CHAPTER 93—PROCESSOR-FUNDED
MILK PROMOTION PROGRAM
6401.
Findings and declaration
of policy.
6403.
Authority to issue
orders.
6404.
Notice and comment.
6405.
Findings and issuance of
orders.
6407.
Required terms in
orders.
6410.
Petition and review.
6412.
Investigations and power
to subpoena.
6413.
Requirement of initial
referendum.
6414.
Suspension or
termination of orders.
6416.
Independent evaluation
of programs.
6417.
Authorization of
appropriations.
§6401. Findings and declaration of policy
(a) Findings
Congress finds that—
(1) fluid milk products are basic foods and are a primary source of
required nutrients such as calcium, and otherwise are a valuable part of
the human diet;
(2) fluid milk products must be readily available and marketed
efficiently to ensure that the people of the United States receive
adequate nourishment;
(3) the dairy industry plays a significant role in the economy of the
United States, in that milk is produced by thousands of milk producers
and dairy products (including fluid milk products) are consumed every
day by millions of people in the United States;
(4) the processing of milk into fluid milk products and the marketing of
such products are important to the dairy industry because the fluid milk
segment of the dairy market contributes substantially to ensuring that
the prices paid to milk producers for raw milk are stable and adequate
to maintain the overall strength of the dairy industry;
(5) the maintenance and expansion of markets for fluid milk products are
vital to the Nation's fluid milk processors and milk producers, as well
as to the general economy of the United States;
(6) the congressional purpose underlying this chapter is to maintain and
expand markets for fluid milk products, not to maintain or expand any
processor's share of those markets and that the chapter does not
prohibit or restrict individual advertising or promotion of fluid milk
products since the programs created and funded by this chapter are not
extended to replace individual advertising and promotion efforts;
(7) the cooperative development, financing, and implementation of a
coordinated program of advertising and promotion of fluid milk products
is necessary to maintain and expand markets for fluid milk products;
(8) it is appropriate to finance the cooperative program described in
paragraph (6) 1 with
self-help assessments paid by the fluid milk processors; and
(9) fluid milk products move in interstate and foreign commerce, and
fluid milk products that do not move in such channels of commerce
directly burden or affect interstate commerce in fluid milk products.
(b) Policy
It is declared to be the policy of Congress that it is in the public
interest to authorize the establishment, through the exercise of powers
provided in this chapter, of an orderly procedure for developing,
financing, through adequate assessments on fluid milk products produced
in the United States and carrying out an effective, continuous, and
coordinated program of promotion, research, and consumer information
designed to strengthen the position of the dairy industry in the
marketplace and maintain and expand domestic and foreign markets and
uses for fluid milk products, the purpose of which is not to compete
with or replace individual advertising or promotion efforts designed to
promote individual brand name or trade name fluid milk products, but
rather to maintain and expand the markets for all fluid milk products,
with the goal and purpose of this chapter being a national governmental
goal that authorizes and funds programs that result in government speech
promoting government objectives.
(Pub. L. 101–624, title
XIX, §1999B, Nov. 28, 1990, 104
Stat. 3914; Pub.
L. 104–127, title I,
§146(a), (b), Apr. 4, 1996,110
Stat. 918.)
Amendments
1996—Subsec. (a)(6) to (9). Pub.
L. 104–127, §146(a),
added par. (6) and redesignated former pars. (6) to (8) as (7) to (9),
respectively.
Subsec. (b). Pub.
L. 104–127, §146(b),
amended heading and text of subsec. (b) generally. Text read as follows:
“It is declared to be the policy of Congress that it is in the public
interest to authorize the establishment, through the exercise of the
powers provided in this chapter, of an orderly procedure for developing,
financing (through adequate assessments on fluid milk products produced
in the United States) and carrying out an effective and coordinated
program of advertising designed to strengthen the position of the dairy
industry in the marketplace and to maintain and expand markets and uses
for fluid milk products produced in the United States. Nothing in this
chapter shall be construed to provide for the control of production or
otherwise limit the right of individual milk producers to produce milk.”
Short Title of 1993 Amendment
Pub. L. 103–72, §1,
Aug. 11, 1993, 107
Stat. 717, provided that: “This Act [amending sections
6402 and 6409 of this title] may be cited as the ‘Fluid Milk
Promotion Amendments Act of 1993’.”
Short Title
Pub. L. 101–624, title
XIX, §1999A, Nov. 28, 1990, 104
Stat. 3914, provided that: “This subtitle [subtitle H
(§§1999A—1999R) of title XIX of Pub.
L. 101–624, enacting
this chapter] may be cited as the ‘Fluid Milk Promotion Act of 1990’.”
§6402. Definitions
As used in this chapter:
(1) Advertising
The term “advertising” means any advertising or promotion program
involving only fluid milk products and directed toward increasing the
general demand for fluid milk products.
(2) Board
The term “Board” means the National Processor Advertising and Promotion
Board established under section
6407(b) of this title.
(3) Fluid milk product
The term “fluid milk product” has the meaning given the term in—
(A) section 1000.15 of title 7, Code of Federal Regulations, subject to
such amendments as may be made by the Secretary; or
(B) any successor regulation.
(4) Fluid milk processor
The term “fluid milk processor” means any person who processes and
markets commercially more than 3,000,000 pounds of fluid milk products
in consumer-type packages per month (excluding products delivered
directly to the place of residence of a consumer).
(5) Department
The term “Department” means the Department of Agriculture.
(6) Research
The term “research” means market research to support advertising and
promotion efforts, including educational activities, research directed
to product characteristics, product development, including new products
or improved technology in production, manufacturing or processing of
milk and the products of milk.
(7) Secretary
The term “Secretary” means the Secretary of Agriculture.
(8) United States
The term “United States”, except as used in sections
6410 through 6412 of this title, means the 48 contiguous States
in the continental United States and the District of Columbia.
(Pub. L. 101–624, title
XIX, §1999C, Nov. 28, 1990, 104
Stat. 3915; Pub.
L. 103–72, §2(a), Aug.
11, 1993, 107
Stat. 717; Pub.
L. 104–127, title I,
§146(c), Apr. 4, 1996, 110
Stat. 918; Pub.
L. 107–171, title I,
§1506(a), (b), May 13, 2002,116
Stat. 210.)
Amendments
2002—Par. (3). Pub.
L. 107–171, §1506(a),
added par. (3) and struck out heading and text of former par. (3). Text
read as follows: “The term ‘fluid milk product’—
“(A) means any of the following products in fluid or frozen form: milk,
skim milk, lowfat milk, milk drinks, buttermilk, filled milk, and
milkshake and ice milk mixes containing less than 20 percent total
solids, including any such products that are flavored, cultured,
modified with added nonfat milk solids, concentrated (if in a
consumer-type package), or reconstituted; and
“(B) does not include evaporated or condensed milk (plain or sweetened),
evaporated or condensed skim milk (plain or sweetened), formulas
specially prepared for infant feeding or dietary use that are packaged
in hermetically sealed glass or all-metal containers, any product that
contains by weight less than 6.5 percent nonfat milk solids, and whey.”
Par. (4). Pub.
L. 107–171, §1506(b),
substituted “3,000,000 pounds of fluid milk products in consumer-type
packages per month (excluding products delivered directly to the place
of residence of a consumer)” for “500,000 pounds of fluid milk products
in consumer-type packages per month”.
1996—Par. (6). Pub.
L. 104–127 amended
heading and text of par. (6) generally. Text read as follows: “The term
‘research’—
“(A) means market research limited to the support of advertising and
promotion efforts, including educational activities; and
“(B) does not include research directed to product characteristics such
as nutrients; product development including new products; or improved
technology in production, manufacturing or processing; or any other
efforts not directly applicable to measuring or increasing the
effectiveness of advertising activities in expanding sales of fluid milk
products.”
1993—Par. (4). Pub.
L. 103–72 amended par.
(4) generally. Prior to amendment, par. (4) read as follows: “The term
‘fluid milk processor’ means any person who processes and markets
commercially fluid milk products in consumer-type packages.”
§6403. Authority to issue orders
(a) In general
To effectuate the declared policy under section
6401(b) of this title, the Secretary shall issue and from time
to time may amend, orders applicable to all fluid milk processors,
authorizing—
(1) the collection of assessments on fluid milk products subject to this
chapter; and
(2) the use of the assessments to provide research and advertising in a
manner prescribed by this chapter.
(b) Scope
Any order issued under this chapter shall be national in scope.
(c) One order
Not more than one order shall be in effect under this chapter at any one
time.
(Pub. L. 101–624, title
XIX, §1999D, Nov. 28, 1990, 104
Stat. 3916.)
§6404. Notice and comment
Not later than 60 days after the Secretary receives a request for the
issuance of an order under this chapter, and a specific proposal for an
order from individual fluid milk processors that marketed during a
representative period, as determined by the Secretary, not less than 30
percent of the volume of fluid milk products marketed by all processors,
the Secretary shall publish the proposed order and give due notice and
opportunity for public comment on the proposed order.
(Pub. L. 101–624, title
XIX, §1999E, Nov. 28, 1990, 104
Stat. 3916.)
§6405. Findings and issuance of orders
(a) In general
After notice and opportunity for public comment are given, as provided
in section
6404 of this title, 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 and the declared policy of this chapter.
(b) Effective date
Such order shall be issued and, if approved by fluid milk processors as
provided in section
6413 of this title, shall become effective not later than 180
days following publication of the proposed order.
(Pub. L. 101–624, title
XIX, §1999F, Nov. 28, 1990, 104
Stat. 3916.)
§6406. Regulations
The Secretary may issue such regulations as may be necessary to carry
out this chapter and the powers vested in the Secretary by this chapter.
(Pub. L. 101–624, title
XIX, §1999G, Nov. 28, 1990, 104
Stat. 3916.)
§6407. Required terms in orders
(a) In general
Each order issued under this chapter shall contain the terms and
conditions prescribed in this section.
(b) National Processor Advertising and Promotion Board
(1) Establishment
The order shall establish a National Processor Advertising and Promotion
Board to administer the order.
(2) Service to entire industry
In administering the order, the Board shall carry out programs and
projects that will provide maximum benefit to the fluid milk industry
and promote only fluid milk products. The Board shall, to the extent
practicable, ensure that advertising coverage in each region is
proportionate to the funds collected from each region.
(3) Regions
The Secretary shall establish not less than 12 nor more than 15 regions
in order to ensure appropriate geographic representation on the Board.
(4) Board membership
The Board shall consist of one member appointed by the Secretary, from
among fluid milk processors, to represent each of the regions
established under paragraph (3), with the membership representing, to
the extent practicable, differing sizes of operations. The Secretary
shall appoint five additional at-large members to the Board, of which at
least three shall be fluid milk processors and at least one shall be
from the general public.
(5) Terms of office
The members of the Board shall serve for terms 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. No
member shall serve for more than 2 consecutive terms, except that the
members that are selected to serve for the initial term of 1 or 2 years
shall be eligible to be reappointed for a 3-year term.
(6) Compensation
Each member of the Board shall serve without compensation, but shall be
reimbursed for necessary and reasonable expenses incurred in the
performance of duties of 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 make rules to effectuate the terms and conditions of the order;
(3) to receive, investigate, and report to the Secretary complaints of
violations of the order;
(4) to develop and recommend such rules, regulations, and amendments to
the order to the Secretary for approval as may be necessary for the
development and execution of programs or projects to carry out the
order;
(5) to employ such persons as the Board considers necessary and
determine the compensation and define the duties of the persons;
(6) to prepare and submit for the approval of the Secretary, prior to
the beginning of each fiscal year, a fiscal year 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, with the approval of the
Secretary, to develop and carry out programs or projects of research and
advertising;
(9) to carry out advertising or research, and pay the costs of the
projects with funds collected pursuant to section
6409 of this title;
(10) to keep minutes, books, and records that reflect all of the acts
and transactions of the Board, and promptly report minutes of each Board
meeting to the Secretary;
(11) to furnish the Secretary with such other information as the
Secretary may require; and
(12) to invest funds collected by the Board pursuant to subsection (g)
of this section.
(d) Plans and budgets
(1) Budgets
The order shall require the Board, prior to the beginning of each fiscal
year, or as may be necessary after the beginning of the fiscal year, to
develop budgets of the anticipated expenses and disbursements of the
Board in the implementation of the order, including projected costs of
research and advertising. The budget shall be submitted to the Secretary
and be effective on the approval of the Secretary.
(2) Incurring expenses
The Board may incur such expenses for research or advertising of fluid
milk products, and other expenses for the administration, maintenance,
and functioning of the Board, as may be authorized by the Secretary. The
expenses shall include any implementation, administrative, and
referendum costs incurred by the Department.
(3) Paying expenses
The funds to cover the expenses referred to in paragraph (2) shall be
paid from assessments collected undersection
6409 of this title.
(4) Limitation on spending
Effective 1 year after the date of the establishment of the Board, the
Board shall not spend in excess of 5 percent of the assessments
collected for the administration of the Board.
(e) Prohibition on branded advertising
A program or project conducted under this chapter shall not make any
reference to private brand names or use false or unwarranted claims on
behalf of fluid milk products, or false or unwarranted statements with
respect to the attributes or use of any competing products, except that
this subsection shall not preclude the Board from offering its programs
and projects for use by commercial parties, under such terms and
conditions as the Board may prescribe as approved by the Secretary.
(f) Contracts and agreements
(1) In general
To ensure efficient use of funds collected under this chapter, the order
shall provide that the Board may enter into contracts or agreements for
the implementation and carrying out of programs or projects for fluid
milk products research and advertising and for the payment of the costs
of the programs or projects with funds received by the Board under the
order.
(2) Requirements
Any such contract or agreement shall provide that—
(A) the contracting party shall develop and submit to the Board a
program or project, together with a budget or budgets that shall
disclose estimated costs to be incurred for such 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 of the
transactions of the contracting 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.
(g) Investment of funds
(1) In general
The order shall provide that the Board, with the approval of the
Secretary, may invest assessment funds collected by the Board under the
order, pending disbursement of the funds, only in—
(A) obligations of the United States or any agency thereof;
(B) general obligations of any State or any political subdivision
thereof;
(C) any interest-bearing account or certificate of deposit of a bank
that is a member of the Federal Reserve System; or
(D) obligations fully guaranteed as to principal and interest by the
United States.
(2) Income
Income from any such investment may be used for any purpose for which
the invested funds may be used.
(h) 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. A report of
each such audit shall be submitted to the Secretary.
(i) Books and records of processors
(1) In general
The order shall require that each fluid milk processor subject to this
chapter maintain and make available for inspection such books and
records as may be required by the order and file reports at the time, in
the manner, and having the content prescribed by the order.
(2) Use of information
Information obtained under paragraph (1) shall be made available to the
Secretary as is appropriate for the effectuation, administration, or
enforcement of this chapter, or any order or regulation issued under
this chapter.
(3) Confidentiality
(A) In general
Except as provided in subparagraphs (B) and (C), commercial or financial
information that is obtained under paragraph (1) or (2) and that is
privileged or confidential shall be kept confidential by all officers
and employees of the Department and agents of the Board, and only such
information so obtained as the Secretary considers relevant may be
disclosed to the public by them and then only in a suit or
administrative hearing brought at the request of the Secretary, or to
which the Secretary or any officer of the United States is a party, and
involving the order.
(B) Availability of information
Except as otherwise provided in this chapter, information obtained under
this chapter 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.
(C) Other exceptions
Nothing in subparagraph (A) may be construed to prohibit—
(i) the issuance of general statements, based on the reports, of the
number of persons subject to an order or statistical data collected from
the persons, which statements do not identify the information furnished
by any person; or
(ii) the publication, by direction of the Secretary, of the name of any
person violating any order, together with a statement of the particular
provisions of the order violated by the person.
(4) Penalty
Any person 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 such person is an agent of the Board or an officer
or employee of the Department, shall be removed from office.
(5) Withholding information
Nothing in this subsection shall authorize the Secretary to withhold
information from a duly authorized committee or subcommittee of
Congress.
(6) Time requirement
The records required under paragraph (1) shall be maintained for 2 years
beyond the fiscal year of the applicability of the records.
(j) Prohibition on use of funds to influence governmental action
(1) In general
Except as otherwise provided in paragraph (2), the order shall prohibit
any funds collected by the Board under the order from being used in any
manner for the purpose of influencing legislation or government action
or policy.
(2) Exception
Paragraph (1) shall not apply to the development or recommendation of
amendments to the order.
(k) Coordination
The order shall require the Board to take reasonable steps to coordinate
the collection of assessments, and advertising and research activities
of the Board with the National Dairy Promotion and Research Board
established under section
4504(b) of this title.
(l) Exemptions
The order shall exempt fluid milk products exported from the United
States from assessments under the order.
(m) Report
The Secretary shall provide annually for an independent evaluation of
the effectiveness of the fluid milk promotion program carried out under
this chapter during the previous fiscal year, in conjunction with the
evaluation of the National Dairy Promotion and Research Board
established under section
4504(b) of this title.
(n) Other terms and conditions
The order also shall contain such terms and conditions, not inconsistent
with this chapter, as are necessary to effectuate this chapter,
including regulations relating to the assessment of late payment
charges.
(Pub. L. 101–624, title
XIX, §1999H, Nov. 28, 1990, 104
Stat. 3916.)
§6408. Permissive terms
(a) In general
Each order issued under this chapter may contain one or more of the
terms and conditions described in this section.
(b) Advertising
The order may provide for the establishment, issuance, effectuation, and
administration of appropriate programs or projects for the advertising
of fluid milk products and the use of funds collected under this chapter
for such programs or projects.
(c) Research and development
The order may provide for establishing and carrying out research
projects and studies to support the advertising efforts for fluid milk
products, and the use of funds collected under the order for such
projects and studies.
(d) Reserve funds
The order may provide authority to accumulate reserve funds from
assessments collected pursuant to the order, to permit an effective and
continuous coordinated program of research and advertising in years when
the assessment income may be reduced, except that the total reserve fund
may not exceed 25 percent of the amount budgeted for the operation in
the current fiscal year of the order.
(e) Other terms
The order may contain such other terms and conditions incidental to and
not inconsistent with the terms and conditions specified in this chapter
as are necessary to effectuate the other provisions of the order.
(Pub. L. 101–624, title
XIX, §1999I, Nov. 28, 1990, 104
Stat. 3920.)
§6409. Assessments
(a) In general
The order shall provide that each fluid milk processor shall pay an
assessment on each unit of fluid milk product that such person processes
and markets commercially in consumer-type packages in the United States.
(b) No effect on producer prices
Such assessments shall not—
(1) reduce the prices paid under the Federal milk marketing orders
issued under section
608c of this title;
(2) otherwise be deducted from the amounts that handlers must pay to
producers for fluid milk products sold to a processor; or
(3) otherwise be deducted from the price of milk paid to a producer by a
handler, as determined by the Secretary.
(c) Remitting assessments
(1) In general
Assessments required under subsection (a) of this section shall be
remitted by the fluid milk processor directly to the Board in accordance
with the order and regulations issued by the Secretary.
(2) Time to remit assessment
Each processor who is responsible for the remittance of an assessment
under paragraph (1) shall remit the assessment to the Board not later
than the last day of the month following the month that the milk being
assessed was marketed.
(3) Verification
Remittances shall be verified by market administrators and State
regulatory officials, and local and State Agricultural Stabilization and
Conservation Service offices, as provided by the Secretary.
(d) Limitation on assessments
Not more than one assessment may be assessed under this section for the
purposes of this chapter on a processor for any unit of fluid milk
product.
(e) Producer-handlers
Producer-handlers that are required to pay the assessment imposed under section
4504(g) of this title, and that are fluid milk processors,
shall also be responsible for the additional assessment imposed by this
section.
(f) Processor assessment rate
Except as provided in section
6415(b) of this title, the rate of assessment prescribed by the
order shall be 20 cents per hundredweight of fluid milk products
marketed.
(Pub. L. 101–624, title
XIX, §1999J, Nov. 28, 1990, 104
Stat. 3921; Pub.
L. 103–72, §2(b), Aug.
11, 1993, 107
Stat. 717.)
Amendments
1993—Subsec. (e). Pub.
L. 103–72 inserted
“, and that are fluid milk processors,” after “section
4504(g) of this title”.
§6410. Petition and review
(a) Petition
(1) In general
A person subject to an order issued under this chapter 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) Hearings
The petitioner shall be given the 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,
which shall be final if in accordance with law.
(b) Review
(1) Commencement of action
The district courts of the United States in any district in which the
person who is a petitioner under subsection (a) of this section resides
or carries on business are hereby vested with jurisdiction to review the
ruling on such person's petition, if a complaint for that purpose is
filed within 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 such proceedings shall be conducted in accordance
with the Federal Rules of Civil Procedure.
(3) Remands
If the court determines that such ruling is not in accordance with law,
the court shall remand the matter to the Secretary with directions
either—
(A) to make such ruling as the court shall determine to be in accordance
with law; or
(B) to take such further proceedings as, in the opinion of the court,
the law requires.
(Pub. L. 101–624, title
XIX, §1999K, Nov. 28, 1990, 104
Stat. 3921.)
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.
§6411. Enforcement
(a) Jurisdiction
The several district courts of the United States are vested with
jurisdiction specifically to enforce, and to prevent and restrain any
person from violating, any order or regulation made or issued under this
chapter.
(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 chapter, or any order or regulation issued under this chapter,
if the Secretary believes that the administration and enforcement of
this chapter would be adequately served by providing a suitable written
notice or warning to the person who committed such violation or by
administrative action under subsection (c) of this section.
(c) Civil penalties and orders
(1) Civil penalties
Any person who violates any provision of any order or regulation issued
by the Secretary under this chapter, or who fails or refuses to pay,
collect, or remit any assessment or fee duly required of the person
under the order or regulations, may be assessed—
(A) a civil penalty by the Secretary of not less than $500 nor more than
$5,000 for each such violation; or
(B) in the case of a willful failure or refusal to pay, collect, or
remit any assessment or fee duly required of the person under this
chapter or a regulation issued under this chapter, a civil penalty by
the Secretary of not less than $10,000 nor more than $100,000 for each
such violation.
Each violation shall be a separate offense.
(2) Cease-and-desist orders
In addition to, or in lieu of, a civil penalty, the Secretary may issue
an order requiring the person to cease and desist from continuing such
violation.
(3) Notice and hearing
No penalty shall be assessed or cease-and-desist order issued by the
Secretary unless the person against whom the penalty is assessed or the
order issued is given notice and opportunity for a hearing before the
Secretary with respect to such 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 affected
person files an appeal from the Secretary's order with 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 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 order by—
(A) filing, within the 30-day period beginning on the date the penalty
is assessed or order issued, a notice of appeal in—
(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 such court a certified copy of the
record on which the Secretary found that the person had committed a
violation.
(3) Standard of review
A finding of the Secretary shall be set aside only if the finding is
found to be unsupported by substantial evidence.
(e) Failure to obey orders
Any person who fails to obey a cease-and-desist order after the order
has become final and unappealable, or after the appropriate United
States district court has entered a final judgment in favor of the
Secretary, shall be subject to a civil penalty assessed by the
Secretary, 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 such order.
(f) Failure to pay penalties
If any person fails to pay an assessment of a civil penalty after it 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 in which the
person resides or conducts business. In the action, 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 chapter shall be in addition to, and not
exclusive of, other remedies that may be available.
(Pub. L. 101–624, title
XIX, §1999L, Nov. 28, 1990, 104
Stat. 3922; Pub.
L. 102–237, title
VIII, §809, Dec. 13, 1991, 105
Stat. 1883.)
Amendments
1991—Subsec. (b). Pub.
L. 102–237 substituted
“this section” for “this subsection” after “brought under”.
§6412. 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 chapter; or
(2) to determine whether any person has engaged or is engaging in any
act that constitutes a violation of this chapter, or any order, rule, or
regulation issued under this chapter.
(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, and issue
a subpoena 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
6410 or 6411 of this title, the presiding officer is authorized
to administer oaths and affirmations, subpoena witnesses, compel their
attendance, take evidence, and require the production of any records
that are relevant to the inquiry. Such 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 issued to,
any person, the Secretary may invoke the aid of any court of the United
States within the jurisdiction of which such investigation or proceeding
is carried on, or where such 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 such person to
comply with such a subpoena.
(d) Contempt
Any failure to obey such order of the court may be punished by such
court as a contempt thereof.
(e) Process
Process in any such case may be served in the judicial district in which
such person resides or conducts business or wherever such person may be
found.
(f) Hearing site
The site of any hearings held under section
6410 or 6411 of this title shall
be within the judicial district where such person resides or has a
principal place of business.
(Pub. L. 101–624, title
XIX, §1999M, Nov. 28, 1990, 104
Stat. 3924.)
§6413. Requirement of initial referendum
(a) In general
Within the 60-day period immediately preceding the effective date of an
order issued under section
6405(a) of this title, the Secretary shall conduct a referendum
among fluid milk processors to ascertain whether the order shall go into
effect.
(b) Implementation
If, as a result of the referendum conducted under subsection (a) of this
section, the Secretary determines that implementation of the order is
favored—
(1) by at least 50 percent of fluid milk processors voting in the
referendum; and
(2) by fluid milk processors voting in the referendum that marketed
during the representative period, as determined by the Secretary, 60
percent or more of the volume of fluid milk products marketed by fluid
milk processors voting in the referendum;
the order shall become effective as provided in section
6405(b) of this title.
(c) Costs of referendum
The Secretary shall be reimbursed from any assessments collected by the
Board for any expenses incurred by the Department in connection with the
conduct of any referendum under this chapter.
(d) Manner
(1) In general
Referenda conducted pursuant to this chapter shall be conducted in a
manner determined by the Secretary.
(2) Advance registration
A fluid milk processor who chooses to vote in any referendum conducted
under this chapter shall register with the Secretary prior to the voting
period, after receiving notice from the Secretary concerning the
referendum under paragraph (4).
(3) Voting
A fluid milk processor who votes in any referendum conducted under this
chapter shall vote in accordance with procedures established by the
Secretary. The ballots and other information or reports that reveal or
tend to reveal the vote of any processor shall be held strictly
confidential.
(4) Notice
The Secretary shall notify all processors at least 30 days prior to a
referendum conducted under this chapter. The notice shall explain the
procedure established under this subsection.
(Pub. L. 101–624, title
XIX, §1999N, Nov. 28, 1990, 104
Stat. 3924; Pub.
L. 104–127, title I,
§146(d)(1), Apr. 4, 1996,110
Stat. 919.)
Amendments
1996—Subsec. (b)(2). Pub.
L. 104–127 substituted
“fluid milk processors voting in the referendum;” for “all processors;”.
§6414. Suspension or termination of orders
(a) Suspension or termination by Secretary
The Secretary shall, whenever the Secretary finds that the order or any
provision of the order obstructs or does not tend to effectuate the
declared policy of this chapter, terminate or suspend the operation of
the order or provision.
(b) Other referenda
(1) In general
The Secretary may conduct at any time a referendum of persons who,
during a representative period as determined by the Secretary, have been
fluid milk processors on whether to suspend or terminate the order, and
shall hold such a referendum on request of the Board or any group of
such processors that among them marketed during a representative period,
as determined by the Secretary, 10 percent or more of the volume of
fluid milk products marketed by fluid milk processors voting in the
preceding referendum.
(2) Suspension or termination
If the Secretary determines that the suspension or termination is
favored—
(A) by at least 50 percent of fluid milk processors voting in the
referendum; and
(B) by fluid milk processors voting in the referendum that marketed
during a representative period, as determined by the Secretary, 40
percent or more of the volume of fluid milk products marketed by fluid
milk processors voting in the referendum;
the Secretary shall, within 6 months after making the determination,
suspend or terminate, as appropriate, collection of assessments under
the order, and suspend or terminate, as appropriate, activities under
the order in an orderly manner as soon as practicable.
(3) Costs; manner
Subsections (c) and (d) of section
6413 of this title shall
apply to a referendum conducted under this subsection.
(Pub. L. 101–624, title
XIX, §1999O, Nov. 28, 1990, 104
Stat. 3925; Pub.
L. 104–127, title I,
§146(d)(2), (e), Apr. 4, 1996, 110
Stat. 919; Pub.
L. 107–171, title I,
§1506(c), May 13, 2002, 116
Stat. 210.)
Amendments
2002—Pub. L.
107–171 redesignated
subsecs. (b) and (c) as (a) and (b), respectively, and struck out
heading and text of former subsec. (a). Text read as follows: “Any order
effective under this chapter shall be terminated December 31, 2002. The
Secretary shall—
“(1) terminate the collection of assessments under the order upon such
date; and
“(2) terminate activities under the order in an orderly manner as soon
as practicable after such date.”
1996—Subsec. (a). Pub.
L. 104–127, §146(e),
substituted “2002” for “1996” in introductory provisions.
Subsec. (c)(1). Pub.
L. 104–127, §146(d)(2)(A),
substituted “fluid milk processors voting in the preceding referendum”
for “all processors”.
Subsec. (c)(2)(B). Pub.
L. 104–127, §146(d)(2)(B),
substituted “fluid milk processors voting in the referendum;” for “all
processors;”.
§6415. Amendments
(a) Amendments to order
Subject to subsection (b) of this section, the Secretary may issue such
amendments to an order as may be necessary to carry out this chapter.
(b) Amendment to assessment rates
(1) In general
The Secretary may conduct at any time a referendum of persons who,
during a representative period as determined by the Secretary, have been
fluid milk processors on adjusting the assessment rate under the order
issued under this chapter then in effect, and shall hold such a
referendum on request of the Board or any group of such processors that
among them marketed during a representative period, as determined by the
Secretary, 10 percent or more of the volume of fluid milk products
marketed by all processors.
(2) Adjustment to assessment rate
The Secretary shall adjust the assessment rate under the order whenever
the Secretary determines that the adjustment is favored—
(A) by at least 50 percent of fluid milk processors voting in the
referendum; and
(B) by fluid milk processors that marketed during a representative
period, as determined by the Secretary, 60 percent or more of the volume
of fluid milk products marketed by all processors;
In no event shall the rate of assessment prescribed by the order exceed
20 cents per hundredweight.
(3) Effective date
The adjusted assessment rate shall be effective on a date, as determined
by the Secretary, after the results of the referendum are known, but not
later than 30 days after the referendum.
(4) Costs; manner
Subsections (c) and (d) of section
6413 of this title shall
apply to a referendum conducted under this subsection.
(Pub. L. 101–624, title
XIX, §1999P, Nov. 28, 1990, 104
Stat. 3926.)
§6416. Independent evaluation of programs
(a) Review and evaluation
The Comptroller General of the United States shall review and evaluate
the order to—
(1) determine the effectiveness of the promotion program conducted under
this chapter on fluid milk sales;
(2) determine if the assessments for the program have been passed back
to milk producers by fluid milk processors; and
(3) make recommendations for future funding and assessment levels for
the program.
(b) Report to Congress
The Comptroller General shall submit a report to the Committee on
Agriculture of the House of Representatives and the Committee on
Agriculture, Nutrition, and Forestry of the Senate on the valuations
made under this section no later than January 1, 1995.
(Pub. L. 101–624, title
XIX, §1999Q, Nov. 28, 1990, 104
Stat. 3926.)
§6417. Authorization of appropriations
(a) In general
There are authorized to be appropriated for each fiscal year such funds
as are necessary to carry out this chapter.
(b) Administrative expenses
The funds so appropriated shall not be available for payment of the
expenses or expenditures of the Board in administering any provision of
any order issued under this chapter.
(Pub. L. 101–624, title
XIX, §1999R, Nov. 28, 1990, 104
Stat. 3926.)
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