I

104TH CONGRESS

1ST SESSION H. R. 1486

To provide for a nationally coordinated program of research, promotion,

and consumer information regarding kiwifruit for the purpose of expanding domestic and foreign markets for kiwifruit.

IN THE HOUSE OF REPRESENTATIVES

APRIL 7, 1995

Mr. HERGER (for himself, Mr. FAZIO of California, Mr. DOOLEY, Mr. RIGGS,

Mr. GALLEGLY, Mr. POMBO, Mr. CALVERT, Mrs. SEASTRAND, Mr. MATSUI, Mr. FARR, Mr. CONDIT, Mr. THORNTON, Mr. BISHOP, Mr. BROWN

of California, and Mr. THOMAS) introduced the following bill; which was

referred to the Committee on Agriculture, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To provide for a nationally coordinated program of research,

promotion, and consumer information regarding kiwifruit

for the purpose of expanding domestic and foreign markets for kiwifruit.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 1486 IH

1 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘National Kiwifruit Research, Promotion, and Consumer

4 Information Act’’.

5 (b) TABLE OF CONTENTS.—The table of contents for

6 this Act is as follows:

Sec. 1. Short title and table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

Sec. 4. Issuance of Kiwifruit Research, Promotion, and Consumer Information

Order.

Sec. 5. National Kiwifruit Board.

Sec. 6. Required terms in order.

Sec. 7. Permissive terms in order.

Sec. 8. Incorporation of petition and review, enforcement, and investigation provisions by reference.

Sec. 9. Referenda.

Sec. 10. Suspension and termination of order by Secretary.

Sec. 11. Authorization of appropriations.

Sec. 12. Regulations.

7 SEC. 2. FINDINGS AND PURPOSES.

8 (a) FINDINGS.—Congress finds that—

9 (1) domestically produced kiwifruit are grown

10 by many individual producers;

11 (2) virtually all domestically produced kiwifruit

12 are grown in the State of California, although there

13 is potential for production in many other areas of

14 the United States;

15 (3) kiwifruit move in interstate and foreign

16 commerce, and kiwifruit that do not move in such

17 channels of commerce directly burden or affect inter18 state commerce;
3

•HR 1486 IH

1 (4) in recent years, large quantities of kiwifruit

2 have been imported into the United States;

3 (5) the maintenance and expansion of existing

4 domestic and foreign markets for kiwifruit, and the

5 development of additional and improved markets for

6 kiwifruit, are vital to the welfare of kiwifruit produc7 ers and other persons concerned with producing,

8 marketing, and processing kiwifruit;

9 (6) a coordinated program of research, pro10 motion, and consumer information regarding

11 kiwifruit is necessary for the maintenance and devel12 opment of such markets; and

13 (7) kiwifruit producers, handlers, and importers

14 are unable to implement and finance such a program

15 without cooperative action.

16 (b) PURPOSES.—The purposes of this Act are—

17 (1) to authorize the establishment of an orderly

18 procedure for the development and financing

19 (through an assessment) of an effective and coordi20 nated program of research, promotion, and

21 consumer information regarding kiwifruit;

22 (2) to use such program to strengthen the posi23 tion of the kiwifruit industry in domestic and foreign

24 markets and maintain, develop, and expand markets

25 for kiwifruit; and
4

•HR 1486 IH

1 (3) to treat domestically produced kiwifruit and

2 imported kiwifruit equitably.

3 SEC. 3. DEFINITIONS.

4 As used in this Act:

5 (1) BOARD.—The term ‘‘Board’’ means the Na6 tional Kiwifruit Board, as provided for under section

7 5.

8 (2) CONSUMER INFORMATION.—The term

9 ‘‘consumer information’’ means any action taken to

10 provide information to, and broaden the understand11 ing of, the general public regarding the consumption,

12 use, nutritional attributes, and care of kiwifruit.

13 (3) EXPORTER.—The term ‘‘exporter’’ means

14 any person from outside the United States who ex15 ports kiwifruit into the United States.

16 (4) HANDLER.—The term ‘‘handler’’ means

17 any person, excluding a common carrier, engaged in

18 the business of buying and selling, packing, market19 ing, or distributing kiwifruit as specified in the

20 order.

21 (5) IMPORTER.—The term ‘‘importer’’ means

22 any person who imports kiwifruit into the United

23 States.
5

•HR 1486 IH

1 (6) KIWIFRUIT.—The term ‘‘kiwifruit’’ means

2 all varieties of fresh kiwifruit grown or imported in

3 the United States.

4 (7) MARKETING.—The term ‘‘marketing’’

5 means the sale or other disposition of kiwifruit into

6 interstate, foreign, or intrastate commerce by buy7 ing, marketing, distribution or otherwise placing

8 kiwifruit into commerce.

9 (8) ORDER.—The term ‘‘order’’ means a

10 kiwifruit research, promotion, and consumer infor11 mation order issued by the Secretary under section

12 4.

13 (9) PERSON.—The term ‘‘person’’ means any

14 individual, group of individuals, partnership, cor15 poration, association, cooperative, or other legal en16 tity.

17 (10) PROCESSING.—The term ‘‘processing’’

18 means canning, fermenting, distilling, extracting,

19 preserving, grinding, crushing, or in any manner

20 changing the form of kiwifruit for the purposes of

21 preparing it for market or marketing the kiwifruit.

22 (11) PRODUCER.—The term ‘‘producer’’ means

23 any person who grows kiwifruit in the United States

24 for sale in commerce.
6

•HR 1486 IH

1 (12) PROMOTION.—The term ‘‘promotion’’

2 means any action taken under this Act (including

3 paid advertising) to present a favorable image for

4 kiwifruit to the general public for the purpose of im5 proving the competitive position of kiwifruit and

6 stimulating the sale of kiwifruit.

7 (13) RESEARCH.—The term ‘‘research’’ means

8 any type of research relating to the use, nutritional

9 value, and marketing of kiwifruit conducted for the

10 purpose of advancing the image, desirability, mar11 ketability, or quality of kiwifruit.

12 (14) SECRETARY.—The term ‘‘Secretary’’

13 means the Secretary of Agriculture.

14 (15) UNITED STATES.—The term ‘‘United

15 States’’ means the 50 States of the United States,

16 the District of Columbia, and the Commonwealth of

17 Puerto Rico. (7 U.S.C. 6202.)

18 SEC. 4. ISSUANCE OF KIWIFRUIT RESEARCH, PROMOTION,

19 AND CONSUMER INFORMATION ORDER.

20 (a) ISSUANCE.—To effectuate the declared purposes

21 of this Act, the Secretary shall issue an order applicable

22 to producers, handlers, and importers of kiwifruit. Any

23 such order shall be national in scope. Not more than one

24 order shall be in effect under this Act at any one time.

25 (b) PROCEDURE.—
7

•HR 1486 IH

1 (1) PROPOSAL FOR ISSUANCE OF ORDER.—Any

2 person that will be affected by this Act may request

3 the issuance of, and submit a proposal for, an order

4 under this Act.

5 (2) PROPOSED ORDER.—Not later than 90 days

6 after the receipt of a request and proposal for an

7 order, the Secretary shall publish a proposed order

8 and give due notice and opportunity for public com9 ment on the proposed order.

10 (3) ISSUANCE OF ORDER.—After notice and op11 portunity for public comment are given, as provided

12 in paragraph (2), the Secretary shall issue an order,

13 taking into consideration the comments received and

14 including in the order provisions necessary to ensure

15 that the order is in conformity with the require16 ments of this Act.

17 (c) AMENDMENTS.—The Secretary may amend any

18 order issued under this section. The provisions of this Act

19 applicable to orders shall be applicable to amendments to

20 orders.

21 SEC. 5. NATIONAL KIWIFRUIT BOARD.

22 (a) MEMBERSHIP.—An order issued by the Secretary

23 under section 4 shall provide for the establishment of a

24 National Kiwifruit Board, to consist of 11 members as

25 follows:
8

•HR 1486 IH

1 (1) Six members who are producers (or their

2 representatives) and who are not exempt from an as3 sessment under section 6(b).

4 (2) Four members who are importers (or their

5 representatives) and who are not exempt from an as6 sessment under section 6(b) or are exporters (or

7 their representatives).

8 (3) One member appointed from the general

9 public.

10 (b) ADJUSTMENT OF MEMBERSHIP.—Subject to the

11 11-member limit, the Secretary may adjust membership

12 on the Board to accommodate changes in production and

13 import levels of kiwifruit, so long as producers comprise

14 not less than 51 percent of the membership of the Board.

15 (c) APPOINTMENT AND NOMINATION.—

16 (1) APPOINTMENT.—The Secretary shall ap17 point the members of the Board from nominations

18 submitted in accordance with this subsection.

19 (2) PRODUCERS.—The members referred to in

20 subsection (a)(1) shall be appointed from individuals

21 nominated by producers.

22 (3) IMPORTERS AND EXPORTERS.—The mem23 bers referred to in subsection (a)(2) shall be ap24 pointed from individuals nominated by importers or

25 exporters.
9

•HR 1486 IH

1 (4) PUBLIC REPRESENTATIVE.—The public rep2 resentative shall be appointed from nominations sub3 mitted by other members of the Board.

4 (5) FAILURE TO NOMINATE.—If producers, im5 porters, and exporters fail to nominate individuals

6 for appointment, the Secretary may appoint mem7 bers on a basis provided for in the order. If the

8 Board fails to nominate a public representative, such

9 member may be appointed by the Secretary without

10 a nomination.

11 (d) ALTERNATES.—The Secretary shall appoint an

12 alternate for each member of the Board. An alternate

13 shall—

14 (1) be appointed in the same manner as the

15 member for whom such individual is an alternate;

16 and

17 (2) serve on the Board if such member is ab18 sent from a meeting or is disqualified under sub19 section (f).

20 (e) TERMS.—Members of the Board shall be ap21 pointed for a term of three years. No member may serve

22 more than two consecutive three-year terms. However, of

23 the members first appointed—

24 (1) five members shall be appointed for a term

25 of two years; and
10

•HR 1486 IH

1 (2) six members shall be appointed for a term

2 of three years.

3 (f) REPLACEMENT.—If a member or alternate of the

4 Board who was appointed as a producer, importer, ex5 porter, or public representative member ceases to belong

6 to the group for which such member was appointed, such

7 member or alternate shall be disqualified from serving on

8 the Board.

9 (g) COMPENSATION.—Members and alternates of the

10 Board shall serve without pay.

11 (h) GENERAL POWERS AND DUTIES.—The Board

12 shall—

13 (1) administer orders issued by the Secretary

14 under section 4, and amendments to such orders, in

15 accordance with their terms and provisions and con16 sistent with this Act;

17 (2) prescribe rules and regulations to effectuate

18 the terms and provisions of such orders;

19 (3) meet, organize, and select from among

20 members of the Board a chairperson, other officers,

21 and committees and subcommittees, as the Board

22 determines appropriate;

23 (4) receive, investigate, and report to the Sec24 retary accounts of violations of such orders;
11

•HR 1486 IH

1 (5) make recommendations to the Secretary

2 with respect to amendments that should be made to

3 such orders; and

4 (6) employ or contract with a manager and

5 staff to assist in administering such orders, except

6 that, in order to reduce administrative costs and in7 crease efficiency, the Board shall seek, to the extent

8 possible, to employ or contract with personnel who

9 are already associated with State chartered organi10 zations involved in promoting kiwifruit.

11 SEC. 6. REQUIRED TERMS IN ORDER.

12 (a) BUDGETS AND PLANS.—An order issued under

13 section 4 shall provide for periodic budgets and plans as

14 follows:

15 (1) BUDGETS.—The Board shall prepare and

16 submit to the Secretary a budget prior to the begin17 ning of the fiscal year of the anticipated expenses

18 and disbursements of the Board in the administra19 tion of the order, including probable costs of re20 search, promotion, and consumer information. A

21 budget shall take effect upon a two-thirds vote of a

22 quorum of the Board and approval by the Secretary.

23 (2) PLANS.—Each budget shall include a plan

24 for research, promotion, and consumer information

25 regarding kiwifruit. A plan under this paragraph
12

•HR 1486 IH

1 shall take effect upon approval by the Secretary.

2 The Board may enter into contracts and agree3 ments, upon approval by the Secretary, for—

4 (A) the development and carrying out of

5 such plan; and

6 (B) the payment of the cost of such plan,

7 with funds collected pursuant to this Act.

8 (b) ASSESSMENTS.—Such order shall provide for the

9 imposition and collection of assessments with regard to the

10 production and importation of kiwifruit as follows:

11 (1) RATE.—The assessment rate shall be rec12 ommended by a two-thirds vote of a quorum of the

13 Board, approved by the Secretary, but shall not ex14 ceed $0.10 per seven pound tray of kiwifruit or

15 equivalent.

16 (2) COLLECTION BY FIRST HANDLERS.—Except

17 as provided in paragraph (4), the first handler of

18 kiwifruit shall—

19 (A) be responsible for the collection from

20 the producer, and payment to the Board, of as21 sessments under this subsection; and

22 (B) maintain a separate record of the

23 kiwifruit of each producer whose kiwifruit are

24 so handled, including the kiwifruit owned by the

25 handler.
13

•HR 1486 IH

1 (3) IMPORTERS.—The assessment on imported

2 kiwifruit shall be paid by the importer to the United

3 States Customs Service at the time of entry into the

4 United States and shall be remitted to the Board.

5 (4) EXEMPTION FROM ASSESSMENT.—The fol6 lowing persons or activities are exempt from an as7 sessment under this subsection:

8 (A) A producer who produces less than

9 500 pounds of kiwifruit per year.

10 (B) An importer who imports less than

11 10,000 pounds of kiwifruit per year.

12 (C) Sales of kiwifruit made directly from

13 the producer to a consumer for a purpose other

14 than resale.

15 (D) The production or importation of

16 kiwifruit for processing.

17 (5) CLAIM OF EXEMPTION.—To claim an ex18 emption under paragraph (4) for a particular year,

19 a person shall—

20 (A) submit an application to the Board

21 stating the basis for the exemption and certify22 ing that the person will not exceed any pound23 age limitation required for the exemption in

24 such year; or
14

•HR 1486 IH

1 (B) be on a list of approved processors de2 veloped by the Board.

3 (c) USE OF ASSESSMENTS.

4 (1) AUTHORIZED USES.—Such order shall pro5 vide that funds paid to the Board as assessments

6 under subsection (b) may be used by the Board—

7 (A) to pay for research, promotion, and

8 consumer information described in the budget

9 of the Board under subsection (a) and for other

10 expenses incurred by the Board in the adminis11 tration of an order;

12 (B) to pay such other expenses for the ad13 ministration, maintenance, and functioning of

14 the Board, including any enforcement efforts

15 for the collection of assessments as may be au16 thorized by the Secretary, including interest

17 and penalties for late payments; and

18 (C) to fund a reserve established under

19 section 7(d).

20 (2) REQUIRED USES.—Such order shall provide

21 that funds paid to the Board as assessments under

22 subsection (b) shall be used by the Board—

23 (A) to pay the expenses incurred by the

24 Secretary, including salaries and expenses of
15

•HR 1486 IH

1 Government employees, in implementing and

2 administering the order; and

3 (B) to reimburse the Secretary for any ex4 penses incurred by the Secretary in conducting

5 referenda under this Act.

6 (3) LIMITATION ON USE OF ASSESSMENTS.—

7 Except for the first year of operation of the Board,

8 expenses for the administration, maintenance, and

9 functioning of the Board may not exceed 30 percent

10 of the budget.

11 (d) FALSE CLAIMS.—Such order shall provide that

12 any promotion funded with assessments collected under

13 subsection (b) may not make—

14 (1) any false claims on behalf of kiwifruit; and

15 (2) any false statements with respect to the at16 tributes or use of any product that competes with

17 kiwifruit for sale in commerce.

18 (e) PROHIBITION ON USE OF FUNDS.—Such order

19 shall provide that funds collected by the Board under this

20 Act through assessments may not, in any manner, be used

21 for the purpose of influencing legislation or governmental

22 policy or action, except for making recommendations to

23 the Secretary as provided for in this Act.

24 (f) BOOKS, RECORDS, AND REPORTS.—
16

•HR 1486 IH

1 (1) BY THE BOARD.—Such order shall require

2 the Board—

3 (A) to maintain books and records with re4 spect to the receipt and disbursement of funds

5 received by the Board;

6 (B) to submit to the Secretary from time

7 to time such reports as the Secretary may re8 quire for appropriate accounting; and

9 (C) to submit to the Secretary at the end

10 of each fiscal year a complete audit report by

11 an independent auditor regarding the activities

12 of the Board during such fiscal year.

13 (2) BY OTHERS.—So that information and data

14 will be available to the Board and the Secretary that

15 is appropriate or necessary for the effectuation, ad16 ministration, or enforcement of this Act (or any

17 order or regulation issued under this Act), such

18 order shall require handlers and importers who are

19 responsible for the collection, payment, or remittance

20 of assessments under subsection (b)—

21 (A) to maintain and make available for in22 spection by the employees of the Board and the

23 Secretary such books and records as may be re24 quired by the order; and
17

•HR 1486 IH

1 (B) to file, at the times and in the manner

2 and content prescribed by the order, reports re3 garding the collection, payment, or remittance

4 of such assessments.

5 (g) CONFIDENTIALITY.—

6 (1) IN GENERAL.—Such order shall require

7 that all information obtained pursuant to subsection

8 (f)(2) be kept confidential by all officers and employ9 ees of the Department and of the Board. Only such

10 information as the Secretary considers relevant shall

11 be disclosed to the public and only in a suit or ad12 ministrative hearing, brought at the request of the

13 Secretary or to which the Secretary or any officer of

14 the United States is a party, involving the order

15 with respect to which the information was furnished

16 or acquired.

17 (2) LIMITATIONS.—Nothing in this subsection

18 prohibits—

19 (A) issuance of general statements based

20 on the reports of a number of handlers and im21 porters subject to an order, if the statements do

22 not identify the information furnished by any

23 person; or

24 (B) the publication by direction of the Sec25 retary of the name of any person violating an
18

•HR 1486 IH

1 order issued under section 4(a), together with a

2 statement of the particular provisions of the

3 order violated by such person.

4 (3) PENALTY.—Any person who willfully vio5 lates the provisions of this subsection, upon convic6 tion, shall be subject to a fine of not more than

7 $1,000, or to imprisonment for not more than one

8 year, or both, and, if a member, officer, or agent of

9 the board or an employee of the Department, shall

10 be removed from office.

11 (h) WITHHOLDING INFORMATION.—Nothing in this

12 Act shall be construed to authorize the withholding of in13 formation from Congress.

14 SEC. 7. PERMISSIVE TERMS IN ORDER.

15 (a) PERMISSIVE TERMS.—On the recommendation of

16 the Board, and with the approval of the Secretary, an

17 order issued under section 4 may include the authorities

18 specified in this section and such additional terms and

19 conditions as the Secretary considers necessary to effec20 tuate the other provisions of the order and are incidental

21 to, and not inconsistent with, the terms and conditions

22 required by this Act.

23 (b) ALTERNATIVE PAYMENT AND REPORTING

24 SCHEDULES.—Such order may authorize the Board to

25 designate different handler payment and reporting sched-
19

•HR 1486 IH

1 ules to recognize differences in marketing practices and

2 procedures.

3 (c) WORKING GROUPS.—Such order may authorize

4 the Board to convene working groups drawn from produc5 ers, handlers, importers, exporters, or the general public

6 and utilize the expertise of such groups to assist in the

7 development of research and marketing programs for

8 kiwifruit.

9 (d) RESERVE FUNDS.—Such order may authorize the

10 Board to accumulate reserve funds from assessments col11 lected pursuant to section 6(b) to permit an effective and

12 continuous coordinated program of research, promotion,

13 and consumer information in years in which production

14 and assessment income may be reduced. However, any re15 serve fund so established may not exceed the amount

16 budgeted for operation of this Act for one year.

17 (e) PROMOTION ACTIVITIES OUTSIDE UNITED

18 STATES.—Such order may authorize the Board to use,

19 with the approval of the Secretary, funds collected under

20 section 6(b) for the development and expansion of sales

21 in foreign markets of kiwifruit produced in the United

22 States.
20

•HR 1486 IH

1 SEC. 8. INCORPORATION OF PETITION AND REVIEW, EN2 FORCEMENT, AND INVESTIGATION PROVI3 SIONS BY REFERENCE.

4 The following provisions of the Lime Research, Pro5 motion, and Consumer Information Act of 1990 (subtitle

6 D of title XIX of Public Law 101–624) shall apply to this

7 Act and any order or regulation issued under this Act:

8 (1) Section 1957 (7 U.S.C. 6206), relating to

9 petitions filed by persons subject to an order issued

10 under this Act and review of administrative rulings

11 on such petitions.

12 (2) Section 1958 (7 U.S.C. 6207), relating to

13 violations of any order or regulation issued under

14 this Act.

15 (3) Section 1959 (7 U.S.C. 6208), relating to

16 the authority of the Secretary to make investiga17 tions, administer oaths and affirmations, and issue

18 subpoenas in connection with inquiries under this

19 Act.

20 SEC. 9. REFERENDA.

21 (a) INITIAL REFERENDUM.—

22 (1) REFERENDUM REQUIRED.—During the 60-

23 day period immediately preceding the proposed effec24 tive date of an order issued under section 4, the Sec25 retary shall conduct a referendum among kiwifruit

26 producers and importers who will be subject to as-
21

•HR 1486 IH

1 sessments under the order, to ascertain whether pro2 ducers and importers approve of the implementation

3 of the order.

4 (2) APPROVAL OF ORDER.—The order shall be5 come effective, as provided in section 4, if the Sec6 retary determines that the order has been approved

7 by a majority of the producers and importers voting

8 in the referendum and these producers and import9 ers produce and import more than 50 percent of the

10 total volume of kiwifruit produced and imported by

11 persons voting in the referendum.

12 (b) SUBSEQUENT REFERENDA.—The Secretary may

13 periodically conduct a referendum to determine if kiwifruit

14 producers and importers favor the continuation, termi15 nation, or suspension of any order issued under section

16 4 and in effect at the time of the referendum.

17 (c) REQUIRED REFERENDA.—The Secretary shall

18 hold a referendum under subsection (b)—

19 (1) at the end of the six-year period beginning

20 on the effective date of the order and at the end of

21 every six-year period thereafter;

22 (2) at the request of the Board; and

23 (3) if not less than 40 percent of the kiwifruit

24 producers and importers subject to assessments
22

•HR 1486 IH

1 under the order submit a petition requesting such a

2 referendum.

3 (d) VOTE.—Upon completion of a referendum under

4 subsection (b), the Secretary shall suspend or terminate

5 the order that was subject to the referendum at the end

6 of the marketing year if—

7 (1) the suspension or termination of the order

8 is favored by not less than a majority of the produc9 ers and importers voting in the referendum; and

10 (2) these producers and importers produce and

11 import more than 50 percent of the total volume of

12 kiwifruit produced and imported by persons voting

13 in the referendum.

14 (e) CONFIDENTIALITY.—The ballots and other infor15 mation or reports that reveal, or tend to reveal, the vote

16 of any person under this Act as well as the voting list

17 shall be held strictly confidential and shall not be dis18 closed.

19 SEC. 10. SUSPENSION AND TERMINATION OF ORDER BY

20 SECRETARY.

21 (a) UPON FINDING.—If the Secretary finds that an

22 order issued under section 4, or a provision of such an

23 order, obstructs or does not tend to effectuate the pur24 poses of this Act, the Secretary shall terminate or suspend

25 the operation of such order or provision.
23

•HR 1486 IH

1 (b) LIMITATION.—The termination or suspension of

2 any order, or any provision thereof, shall not be considered

3 an order within the meaning of this Act.

4 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

5 There are authorized to be appropriated for each fis6 cal year such funds as are necessary to carry out this Act.

7 SEC. 12. REGULATIONS.

8 The Secretary may issue such regulations as are nec9 essary to carry out this Act.

Æ

HR 1486 IH——2