Investigations
For the purpose of an investigation made under subsection (a) of this
section, the Secretary may administer oaths and affirmations and may
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
7467 or 7468 of this title, the presiding officer is authorized
to administer oaths and affirmations, subpoena witnesses, compel the
attendance of witnesses, 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
In the case of contumacy by, or refusal to obey a subpoena 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, to
enforce a subpoena issued by the Secretary under subsection (b) of this
section. The court may issue an order requiring the person to comply
with the subpoena.
(d) Contempt
Any failure to obey the order of the court may be punished by the court
as a contempt of the court.
(e) Process
Process in any such case may be served in the judicial district in which
the person resides or carries on business or wherever the person may be
found.
(f) Hearing site
The site of any hearing held under section
7467 or 7468 of this title shall
be in the judicial district where the person affected by the hearing
resides or has a principal place of business.
(Pub. L. 104–127, title
V, §560, Apr. 4, 1996, 110
Stat. 1072.)
§7470. Referenda
(a) Initial referendum
(1) Referendum required
During the 60-day period immediately preceding the proposed effective
date of an order issued under section
7463 of this title, the Secretary shall conduct a referendum
among kiwifruit producers and importers who will be subject to
assessments under the order, to ascertain whether producers and
importers approve the implementation of the order.
(2) Approval of order
The order shall become effective, as provided in section
7463 of this title, if the Secretary determines that—
(A) the order has been approved by a majority of the producers and
importers voting in the referendum; and
(B) the producers and importers favoring approval produce and import
more than 50 percent of the total volume of kiwifruit produced and
imported by persons voting in the referendum.
(b) Subsequent referenda
The Secretary may periodically conduct a referendum to determine if
kiwifruit producers and importers favor the continuation, termination,
or suspension of any order issued under section
7463 of this title that
is in effect at the time of the referendum.
(c) Required referenda
The Secretary shall hold a referendum under subsection (b) of this
section—
(1) at the end of the 6-year period beginning on the effective date of
the order and at the end of each subsequent 6-year period;
(2) at the request of the Board; or
(3) if not less than 30 percent of the kiwifruit producers and importers
subject to assessments under the order submit a petition requesting the
referendum.
(d) Vote
On completion of a referendum under subsection (b) of this section, the
Secretary shall suspend or terminate the order that was subject to the
referendum at the end of the marketing year if—
(1) the suspension or termination of the order is favored by not less
than a majority of the producers and importers voting in the referendum;
and
(2) the producers and importers produce and import more than 50 percent
of the total volume of kiwifruit produced and imported by persons voting
in the referendum.
(e) Confidentiality
The ballots and other information or reports that reveal, or tend to
reveal, the vote of any person under this subchapter and the voting list
shall be held strictly confidential and shall not be disclosed.
(Pub. L. 104–127, title
V, §561, Apr. 4, 1996, 110
Stat. 1073.)
§7471. Suspension or termination
(a) In general
If the Secretary finds that an order issued under section
7463 of this title, or a provision of the order, obstructs or
does not tend to effectuate the purposes of this subchapter, the
Secretary shall suspend or terminate the operation of the order or
provision.
(b) Limitation
The suspension or termination of any order, or any provision of an
order, shall not be considered an order under this subchapter.
(Pub. L. 104–127, title
V, §562, Apr. 4, 1996, 110
Stat. 1074.)
§7472. Regulations
The Secretary may issue such regulations as are necessary to carry out
this subchapter.
(Pub. L. 104–127, title
V, §563, Apr. 4, 1996, 110
Stat. 1074.)
§7473. Authorization of appropriations
There are authorized to be appropriated for each fiscal year such sums
as are necessary to carry out this subchapter.
(Pub. L. 104–127, title
V, §564, Apr. 4, 1996, 110
Stat. 1074.)
SUBCHAPTER V—POPCORN
§7481. Findings and declaration of policy
(a) Findings
Congress finds that—
(1) popcorn is an important food that is a valuable part of the human
diet;
(2) the production and processing of popcorn plays a significant role in
the economy of the United States in that popcorn is processed by several
popcorn processors, distributed through wholesale and retail outlets,
and consumed by millions of people throughout the United States and
foreign countries;
(3) popcorn must be of high quality, readily available, handled
properly, and marketed efficiently to ensure that the benefits of
popcorn are available to the people of the United States;
(4) the maintenance and expansion of existing markets and uses and the
development of new markets and uses for popcorn are vital to the welfare
of processors and persons concerned with marketing, using, and producing
popcorn for the market, as well as to the agricultural economy of the
United States;
(5) the cooperative development, financing, and implementation of a
coordinated program of popcorn promotion, research, consumer
information, and industry information is necessary to maintain and
expand markets for popcorn; and
(6) popcorn moves in interstate and foreign commerce, and popcorn that
does not move in those channels of commerce directly burdens or affects
interstate commerce in popcorn.
(b) Policy
It is the policy of Congress that it is in the public interest to
authorize the establishment, through the exercise of the powers provided
in this subchapter, of an orderly procedure for developing, financing
(through adequate assessments on unpopped popcorn processed
domestically), and carrying out an effective, continuous, and
coordinated program of promotion, research, consumer information, and
industry information designed to—
(1) strengthen the position of the popcorn industry in the marketplace;
and
(2) maintain and expand domestic and foreign markets and uses for
popcorn.
(c) Purposes
The purposes of this subchapter are to—
(1) maintain and expand the markets for all popcorn products in a manner
that—
(A) is not designed to maintain or expand any individual share of a
producer or processor of the market;
(B) does not compete with or replace individual advertising or promotion
efforts designed to promote individual brand name or trade name popcorn
products; and
(C) authorizes and funds programs that result in government speech
promoting government objectives; and
(2) establish a nationally coordinated program for popcorn promotion,
research, consumer information, and industry information.
(d) Statutory construction
This subchapter treats processors equitably. Nothing in this subchapter—
(1) provides for the imposition of a trade barrier to the entry into the
United States of imported popcorn for the domestic market; or
(2) provides for the control of production or otherwise limits the right
of any individual processor to produce popcorn.
(Pub. L. 104–127, title
V, §572, Apr. 4, 1996, 110
Stat. 1074.)
§7482. Definitions
In this subchapter (unless the context otherwise requires):
(1) Board
The term “Board” means the Popcorn Board established under section
7484(b) of this title.
(2) Commerce
The term “commerce” means interstate, foreign, or intrastate commerce.
(3) Consumer information
The term “consumer information” means information and programs that will
assist consumers and other persons in making evaluations and decisions
regarding the purchase, preparation, and use of popcorn.
(4) Department
The term “Department” means the Department of Agriculture.
(5) Industry information
The term “industry information” means information or a program that will
lead to the development of—
(A) new markets, new marketing strategies, or increased efficiency for
the popcorn industry; or
(B) activities to enhance the image of the popcorn industry.
(6) Marketing
The term “marketing” means the sale or other disposition of unpopped
popcorn for human consumption in a channel of commerce, but does not
include a sale or disposition to or between processors.
(7) Order
The term “order” means an order issued under section
7483 of this title.
(8) Person
The term “person” means an individual, group of individuals,
partnership, corporation, association, or cooperative, or any other
legal entity.
(9) Popcorn
The term “popcorn” means unpopped popcorn (Zea Mays L) that is—
(A) commercially grown;
(B) processed in the United States by shelling, cleaning, or drying; and
(C) introduced into a channel of commerce.
(10) Process
The term “process” means to shell, clean, dry, and prepare popcorn for
the market, but does not include packaging popcorn for the market
without also engaging in another activity described in this paragraph.
(11) Processor
The term “processor” means a person engaged in the preparation of
unpopped popcorn for the market who owns or shares the ownership and
risk of loss of the popcorn and who processes and distributes over
4,000,000 pounds of popcorn in the market per year.
(12) Promotion
The term “promotion” means an action, including paid advertising, to
enhance the image or desirability of popcorn.
(13) Research
The term “research” means any type of study to advance the image,
desirability, marketability, production, product development, quality,
or nutritional value of popcorn.
(14) Secretary
The term “Secretary” means the Secretary of Agriculture.
(15) State
The term “State” means each of the 50 States and the District of
Columbia.
(16) United States
The term “United States” means all of the States.
(Pub. L. 104–127, title
V, §573, Apr. 4, 1996, 110
Stat. 1075.)
§7483. Issuance of orders
(a) In general
To effectuate the policy described in section
7481(b) of this title, the Secretary, subject to subsection (b)
of this section, shall issue 1 or more orders applicable to processors.
An order shall be applicable to all popcorn production and marketing
areas in the United States. Not more than 1 order shall be in effect
under this subchapter at any 1 time.
(b) Procedure
(1) Proposal or request for issuance
The Secretary may propose the issuance of an order, or an association of
processors or any other person that would be affected by an order may
request the issuance of, and submit a proposal for, an order.
(2) Notice and comment concerning proposed order
Not later than 60 days after the receipt of a request and proposal for
an order under paragraph (1), or at such time as the Secretary
determines to propose an order, the Secretary shall publish a proposed
order and give due notice and opportunity for public comment on the
proposed order.
(3) Issuance of order
After notice and opportunity for public comment under paragraph (2), the
Secretary shall issue an order, taking into consideration the comments
received and including in the order such provisions as are necessary to
ensure that the order conforms to this subchapter. The order shall be
issued and become effective not later than 150 days after the date of
publication of the proposed order.
(c) Amendments
The Secretary, as appropriate, may amend an order. The provisions of
this subchapter applicable to an order shall be applicable to any
amendment to an order, except that an amendment to an order may not
require a referendum to become effective.
(Pub. L. 104–127, title
V, §574, Apr. 4, 1996, 110
Stat. 1076.)
§7484. Required terms in orders
(a) In general
An order shall contain the terms and conditions specified in this
section.
(b) Establishment and membership of Popcorn Board
(1) In general
The order shall provide for the establishment of, and appointment of
members to, a Popcorn Board that shall consist of not fewer than 4
members and not more than 9 members.
(2) Nominations
The members of the Board shall be processors appointed by the Secretary
from nominations submitted by processors in a manner authorized by the
Secretary, subject to paragraph (3). Not more than 1 member may be
appointed to the Board from nominations submitted by any 1 processor.
(3) Geographical diversity
In making appointments, the Secretary shall take into account, to the
extent practicable, the geographical distribution of popcorn production
throughout the United States.
(4) Terms
The term of appointment of each member of the Board shall be 3 years,
except that the members appointed to the initial Board shall serve,
proportionately, for terms of 2, 3, and 4 years, as determined by the
Secretary.
(5) Compensation and expenses
A member of the Board shall serve without compensation, but shall be
reimbursed for the expenses of the member incurred in the performance of
duties for the Board.
(c) Powers and duties of Board
The order shall define the powers and duties of the Board, which shall
include the power and duty—
(1) to administer the order in accordance with the terms and provisions
of the order;
(2) to issue regulations to effectuate the terms and provisions of the
order;
(3) to appoint members of the Board to serve on an executive committee;
(4) to propose, receive, evaluate, and approve budgets, plans, and
projects of promotion, research, consumer information, and industry
information, and to contract with appropriate persons to implement the
plans or projects;
(5) to accept and receive voluntary contributions, gifts, and market
promotion or similar funds;
(6) to invest, pending disbursement under a plan or project, funds
collected through assessments authorized under subsection (f) of this
section, only in—
(A) obligations of the United States or an agency of the United States;
(B) general obligations of a State or a political subdivision of a
State;
(C) an 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;
(7) to receive, investigate, and report to the Secretary complaints of
violations of the order; and
(8) to recommend to the Secretary amendments to the order.
(d) Plans and budgets
(1) In general
The order shall provide that the Board shall submit to the Secretary for
approval any plan or project of promotion, research, consumer
information, or industry information.
(2) Budgets
The order shall require the Board to submit to the Secretary for
approval budgets on a fiscal year basis of the anticipated expenses and
disbursements of the Board in the implementation of the order, including
projected costs of plans and projects of promotion, research, consumer
information, and industry information.
(e) Contracts and agreements
(1) In general
The order shall provide that the Board may enter into contracts or
agreements for the implementation and carrying out of plans or projects
of promotion, research, consumer information, or industry information,
including contracts with a processor organization, and for the payment
of the cost of the plans or projects with funds collected by the Board
under the order.
(2) Requirements
A contract or agreement under paragraph (1) shall provide that—
(A) the contracting party shall develop and submit to the Board a plan
or project, together with a budget that shows the estimated costs to be
incurred for the plan or project;
(B) the plan or project shall become effective on the approval of the
Secretary; and
(C) the contracting party shall keep accurate records of each
transaction of the party, account for funds received and expended, make
periodic reports to the Board of activities conducted, and make such
other reports as the Board or the Secretary may require.
(3) Processor organizations
The order shall provide that the Board may contract with processor
organizations for any services required in addition to the services
described in paragraph (1). The contract shall include provisions
comparable to the provisions required by paragraph (2).
(f) Assessments
(1) Processors
The order shall provide that each processor marketing popcorn in the
United States or for export shall, in the manner prescribed in the
order, pay assessments and remit the assessments to the Board.
(2) Direct marketers
A processor that markets popcorn produced by the processor directly to
consumers shall pay and remit the assessments on the popcorn directly to
the Board in the manner prescribed in the order.
(3) Rate
(A) In general
The rate of assessment prescribed in the order shall be a rate
established by the Board but not more than $.08 per hundredweight of
popcorn.
(B) Adjustment of rate
The order shall provide that the Board, with the approval of the
Secretary, may raise or lower the rate of assessment annually up to a
maximum of $.08 per hundredweight of popcorn.
(4) Use of assessments
(A) In general
Subject to subparagraphs (B) and (C) and subsection (c)(5) of this
section, the order shall provide that the assessments collected shall be
used by the Board—
(i) to pay expenses incurred in implementing and administering the
order, with provision for a reasonable reserve; and
(ii) to cover such administrative costs as are incurred by the
Secretary, except that the administrative costs incurred by the
Secretary (other than any legal expenses incurred to defend and enforce
the order) that may be reimbursed by the Board may not exceed 15 percent
of the projected annual revenues of the Board.
(B) Expenditures based on source of assessments
In implementing plans and projects of promotion, research, consumer
information, and industry information, the Board shall expend funds on—
(i) plans and projects for popcorn marketed in the United States or
Canada in proportion to the amount of assessments collected on
domestically marketed popcorn; and
(ii) plans and projects for exported popcorn in proportion to the amount
of assessments collected on exported popcorn.
(C) Notification
If the administrative costs incurred by the Secretary that are
reimbursed by the Board exceed 10 percent of the projected annual
revenues of the Board, the Secretary shall notify as soon as practicable
the Committee on Agriculture of the House of Representatives and the
Committee on Agriculture, Nutrition, and Forestry of the Senate.
(g) Prohibition on use of funds
The order shall prohibit any funds collected by the Board under the
order from being used to influence government action or policy, other
than the use of funds by the Board for the development and
recommendation to the Secretary of amendments to the order.
(h) Books and records of Board
The order shall require the Board to—
(1) maintain such books and records (which shall be available to the
Secretary for inspection and audit) as the Secretary may prescribe;
(2) prepare and submit to the Secretary, from time to time, such reports
as the Secretary may prescribe; and
(3) account for the receipt and disbursement of all funds entrusted to
the Board.
(i) Books and records of processors
(1) Maintenance and reporting of information
The order shall require that each processor of popcorn for the market
shall—
(A) maintain, and make available for inspection, such books and records
as are required by the order; and
(B) file reports at such time, in such manner, and having such content
as is prescribed in the order.
(2) Use of information
The Secretary shall authorize the use of information regarding
processors that may be accumulated under a law or regulation other than
this subchapter or a regulation issued under this subchapter. The
information shall be made available to the Secretary as appropriate for
the administration or enforcement of this subchapter, the order, or any
regulation issued under this subchapter.
(3) Confidentiality
(A) In general
Subject to subparagraphs (B), (C), and (D), all information obtained by
the Secretary under paragraphs (1) and (2) shall be kept confidential by
all officers, employees, and agents of the Board and the Department.
(B) Disclosure by Secretary
Information referred to in subparagraph (A) may be disclosed if—
(i) the Secretary considers the information relevant;
(ii) the information is revealed 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
(iii) the information relates to the order.
(C) Disclosure to other agency of Federal Government
(i) In general
No information obtained under the authority of this subchapter may be
made available to another agency or officer of the Federal Government
for any purpose other than the implementation of this subchapter and any
investigatory or enforcement activity necessary for the implementation
of this subchapter.
(ii) Penalty
A person who knowingly violates this subparagraph shall, on conviction,
be subject to a fine of not more than $1,000 or to imprisonment for not
more than 1 year, or both, and if an officer, employee, or agent of the
Board or the Department, shall be removed from office or terminated from
employment, as applicable.
(D) General statements
Nothing in this paragraph prohibits—
(i) the issuance of general statements based on the reports of a number
of persons subject to an order or statistical data collected from the
reports, if the statements do not identify the information provided by
any person; or
(ii) the publication, by direction of the Secretary, of the name of a
person violating the order, together with a statement of the particular
provisions of the order violated by the person.
(j) Other terms and conditions
The order shall contain such other terms and conditions, consistent with
this subchapter, as are necessary to effectuate this subchapter,
including regulations relating to the assessment of late payment
charges.
(Pub. L. 104–127, title
V, §575, Apr. 4, 1996, 110
Stat. 1077.)
§7485. Referenda
(a) Initial referendum
(1) In general
Within the 60-day period immediately preceding the effective date of an
order, as provided in section
7483(b)(3) of this title, the Secretary shall conduct a
referendum among processors who, during a representative period as
determined by the Secretary, have been engaged in processing, for the
purpose of ascertaining whether the order shall go into effect.
(2) Approval of order
The order shall become effective, as provided in section
7483(b) of this title, only if the Secretary determines that
the order has been approved by not less than a majority of the
processors voting in the referendum and if the majority processed more
than 50 percent of the popcorn certified as having been processed,
during the representative period, by the processors voting.
(b) Additional referenda
(1) In general
Not earlier than 3 years after the effective date of an order approved
under subsection (a) of this section, on the request of the Board or a
representative group of processors, as described in paragraph (2), the
Secretary may conduct additional referenda to determine whether
processors favor the suspension or termination of the order.
(2) Representative group of processors
An additional referendum on an order shall be conducted if the
referendum is requested by 30 percent or more of the number of
processors who, during a representative period as determined by the
Secretary, have been engaged in processing.
(3) Disapproval of order
If the Secretary determines, in a referendum conducted under paragraph
(1), that suspension or termination of the order is favored by at least
2/3 of the processors voting in the referendum, the Secretary shall—
(A) suspend or terminate, as appropriate, collection of assessments
under the order not later than 180 days after the date of determination;
and
(B) suspend or terminate the order, as appropriate, in an orderly manner
as soon as practicable after the date of determination.
(c) Costs of referendum
The Secretary shall be reimbursed from assessments collected by the
Board for any expenses incurred by the Secretary in connection with the
conduct of any referendum under this section.
(d) Method of conducting referendum
Subject to this section, a referendum conducted under this section shall
be conducted in such manner as is determined by the Secretary.
(e) Confidentiality of ballots and other information
(1) In general
The ballots and other information or reports that reveal or tend to
reveal the vote of any processor, or any business operation of a
processor, shall be considered to be strictly confidential and shall not
be disclosed.
(2) Penalty for violations
An officer or employee of the Department who knowingly violates
paragraph (1) shall be subject to the penalties described in section
7484(i)(3)(C)(ii) of this title.
(Pub. L. 104–127, title
V, §576, Apr. 4, 1996, 110
Stat. 1081.)
§7486. Petition and review
(a) Petition
(1) In general
A person subject to an order may file with the Secretary a petition—
(A) stating that the order, a provision of the order, or an obligation
imposed in connection with the order is not established in accordance
with law; and
(B) requesting a modification of the order or obligation or an exemption
from the order or obligation.
(2) Statute of limitations
A petition under paragraph (1) concerning an obligation may be filed not
later than 2 years after the date of imposition of the obligation.
(3) Hearings
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.
(4) Ruling
After a hearing under paragraph (3), the Secretary shall issue a ruling
on the petition that is the subject of the hearing, which shall be final
if the ruling is in accordance with applicable law.
(b) Review
(1) Commencement of action
The district court of the United States for any district in which a
person who is a petitioner under subsection (a) of this section resides
or carries on business shall have jurisdiction to review a ruling on the
petition, if the person files a complaint not later than 20 days after
the date of issuance of the ruling under subsection (a)(4) of this
section.
(2) Process
Service of process in a proceeding under paragraph (1) may be made on
the Secretary by delivering a copy of the complaint to the Secretary.
(3) Remands
If the court determines, under paragraph (1), that a ruling issued under
subsection (a)(4) of this section is not in accordance with applicable
law, the court shall remand the matter to the Secretary with directions—
(A) to make such ruling as the court shall determine to be in accordance
with law; or
(B) to take such further proceedings as, in the opinion of the court,
the law requires.
(c) Enforcement
The pendency of proceedings instituted under subsection (a) of this
section may not impede, hinder, or delay the Secretary or the Attorney
General from taking action under section
7487 of this title.
(Pub. L. 104–127, title
V, §577, Apr. 4, 1996, 110
Stat. 1082.)
§7487. Enforcement
(a) In general
The Secretary may issue an enforcement order to restrain or prevent any
person from violating an order or regulation issued under this
subchapter and may assess a civil penalty of not more than $1,000 for
each violation of the enforcement order, after an opportunity for an
administrative hearing, if the Secretary determines that the
administration and enforcement of the order and this subchapter would be
adequately served by such a procedure.
(b) Jurisdiction
The district courts of the United States are vested with jurisdiction
specifically to enforce, and to prevent and restrain any person from
violating, an order or regulation issued under this subchapter.
(c) Referral to Attorney General
A civil action authorized to be brought under this section shall be
referred to the Attorney General for appropriate action.
(Pub. L. 104–127, title
V, §578, Apr. 4, 1996, 110
Stat. 1082.)
§7488. Investigations and power to subpoena
(a) Investigations
The Secretary may make such investigations as the Secretary considers
necessary—
(1) for the effective administration of this subchapter; and
(2) to determine whether any person subject to this subchapter has
engaged, or is about to engage, in an act that constitutes or will
constitute a violation of this subchapter or of an order or regulation
issued under this subchapter.
(b) Oaths, affirmations, and subpoenas
For the purpose of an investigation under subsection (a) of this
section, the Secretary may administer oaths and affirmations, subpoena
witnesses, compel the attendance of witnesses, take evidence, and
require the production of any records that are relevant to the inquiry.
The attendance of witnesses and the production of records may be
required from any place in the United States.
(c) Aid of courts
(1) Request
In the case of contumacy by, or refusal to obey a subpoena issued to,
any person, the Secretary may request 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
requiring the attendance and testimony of the person and the production
of records.
(2) Enforcement order of the court
The court may issue an enforcement order requiring the person to appear
before the Secretary to produce records or to give testimony concerning
the matter under investigation.
(3) Contempt
A failure to obey an enforcement order of the court under paragraph (2)
may be punished by the court as a contempt of the court.
(4) Process
Process in a case under this subsection may be served in the judicial
district in which the person resides or carries on business or wherever
the person may be found.
(Pub. L. 104–127, title
V, §579, Apr. 4, 1996, 110
Stat. 1083.)
§7489. Relation to other programs
Nothing in this subchapter preempts or supersedes any other program
relating to popcorn promotion organized and operated under the laws of
the United States or any State.
(Pub. L. 104–127, title
V, §580, Apr. 4, 1996, 110
Stat. 1083.)
§7490. Regulations
The Secretary may issue such regulations as are necessary to carry out
this subchapter.
(Pub. L. 104–127, title
V, §581, Apr. 4, 1996, 110
Stat. 1083.)
§7491. Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to
carry out this subchapter. Amounts made available under this section or
otherwise made available to the Department, and amounts made available
under any other marketing or promotion order, may not be used to pay any
administrative expense of the Board.
(Pub. L. 104–127, title
V, §582, Apr. 4, 1996, 110
Stat. 1083.)
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