IIA

103D CONGRESS

1ST SESSION H. R. 3515

IN THE SENATE OF THE UNITED STATES

NOVEMBER 20 (legislative day, NOVEMBER 2), 1993

Received

NOVEMBER 23, 1993

Read twice and referred to the Committee on Agriculture, Nutrition, and

Forestry

AN ACT

To amend the Egg Research and Consumer Information

Act, the Watermelon Research and Promotion Act, and

the Lime Research, Promotion, and Consumer Information Act of 1990 to revise the operation of these Acts

and to authorize the establishment of a fresh cut flowers

and fresh cut greens promotion and consumer information program for the benefit of the floricultural industry,

and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Omnibus Agricultural

5 Research and Promotion Improvement Act’’.
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1 SEC. 2. TABLE OF CONTENTS.

2 The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—EGG RESEARCH AND CONSUMER INFORMATION

Sec. 101. Short title.

Sec. 102. Rate of assessment.

Sec. 103. Exempted egg producers.

TITLE II—WATERMELON RESEARCH AND PROMOTION

Sec. 201. Short title.

Sec. 202. Change to majority vote in referendum procedures.

Sec. 203. Expansion of watermelon plans to entire United States.

Sec. 204. Clarification of differences between producers and handlers.

Sec. 205. Clarification of collection of assessments by the Board.

Sec. 206. Changes to assessment rate not subject to formal rulemaking.

Sec. 207. Elimination of watermelon assessment refund.

Sec. 208. Equitable treatment of watermelon plans.

Sec. 209. Separate consideration of watermelon plan amendments.

TITLE III—FRESH CUT FLOWERS AND FRESH CUT GREENS

PROMOTION AND INFORMATION

Sec. 301. Short title.

Sec. 302. Findings and declaration of policy.

Sec. 303. Definitions.

Sec. 304. Issuance of orders.

Sec. 305. Fresh Cut Flowers and Fresh Cut Greens Promotion Council

(PromoFlor Council).

Sec. 306. Assessments.

Sec. 307. Miscellaneous requirements of order.

Sec. 308. Referenda.

Sec. 309. Petition and review.

Sec. 310. Enforcement.

Sec. 311. Investigations and power to subpoena.

Sec. 312. Confidentiality.

Sec. 313. Authority for Secretary to suspend or terminate order.

Sec. 314. Construction.

Sec. 315. Regulations.

Sec. 316. Authorization of appropriations.

Sec. 317. Separability.

TITLE IV—LIME RESEARCH, PROMOTION, AND CONSUMER

INFORMATION

Sec. 401. Short title.

Sec. 402. Findings and purpose.

Sec. 403. Definition of lime.

Sec. 404. Required terms in orders.

Sec. 405. Initial referendum.
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1 TITLE I—EGG RESEARCH AND

2 CONSUMER INFORMATION

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Egg Research and

5 Consumer Information Improvement Act’’.

6 SEC. 102. RATE OF ASSESSMENT.

7 (a) ASSESSMENT TERMS AND CONDITIONS IN OR8 DERS.—Section 8(e) of the Egg Research and Consumer

9 Information Act (7 U.S.C. 2707(e)) is amended—

10 (1) by designating the first and second sen11 tences as paragraph (1);

12 (2) by designating the fifth and sixth sentences

13 as paragraph (3);

14 (3) by striking the third and fourth sentences

15 and inserting the following new paragraph:

16 ‘‘(2)(A) The rate of assessment shall be prescribed

17 by the order, except that the rate of assessment may not

18 exceed 30 cents per case of commercial eggs or the equiva19 lent thereof.

20 ‘‘(B) The Secretary may amend the order to increase

21 the rate of assessment (subject to the limitation in sub22 paragraph (A)) only if the increase is recommended by the

23 Egg Board and approved by egg producers in a referen24 dum conducted under section 9(b).
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1 ‘‘(C) The Secretary may amend the order to decrease

2 the rate of assessment only if the decrease is recommended

3 by the Egg Board. A decrease in the rate of assessment

4 shall take effect only after the Secretary provides public

5 notice and an opportunity for comment in accordance with

6 section 553 of title 5, United States Code. Sections 556

7 and 557 of such title shall not apply with respect to de8 creasing the rate of assessment.’’; and

9 (4) by conforming the margins of paragraphs

10 (1) and (3) (as so designated) to the margin of

11 paragraph (2).

12 (b) REFERENDUM REQUIREMENTS.—Section 9 of the

13 Egg Research and Consumer Information Act (7 U.S.C.

14 2708) is amended—

15 (1) by designating the first two sentences as

16 subsection (a);

17 (2) by designating the last sentence as sub18 section (c);

19 (3) by inserting after subsection (a) (as so des20 ignated) the following new subsection:

21 ‘‘(b)(1) Whenever the Egg Board determines, based

22 on scientific studies, marketing analysis, or other similar

23 competent evidence, that an increase in assessment rate

24 is needed to ensure that assessments under the order are

25 set at an appropriate level to effectuate the declared policy
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1 of this Act, the Egg Board may request that the Secretary

2 conduct a referendum, as provided in paragraph (2).

3 ‘‘(2) When requested by the Egg Board under para4 graph (1) or (3), the Secretary shall conduct a referendum

5 among egg producers not exempt hereunder who, during

6 a representative period determined by the Secretary, have

7 been engaged in the production of commercial eggs, for

8 the purpose of ascertaining whether such producers ap9 prove the increase in the assessment rate proposed by the

10 Egg Board. The increase in the assessment rate shall take

11 effect if approved or favored by not less than two-thirds

12 of the producers voting in such referendum, or by a major13 ity of the producers voting in such referendum if such ma14 jority produced not less than two-thirds of all the commer15 cial eggs produced by those voting during a representative

16 period defined by the Secretary.

17 ‘‘(3) With respect to the order in effect on the date

18 of the enactment of this subsection, the Egg Board shall

19 undertake to determine under paragraph (1), as soon as

20 practicable after such date of enactment, whether to re21 quest that the Secretary conduct a referendum under

22 paragraph (2). If the Egg Board makes such a request

23 on competent evidence, as provided in paragraph (1), the

24 Secretary shall conduct such referendum as soon as prac-
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1 ticable, but not later than 120 days after receipt of the

2 request from the Egg Board.

3 ‘‘(4) Notwithstanding any other provision of this Act,

4 whenever an increase in the assessment rate and the au5 thority for additional increases is approved by producers

6 in a referendum under this subsection, the Secretary shall

7 amend the order as appropriate to reflect such vote of pro8 ducers. The amendment to the order shall become effective

9 on the date it is issued.’’; and

10 (4) by conforming the margins of subsections

11 (a) and (c) (as so designated) to the margin of sub12 section (b).

13 SEC. 103. EXEMPTED EGG PRODUCERS.

14 (a) INCREASE IN EXEMPTION AMOUNT.—Section

15 12(a)(1) of the Egg Research and Consumer Information

16 Act (7 U.S.C. 2711(a)(1)) is amended by striking ‘‘30,000

17 laying hens’’ and inserting ‘‘75,000 laying hens’’.

18 (b) ISSUANCE OF AMENDMENT TO ORDER.—To im19 plement the amendment made by subsection (a) to the

20 Egg Research and Consumer Information Act, the Sec21 retary of Agriculture shall issue an amendment to the egg

22 promotion and research order issued under such Act. The

23 amendment to the order shall be issued after public notice

24 and opportunity for comment in accordance with section

25 553 of title 5, United States Code. Sections 556 and 557
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1 of such title shall not apply with respect to the amendment

2 to the order. The Secretary shall issue the proposed

3 amendment to the order not later than 30 days after the

4 date of the enactment of this title.

5 (c) EFFECTIVE DATE.—The amendment to the egg

6 promotion and research order required by subsection (b)

7 shall become effective not later than 120 days after the

8 date of the enactment of this Act. The amendment shall

9 not be subject to a referendum under the Egg Research

10 and Consumer Information Act.

11 TITLE II—WATERMELON

12 RESEARCH AND PROMOTION

13 SEC. 201. SHORT TITLE.

14 (a) SHORT TITLE.—This title may be cited as the

15 ‘‘Watermelon Research and Promotion Improvement Act’’.

16 SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM

17 PROCEDURES.

18 Section 1653 of the Watermelon Research and Pro19 motion Act (7 U.S.C. 4912) is amended—

20 (1) by inserting ‘‘(a)’’ after ‘‘SEC. 1653.’’;

21 (2) by striking the third sentence; and

22 (3) inserting at the end the following new sub23 section:

24 ‘‘(b) A plan issued under this subtitle shall not take

25 effect unless the Secretary determines that the issuance
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1 of the plan is approved or favored by a majority of the

2 producers and handlers (and importers if subject to the

3 plan) voting in the referendum.’’.

4 SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE

5 UNITED STATES.

6 (a) DEFINITIONS.—Section 1643 of the Watermelon

7 Research and Promotion Act (7 U.S.C. 4902(3)) is

8 amended—

9 (1) in paragraph (3), by striking ‘‘the forty10 eight contiguous States of’’; and

11 (2) by adding at the end the following new

12 paragraph:

13 ‘‘(10) The term ‘United States’ means each of

14 the several States and the District of Columbia.’’.

15 (b) ISSUANCE OF PLANS.—The last sentence of sec16 tion 1644 of such Act (7 U.S.C. 4903) is amended by

17 striking ‘‘the forty-eight contiguous States of’’.

18 SEC. 204. CLARIFICATION OF DIFFERENCES BETWEEN PRO19 DUCERS AND HANDLERS.

20 Section 1647(c) of the Watermelon Research and

21 Promotion Act (7 U.S.C. 4906(c)) is amended by adding

22 at the end the following:

23 ‘‘(3) If a producer purchases watermelons from other

24 producers, in a combined total volume that is equal to 25

25 percent or more of the producer’s own production, the pro-
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1 ducer shall be eligible to serve on the Board only as a

2 representative of handlers and not as a representative of

3 producers. In addition, if the combined total volume of wa4 termelons handled by a producer from the producer’s own

5 production and purchases from other producers’ produc6 tion is more than 50 percent of the producer’s own produc7 tion, the producer shall be eligible to serve on the Board

8 only as a representative of handlers and not as a rep9 resentative of producers.’’.

10 SEC. 205. CLARIFICATION OF COLLECTION OF ASSESS11 MENTS BY THE BOARD.

12 Section 1647 of the Watermelon Research and Pro13 motion Act (7 U.S.C. 4906) is amended—

14 (1) in subsection (f), by striking ‘‘collection of

15 the assessments by the Board.’’ and inserting ‘‘pay16 ment of the assessments to the Board.’’; and

17 (2) in paragraphs (1) and (3) of subsection (g),

18 by striking ‘‘collected’’ and inserting ‘‘received’’.

19 SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT

20 TO FORMAL RULEMAKING.

21 Section 1647(f) of the Watermelon Research and

22 Promotion Act (7 U.S.C. 4906(f)), as amended by section

23 205(1), is further amended by adding at the end the fol24 lowing new sentences: ‘‘In fixing or changing the rate of

25 assessment pursuant to the plan, the Secretary shall com-
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1 ply with the notice and comment procedures established

2 under section 553 of title 5, United States Code. Sections

3 556 and 557 of such title shall not apply with respect to

4 fixing or changing the rate of assessment.’’.

5 SEC. 207. ELIMINATION OF WATERMELON ASSESSMENT RE6 FUND.

7 Section 1647(h) of the Watermelon Research and

8 Promotion Act (7 U.S.C. 4906(h)) is amended—

9 (1) by striking ‘‘The plan’’ in the first sentence

10 and inserting ‘‘(1) Except as provided in paragraph

11 (2), the plan’’; and

12 (3) by adding at the end the following new

13 paragraphs:

14 ‘‘(2) If approved in the referendum required by sec15 tion 1655(b) relating to the elimination of the assessment

16 refund under paragraph (1), the Secretary shall amend

17 the plan that is in effect on the day before the date of

18 the enactment of the Watermelon Research and Promotion

19 Improvement Act to eliminate such refund provision.

20 ‘‘(3) Notwithstanding paragraph (2), if importers are

21 subject to the plan, the plan shall provide that importers

22 of less than 75,000 pounds of watermelons per year shall

23 be entitled to apply for a refund of the equivalent of the

24 rate of assessment paid by domestic producers. The Sec25 retary may adjust the weight exemption contained in this
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1 paragraph to reflect significant changes in the average

2 yield per acre of watermelons in the United States for the

3 5-year period immediately preceding the year in which the

4 adjustment is made. An adjustment in the weight exemp5 tion under this paragraph may be made only upon the rec6 ommendation of the Board and after the Secretary pro7 vides an opportunity for notice and comment on the pro8 posed adjustment.’’.

9 SEC. 208. EQUITABLE TREATMENT OF WATERMELON

10 PLANS.

11 (a) DEFINITIONS.—Section 1643 of the Watermelon

12 Research and Promotion Act (7 U.S.C. 4902), as amended

13 by section 203(a), is further amended—

14 (1) in paragraph (3), by striking the semicolon

15 at the end and inserting the following: ‘‘or imported

16 into the United States.’’;

17 (2) by redesignating paragraphs (6) and (7) as

18 paragraphs (8) and (9), respectively; and

19 (3) by inserting after paragraph (5) the follow20 ing new paragraphs:

21 ‘‘(6) The term ‘importer’ means any person

22 who imports watermelons into the United States.

23 ‘‘(7) The term ‘plan’ means an order issued by

24 the Secretary under this subtitle.’’.
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1 (b) ISSUANCE OF PLANS.—Section 1644 of such Act

2 (7 U.S.C. 4903), as amended by section 203(b), is further

3 amended—

4 (1) in the first sentence, by striking ‘‘and han5 dlers’’ and inserting ‘‘, handlers, and importers’’;

6 (2) by striking the second sentence; and

7 (3) in the last sentence, by inserting ‘‘or im8 ported into the United States’’ before the period.

9 (c) NOTICE AND HEARINGS.—Section 1645(a) of

10 such Act (7 U.S.C. 4904(a)) is amended—

11 (1) in the first sentence, by striking ‘‘and han12 dlers’’ and inserting ‘‘, handlers, and importers’’;

13 and

14 (2) in the last sentence, by striking ‘‘or han15 dlers’’ and inserting ‘‘, handlers, or importers’’.

16 (d) MEMBERSHIP OF BOARD.—Section 1647(c) of

17 such Act (7 U.S.C. 4906(c)), as amended by section 204,

18 is further amended—

19 (1) by inserting ‘‘(1)’’ after ‘‘(c)’’;

20 (2) in the second sentence, by striking ‘‘pro21 ducer and handler members’’ and inserting ‘‘other

22 members’’; and

23 (3) by adding at the end the following new

24 paragraph:
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1 ‘‘(2) If importers are subject to the plan, the Board

2 shall also include one or more representatives of importers

3 who shall be appointed by the Secretary from nominations

4 submitted by importers in such manner as may be pre5 scribed by the Secretary. Importer representation on the

6 Board shall be proportionate to the percentage of assess7 ments paid by importers to the Board, except that there

8 shall always be at least one representative of importers

9 on the Board. If importers are subject to the plan and

10 fail to select nominees for appointment to the Board, the

11 Secretary may appoint any importers as the representa12 tives of importers. Every 5 years, the Secretary shall

13 evaluate the average annual percentage of assessments

14 paid by importers during the most recent 3-year period

15 and adjust, to the extent possible, the number of importer

16 representatives on the Board.’’.

17 (e) ASSESSMENTS.—Section 1647(g) of such Act (7

18 U.S.C. 4906(g)), as amended by section 205(2), is further

19 amended—

20 (1) in paragraph (4)—

21 (A) by striking ‘‘(4) assessments’’ and in22 serting ‘‘(4) Assessments’’; and

23 (B) by inserting ‘‘in the case of producers

24 and handlers’’ after ‘‘such assessments’’; and
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1 (2) by adding at the end the following new

2 paragraph:

3 ‘‘(5) If importers are subject to the plan, an as4 sessment shall also be made on watermelons im5 ported into the United States by such importers.

6 The rate of assessment for importers (if subject to

7 the plan) shall be equal to the combined rate for

8 producers and handlers.’’.

9 (f) REFUNDS.—Section 1647(h) of such Act (7

10 U.S.C. 4906(h)), as amended by section 207, is further

11 amended—

12 (1) by inserting after ‘‘or handler’’ the first two

13 places it appears the following: ‘‘(or importer if sub14 ject to the plan)’’; and

15 (2) by striking ‘‘or handler’’ the last place it

16 appears and inserting ‘‘, handler, or importer’’.

17 (g) ASSESSMENT PROCEDURES.—Section 1649 of

18 such Act (7 U.S.C. 4908) is amended—

19 (1) in subsection (a)—

20 (A) by inserting ‘‘(1)’’ after ‘‘(a)’’; and

21 (B) by adding at the end the following new

22 paragraph:

23 ‘‘(2) If importers are subject to the plan, each im24 porter required to pay assessments under the plan shall

25 be responsible for payment of the assessments to the
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1 Board, as the Board may direct. The assessment on im2 ported watermelons shall be paid by the importer to the

3 Board at the time of the entry of the watermelons into

4 the United States. Each such importer shall maintain a

5 separate record specifying the total quantity of water6 melons imported into the United States that are included

7 under the terms of the plan, as well as those that are ex8 empt under such plan, and containing such other informa9 tion as may be prescribed by the Board. No more than

10 one assessment shall be made on any imported water11 melons.’’;

12 (2) in subsection (b), by inserting ‘‘and import13 ers’’ after ‘‘Handlers’’; and

14 (3) in subsection (c)(1), by inserting ‘‘or im15 porters’’ after ‘‘handlers’’.

16 (h) INVESTIGATIONS.—Section 1652(a) of such Act

17 (7 U.S.C. 4911(a)) is amended—

18 (1) in the first sentence, by striking ‘‘a handler

19 or any other person’’ and inserting ‘‘a person’’;

20 (2) in the fourth sentence, by inserting ‘‘(or an

21 importer if subject to the plan)’’ after ‘‘a handler’’;

22 and

23 (3) in the last sentence, by striking ‘‘the han24 dler or other person’’ and inserting ‘‘the person’’.
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1 (i) REFERENDUM.—Section 1653 of such Act (7

2 U.S.C. 4912), as amended by section 202, is further

3 amended—

4 (1) in the first sentence—

5 (A) by striking ‘‘and handlers’’ both places

6 it appears and inserting ‘‘, handlers, and im7 porters’’; and

8 (B) by striking ‘‘or handling’’ and insert9 ing ‘‘, handling, or importing’’;

10 (2) by striking the second sentence; and

11 (3) in the sentence beginning ‘‘The ballots’’—

12 (A) by striking ‘‘or handler’’ and inserting

13 ‘‘, handler, or importer’’; and

14 (B) by striking ‘‘or handled’’ and inserting

15 ‘‘, handled, or imported’’.

16 (j) TERMINATION OF PLANS.—Section 1654(b) of

17 such Act (7 U.S.C. 4913(b)) is amended—

18 (1) in the first sentence—

19 (A) by striking ‘‘10 per centum or more’’

20 and inserting ‘‘at least 10 percent of the com21 bined total’’; and

22 (B) by striking ‘‘and handlers’’ both places

23 it appears and inserting ‘‘, handlers, and im24 porters’’;

25 (2) in the second sentence—
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1 (A) by striking ‘‘or handle’’ and inserting

2 ‘‘, handle, or import’’;

3 (B) by striking ‘‘50 per centum’’ and in4 serting ‘‘50 percent of the combined total’’; and

5 (C) by striking ‘‘or handled by the han6 dlers’’ and inserting ‘‘, handled by the handlers,

7 and imported by the importers’’; and

8 (3) by striking the last sentence.

9 (k) CONFORMING AND TECHNICAL AMENDMENTS.—

10 Such Act is further amended—

11 (1) in section 1642(a)(5) (7 U.S.C.

12 4901(a)(5)), by striking ‘‘and handling’’ and insert13 ing ‘‘handling, and importing’’;

14 (2) in the first sentence of section 1642(b) (7

15 U.S.C. 4901(b))—

16 (A) by inserting ‘‘, or imported into the

17 United States,’’ after ‘‘harvested in the United

18 States’’; and

19 (B) by striking ‘‘produced in the United

20 States’’;

21 (3) in section 1643 (7 U.S.C. 4902), as amend22 ed by subsection (a) and section 203—

23 (A) by striking ‘‘subtitle—’’ and inserting

24 ‘‘subtitle:’’;
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1 (B) in paragraphs (1), (2), (3), (4), and

2 (5), by striking ‘‘the term’’ and inserting ‘‘The

3 term’’;

4 (C) in paragraphs (1), (2), (4), and (5), by

5 striking the semicolon at the end and inserting

6 a period;

7 (D) in paragraph (8), as redesignated by

8 subsection (a)(2)—

9 (i) by striking ‘‘the term’’ and insert10 ing ‘‘The term’’; and

11 (ii) by striking ‘‘; and’’ and inserting

12 a period; and

13 (E) in paragraph (9), as redesignated by

14 subsection (a)(2)—

15 (i) by striking ‘‘the term’’ and insert16 ing ‘‘The term’’; and

17 (ii) by striking ‘‘1644’’ and inserting

18 ‘‘1647’’; and

19 (4) in section 1647(g) (7 U.S.C. 4906(g)), as

20 amended by subsection (e) and section 205(2)—

21 (A) by striking ‘‘that—’’ and inserting

22 ‘‘the following:’’;

23 (B) in paragraph (1)—

24 (i) by striking ‘‘(1) funds’’ and insert25 ing ‘‘(1) Funds’’; and
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1 (ii) by striking the semicolon at the

2 end and inserting a period;

3 (C) in paragraph (2)—

4 (i) by striking ‘‘(2) no’’ and inserting

5 ‘‘(2) No’’; and

6 (ii) by striking the semicolon at the

7 end and inserting a period;

8 (D) in paragraph (3)—

9 (i) by striking ‘‘(3) no’’ and inserting

10 ‘‘(3) No’’; and

11 (ii) by striking ‘‘; and’’ and inserting

12 a period.

13 SEC. 209. SEPARATE CONSIDERATION OF WATERMELON

14 PLAN AMENDMENTS.

15 Section 1655 of the Watermelon Research and Pro16 motion Act (7 U.S.C. 4914) is amended—

17 (1) by striking ‘‘The provisions’’ and inserting

18 ‘‘(a) Except as provided in section 1647(f), the pro19 visions’’; and

20 (2) by adding at the end the following new sub21 sections:

22 ‘‘(b) The amendments described in subsection (c)

23 that are required to be made by the Secretary to a plan

24 as a result of the amendments made by the Watermelon

25 Research and Promotion Improvement Act shall be subject
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1 to separate line item voting and approval in a referendum

2 conducted pursuant to section 1653 before the Secretary

3 alters the plan as in effect on the day before the date of

4 the enactment of such Act.

5 ‘‘(c) The amendments referred to in subsection (b)

6 are those amendments required under—

7 ‘‘(1) section 207 of the Watermelon Research

8 and Promotion Improvement Act relating to the

9 elimination of the assessment refund; and

10 ‘‘(2) section 208 of such Act relating to subject11 ing importers to the terms and conditions of the

12 plan.

13 ‘‘(d) When conducting the referendum relating to

14 subjecting importers to the terms and conditions of a plan,

15 the Secretary shall include as eligible voters in the referen16 dum producers, handlers, and importers who would be

17 subject to the plan if the amendments are approved.’’.

18 TITLE III—FRESH CUT FLOWERS

19 AND FRESH CUT GREENS

20 PROMOTION AND INFORMA21 TION

22 SEC. 301. SHORT TITLE.

23 This title may be cited as the ‘‘Fresh Cut Flowers

24 and Fresh Cut Greens Promotion and Information Act’’.
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1 SEC. 302. FINDINGS AND DECLARATION OF POLICY.

2 (a) FINDINGS.—Congress finds the following:

3 (1) Fresh cut flowers and fresh cut greens are

4 an integral part of life in the United States, are en5 joyed by millions of persons every year for a mul6 titude of special purposes (especially important per7 sonal events), and contribute a natural and beautiful

8 element to the human environment.

9 (2) Cut flowers and cut greens are produced by

10 many individual producers throughout the United

11 States as well as in other countries, and are handled

12 and marketed by thousands of small-sized and me13 dium-sized businesses, and such production, han14 dling, and marketing constitute a key segment of the

15 United States horticultural industry and thus a sig16 nificant part of the overall agricultural economy of

17 the United States.

18 (3) Handlers play a vital role in the marketing

19 of cut flowers and cut greens in that they purchase

20 most of the cut flowers and cut greens marketed by

21 producers, prepare the cut flowers and cut greens

22 for retail consumption, serve as intermediary be23 tween source of product and retailer, otherwise fa24 cilitate the entry of cut flowers and cut greens into

25 the current of domestic commerce, and add effi26 ciencies to the market process that ensure the avail-
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1 ability of a much greater variety of product to retail2 ers and consumers.

3 (4) It is widely recognized that it is in the pub4 lic interest and important to the agricultural econ5 omy of the United States to provide an adequate,

6 steady supply of cut flowers and cut greens at rea7 sonable prices to consumers in the United States.

8 (5) Cut flowers and cut greens move in inter9 state and foreign commerce, and cut flowers and cut

10 greens that do not move in such channels of com11 merce, but only in intrastate commerce, directly af12 fect interstate commerce in cut flowers and cut

13 greens.

14 (6) The maintenance and expansion of existing

15 markets and the development of new or improved

16 markets or uses for cut flowers and cut greens are

17 needed to preserve and strengthen the economic via18 bility of the domestic cut flowers and cut greens in19 dustry for the benefit of producers, handlers, retail20 ers, and the entire floral industry.

21 (7) Generic programs of promotion and

22 consumer information can be effective in maintain23 ing and developing markets for cut flowers and cut

24 greens, and have the advantage of equally enhancing
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1 the market position for all cut flowers and cut

2 greens marketed.

3 (8) Because cut flowers and cut greens produc4 ers are primarily agriculture-oriented rather than

5 promotion-oriented, and because the floral marketing

6 industry within the United States is comprised

7 mainly of small-sized and medium-sized businesses,

8 the development and implementation of an adequate

9 and coordinated national program of generic pro10 motion and consumer information necessary for the

11 maintenance of existing markets and the develop12 ment of new markets for cut flowers and cut greens

13 have been prevented.

14 (9) There exist established State and commod15 ity-specific producer-funded programs of promotion

16 and research that are valuable efforts to expand

17 markets for domestic producers of cut flowers and

18 cut greens and that will be able to take advantage

19 of the promotion and consumer information program

20 authorized by this title to enhance their market de21 velopment efforts for domestic producers.

22 (10) An effective and coordinated method for

23 ensuring cooperative and collective action in provid24 ing for and financing a nationwide program of ge25 neric promotion and consumer information is needed
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1 to ensure that the cut flowers and cut greens indus2 try will be able to provide, obtain, and implement

3 programs of promotion and consumer information

4 necessary to maintain, expand, and develop markets

5 for these articles.

6 (11) The most efficient method of financing a

7 nationwide program of generic promotion and

8 consumer information regarding cut flowers and cut

9 greens is to assess cut flowers and cut greens at the

10 point they are sold by handlers into the retail mar11 ket.

12 (b) POLICY AND PURPOSE.—It is declared to be the

13 policy of Congress that it is in the public interest, and

14 it is the purpose of this title, to authorize the establish15 ment pursuant to this title of an orderly procedure for

16 the development and financing (through an adequate as17 sessment on cut flowers and cut greens sold by handlers

18 to retailers and related entities in the United States) of

19 an effective and coordinated program of generic pro20 motion, consumer information, and related research de21 signed to strengthen the position of the cut flowers and

22 cut greens industry in the marketplace and to maintain,

23 develop, and expand markets for cut flowers and cut

24 greens.
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1 SEC. 303. DEFINITIONS.

2 For purposes of this title:

3 (1) CONSUMER INFORMATION.—The term

4 ‘‘consumer information’’ means any action or pro5 gram to provide information to consumers and other

6 persons regarding—

7 (A) appropriate uses of cut flowers or cut

8 greens under varied circumstances; and

9 (B) the care and handling of cut flowers or

10 cut greens.

11 (2) CUT FLOWERS AND CUT GREENS.—

12 (A) IN GENERAL.—The term ‘‘cut flowers’’

13 includes all flowers cut from growing plants and

14 used as fresh-cut flowers, produced either under

15 cover or in field operations. The term ‘‘cut

16 greens’’ includes all cultivated or noncultivated

17 decorative foliage cut from growing plants and

18 used as fresh-cut decorative foliage, produced

19 either under cover or in field operations. The

20 term ‘‘cut greens’’ does not include Christmas

21 trees, and neither term includes foliage plants,

22 floral supplies, or flowering plants.

23 (B) SUBSTANTIAL PORTION.—In any case

24 in which a handler packages cut flowers or cut

25 greens with hard goods in an article, such as a

26 gift basket or similar presentation, for sale to
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1 retailers, the PromoFlor Council may deter2 mine, under procedures set out in the order,

3 that the cut flowers or cut greens in the article

4 do not constitute a substantial portion of the

5 value of the article. Based on such a determina6 tion, the article containing the cut flowers or

7 cut greens shall not be treated as an article of

8 cut flowers or cut greens for purposes of—

9 (i) determining the annual sales of cut

10 flowers and cut greens of a handler under

11 paragraph (4)(C); or

12 (ii) imposing an assessment under

13 section 306.

14 (3) GROSS SALES PRICE.—The term ‘‘gross

15 sales price’’ means the total amount of the trans16 action in a sale of cut flowers or cut greens by a

17 handler.

18 (4) HANDLER DEFINITIONS.—

19 (A) QUALIFIED HANDLER.—

20 (i) IN GENERAL.—The term ‘‘qualified

21 handler’’ means a person (including a co22 operative) operating in the cut flowers or

23 cut greens industry that sells domestic or

24 imported cut flowers or cut greens to re25 tailers and exempt handlers and whose an-
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1 nual sales of cut flowers and cut greens to

2 retailers and exempt handlers are

3 $750,000 or more.

4 (ii) INCLUSIONS.—The term ‘‘quali5 fied handler’’ includes the following:

6 (I) Bouquet manufacturers.

7 (II) Auction houses that clear

8 sales of cut flowers and cut greens to

9 retailers and exempt handlers through

10 a central clearinghouse.

11 (III) Any distribution center that

12 is owned or controlled by a retailer if

13 the predominant retail business activ14 ity of the retailer is floral sales. For

15 purposes of determining sales of cut

16 flowers and cut greens to retailers

17 from any such distribution center,

18 each non-sale transfer to a retailer

19 shall be treated as a sale in an

20 amount calculated as provided in sub21 paragraph (C)(ii).

22 (iii) EXCLUSIONS.—The term ‘‘quali23 fied handler’’ does not include a person

24 who merely physically transports or deliv25 ers cut flowers or cut greens.
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1 (iv) RULES OF CONSTRUCTION FOR

2 DIRECT TO CONSUMER SALES.—The term

3 ‘‘qualified handler’’ includes an importer

4 that sells directly to consumers cut flowers

5 or cut greens that it has imported into the

6 United States and whose sales of such cut

7 flowers or cut greens (as calculated under

8 subparagraph (C)), along with sales of cut

9 flowers and cut greens to retailers or ex10 empt handlers, annually are $750,000 or

11 more. The term ‘‘qualified handler’’ also

12 includes a producer that sells directly to

13 consumers cut flowers or cut greens that it

14 has produced and whose sales of such cut

15 flowers or cut greens (as calculated under

16 subparagraph (C)), along with sales of cut

17 flowers and cut greens to retailers or ex18 empt handlers, annually are $750,000 or

19 more. Each direct sale to consumers by an

20 importer or producer described in this

21 clause shall be treated as a sale to a re22 tailer or exempt handler in an amount cal23 culated as provided in clause (iii) or (iv) of

24 subparagraph (C).
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1 (B) EXEMPT HANDLER.—The term ‘‘ex2 empt handler’’ means a person that would oth3 erwise be considered to be a qualified handler,

4 except that its annual sales of cut flowers and

5 cut greens to retailers and other exempt han6 dlers are less than $750,000.

7 (C) ANNUAL SALES DETERMINED.—

8 (i) IN GENERAL.—For purposes of de9 termining the amount of annual sales of

10 cut flowers and cut greens under subpara11 graphs (A) and (B), the amount of a sale

12 shall be determined on the basis of the

13 gross sales price of product sold.

14 (ii) SPECIAL RULE FOR DISTRIBUTION

15 CENTERS.—In the case of a non-sale trans16 fer of cut flowers or cut greens from a dis17 tribution center, as described in subpara18 graph (A)(ii)(III), the amount of the sale

19 shall be—

20 (I) the price paid by the distribu21 tion center to acquire the cut flowers

22 or cut greens; plus

23 (II) an amount determined by

24 multiplying the acquisition price de25 termined under subclause (I) by a
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1 uniform percentage established by the

2 order to represent a wholesale han3 dler’s mark-up on a sale to a retailer.

4 (iii) SPECIAL RULE FOR DIRECT

5 SALES BY IMPORTERS.—In the case of a

6 direct sale by an importer to a consumer,

7 as described in subparagraph (A)(iv), the

8 amount of the sale shall be—

9 (I) the price paid by the importer

10 to acquire the cut flowers or cut

11 greens; plus

12 (II) an amount determined by

13 multiplying the acquisition price de14 termined under subclause (I) by a

15 uniform percentage established by the

16 order to represent a wholesale han17 dler’s mark-up on a sale to a retailer.

18 (iv) SPECIAL RULE FOR DIRECT

19 SALES BY PRODUCERS.—In the case of a

20 direct sale by a producer to a consumer, as

21 described in subparagraph (A)(iv), the

22 amount of the sale shall be an amount de23 termined by applying to the price paid by

24 the consumer a uniform percentage estab25 lished by the order to represent the cost of
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•HR 3515 RFS

1 producing the article and a wholesale han2 dler’s mark-up on a sale to a retailer.

3 (D) REFERENCE TO OTHER DEFINI4 TIONS.—For purposes of this paragraph, the

5 term ‘‘producer’’ has the meaning given the

6 term ‘‘producers that are qualified handlers’’ in

7 section 305(a)(2)(D)(ii), and the term ‘‘im8 porter’’ has the meaning given the term ‘‘im9 porters that are qualified handlers’’ in section

10 305(a)(2)(D)(iii).

11 (5) PERSON.—The term ‘‘person’’ means any

12 individual, group of individuals, firm, partnership,

13 corporation, joint stock company, association, soci14 ety, cooperative, or other legal entity.

15 (6) PROMOFLOR COUNCIL.—The term

16 ‘‘PromoFlor Council’’ means the Fresh Cut Flowers

17 and Fresh Cut Greens Promotion Council estab18 lished under section 305(a).

19 (7) PROMOTION.—The term ‘‘promotion’’

20 means any action determined by the Secretary to ad21 vance the image, desirability, or marketability of cut

22 flowers or cut greens, including paid advertising.

23 (8) RESEARCH.—The term ‘‘research’’ means

24 market research and studies limited to the support

25 of advertising, market development, and other pro-
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1 motion efforts and consumer information efforts re2 lating to cut flowers or cut greens, including edu3 cational activities.

4 (9) RETAILER.—The term ‘‘retailer’’ means a

5 person (such as a retail florist, supermarket, mass

6 market retail outlet, or other end-use seller as de7 scribed in an order issued under this title) that sells

8 cut flowers or cut greens to consumers. The term

9 shall include any distribution center—

10 (A) owned or controlled by such person, or

11 owned or controlled cooperatively by a group of

12 such persons, if the predominant retail business

13 activity of such person is not floral sales; or

14 (B) independently owned but operated pri15 marily to provide food products to retail stores.

16 An independently owned distribution center covered

17 by subparagraph (B) that is also an importer or pro18 ducer of cut flowers or cut greens shall be subject

19 to the rules of construction set out in paragraph

20 (4)(A)(iv) and, for such purposes only, shall be

21 deemed to be the seller of cut flowers or cut greens

22 directly to the consumer.

23 (10) SECRETARY.—The term ‘‘Secretary’’

24 means the Secretary of Agriculture.
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1 (11) UNITED STATES; STATE.—The terms

2 ‘‘United States’’ and ‘‘State’’ include the fifty States

3 of the United States, the District of Columbia, and

4 all the territories and possessions of the United

5 States.

6 SEC. 304. ISSUANCE OF ORDERS.

7 (a) IN GENERAL.—To effectuate the declared policy

8 of section 302(b), the Secretary shall issue an order under

9 this title applicable to qualified handlers of cut flowers and

10 cut greens. Any such order shall be national in scope. Not

11 more than one order shall be in effect under this title at

12 any one time.

13 (b) PROCEDURES.—

14 (1) PROPOSAL FOR AN ORDER.—The Secretary

15 may propose the issuance of an order under this

16 title. In addition, an industry group that represents

17 a substantial number of the industry members who

18 are to be assessed under the order, or any other per19 son that will be affected by this title, may request

20 the issuance of, and submit a proposal for, such an

21 order.

22 (2) PUBLICATION OF PROPOSAL.—The Sec23 retary shall publish the proposed order and give due

24 notice and opportunity for public comment on the
34

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1 proposed order not later than 60 days after the ear2 lier of—

3 (A) the date on which the Secretary re4 ceives the proposal for the order from an indus5 try group or interested person, as provided in

6 paragraph (1); or

7 (B) the date on which the Secretary deter8 mines to propose the order.

9 (3) ISSUANCE OF ORDER.—After notice and op10 portunity for public comment are provided, the Sec11 retary shall issue the order, taking into consider12 ation the comments received and including in the

13 order provisions necessary to ensure that the order

14 is in conformity with the requirements of this title.

15 The order shall be issued and become effective not

16 later than 180 days after publication of the proposed

17 order.

18 (c) AMENDMENTS.—From time to time, the Sec19 retary may amend an order issued under this title. The

20 provisions of this title applicable to the issuance of an

21 order shall be applicable to amendments to the order.

22 SEC. 305. FRESH CUT FLOWERS AND FRESH CUT GREENS

23 PROMOTION COUNCIL (PROMOFLOR COUN24 CIL).

25 (a) ESTABLISHMENT OF PROMOFLOR COUNCIL.—
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1 (1) ESTABLISHMENT.—The order issued under

2 this title shall provide for the establishment of a

3 Fresh Cut Flowers and Fresh Cut Greens Pro4 motion Council to administer the order. The Sec5 retary shall appoint the members of the PromoFlor

6 Council in the manner provided in paragraphs (2)

7 and (3).

8 (2) APPOINTMENT OF MEMBERS.—

9 (A) DISTRIBUTION OF APPOINTMENTS.—

10 The order shall provide that the membership of

11 the PromoFlor Council shall consist of 23 mem12 bers as follows:

13 (i) Fourteen members selected from

14 among qualified wholesale handlers of do15 mestic or imported cut flowers and cut

16 greens.

17 (ii) Three members selected from

18 among producers that are qualified han19 dlers of cut flowers and cut greens.

20 (iii) Three members selected from

21 among importers that are qualified han22 dlers of cut flowers and cut greens.

23 (iv) One member selected from among

24 retailers of cut flowers and cut greens.
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1 (v) Two members selected from

2 among producers of cut flowers and cut

3 greens that are not qualified handlers or

4 exempt handlers.

5 (B) APPOINTMENT FROM NOMINEES.—The

6 Secretary shall appoint the producer members

7 of the PromoFlor Council required by subpara8 graph (A)(v) from nominees submitted by pro9 ducers of cut flowers and cut greens described

10 in such paragraph. With respect to the other

11 appointments to the PromoFlor Council re12 quired by subparagraph (A), two nominees shall

13 be submitted for each appointment pursuant to

14 the nomination process provided for in para15 graph (3). If nominees are not submitted for an

16 appointment, the Secretary may make the ap17 pointment on a basis to be provided in the

18 order or other regulations of the Secretary.

19 (C) GEOGRAPHICAL CONSIDERATIONS.—In

20 making appointments of qualified wholesale

21 handlers to the PromoFlor Council under sub22 paragraph (A)(i), the Secretary shall take into

23 account the geographical distribution of cut

24 flowers and cut greens markets in the United

25 States. In making appointments of producers of
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1 cut flowers and cut greens to the PromoFlor

2 Council under subparagraph (A)(v), the Sec3 retary shall ensure that one member is selected

4 from among producers located east of the Mis5 sissippi River and one member is selected from

6 among producers located west of the Mississippi

7 River.

8 (D) DEFINITIONS.—For purposes of this

9 subsection:

10 (i) QUALIFIED WHOLESALE HAN11 DLERS.—The term ‘‘qualified wholesale

12 handler’’ means a person in business as a

13 floral wholesale jobber or floral supplier

14 and that is subject to assessments as a

15 qualified handler under the order. For pur16 poses of this clause, the term ‘‘floral

17 wholesale jobber’’ means a person that

18 conducts a commission or other wholesale

19 business in buying and selling cut flowers

20 or cut greens, and the term ‘‘floral sup21 plier’’ means a person engaged in acquir22 ing cut flowers or cut greens to be manu23 factured into floral articles or otherwise

24 processed for resale.
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1 (ii) PRODUCERS THAT ARE QUALIFIED

2 HANDLERS.—The term ‘‘producers that

3 are qualified handlers’’ means those per4 sons that are subject to assessments as a

5 qualified handler under the order and are

6 engaged—

7 (I) in the domestic production,

8 for sale in commerce, of cut flowers or

9 cut greens if the persons own or share

10 in the ownership and risk of loss of

11 the cut flowers or cut greens; or

12 (II) as a first processor of

13 noncultivated cut greens, in receiving

14 the cut greens from the persons that

15 gather them for handling.

16 (iii) IMPORTERS THAT ARE QUALIFIED

17 HANDLERS.—The term ‘‘importers that are

18 qualified handlers’’ means those persons—

19 (I) whose principal activity is the

20 importation of cut flowers or cut

21 greens into the United States (either

22 directly or as an agent, broker, or

23 consignee of any person or nation that

24 produces or handles cut flowers or cut
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1 greens outside the United States for

2 sale in the United States); and

3 (II) that are subject to assess4 ments as a qualified handler under

5 the order.

6 (3) NOMINATION PROCESS.—

7 (A) QUALIFIED HANDLERS.—Nominations

8 for the appointment to the PromoFlor Council

9 of qualified wholesale handlers, producers that

10 are qualified handlers, or importers that are

11 qualified handlers shall be made by qualified

12 wholesale handlers, producers that are qualified

13 handlers, or importers that are qualified han14 dlers, whichever applies, through an election

15 process under regulations prescribed by the

16 Secretary;

17 (B) RETAILERS.—Nominations for the re18 tailer appointment under paragraph (2)(A)(iv)

19 shall be made by the American Floral Market20 ing Council, or successor entity.

21 (4) ALTERNATES.—The order shall provide for

22 the selection of alternate members of the PromoFlor

23 Council by the Secretary under procedures specified

24 in the order.
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1 (5) TERMS.—The order shall provide that each

2 member of the PromoFlor Council shall serve a term

3 of three years. However, of the initial appointments,

4 seven members shall be appointed for a term of two

5 years, eight members shall be appointed for a term

6 of three years, and eight members shall be appointed

7 for a term of four years, as designated by the Sec8 retary at the time of appointment. No member of

9 the PromoFlor Council may serve more than two

10 consecutive terms of three years, except that any

11 member serving an initial term of four years may

12 serve an additional term of three years.

13 (6) COMPENSATION.—Members of the

14 PromoFlor Council shall serve without compensa15 tion, but shall be reimbursed for their expenses in16 curred in performing their duties as members of the

17 PromoFlor Council.

18 (7) EXECUTIVE COMMITTEE.—

19 (A) ESTABLISHMENT.—The order shall au20 thorize the PromoFlor Council to appoint from

21 among its members an executive committee of

22 not more than nine members. The membership

23 of the executive committee initially shall be

24 composed of four members appointed pursuant

25 to clause (i) of subparagraph (2)(A), two mem-
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1 bers appointed pursuant to clause (ii) of such

2 subparagraph, two members appointed pursu3 ant to clause (iii) of such subparagraph, and

4 one member appointed pursuant to clause (iv)

5 of such subparagraph. Thereafter, appoint6 ments to the executive committee shall be made

7 so as to ensure that the committee reflects, to

8 the maximum extent practicable, the member9 ship composition of the PromoFlor Council as a

10 whole. The initial appointments to the executive

11 committee shall be for a term of two years.

12 Thereafter, appointments to the executive com13 mittee shall be for a term of one year.

14 (B) DELEGATION OF AUTHORITY.—The

15 PromoFlor Council may delegate to the execu16 tive committee its authority under the order to

17 hire and manage staff and conduct the routine

18 business of the PromoFlor Council within the

19 policies determined by the PromoFlor Council.

20 (b) RESPONSIBILITIES OF THE PROMOFLOR COUN21 CIL.—

22 (1) IN GENERAL.—The order shall define the

23 responsibilities of the PromoFlor Council, which

24 shall include the general responsibilities described in

25 this subsection.
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1 (2) ADMINISTRATION.—The PromoFlor Council

2 shall administer the order in accordance with its

3 terms and provisions and may prescribe such rules

4 and regulations to effectuate the terms and provi5 sions of the order as the PromoFlor Council consid6 ers appropriate.

7 (3) STAFF.—The PromoFlor Council may em8 ploy such persons as the PromoFlor Council deter9 mines are necessary and set the compensation and

10 define the duties of such persons.

11 (4) MISCELLANEOUS.—The PromoFlor Council

12 may receive complaints regarding violations of the

13 order and shall investigate and report to the Sec14 retary regarding such complaints. The PromoFlor

15 Council may recommend to the Secretary amend16 ments to the order. The PromoFlor Council shall

17 furnish the Secretary with such information as the

18 Secretary may require.

19 (c) BUDGETS.—

20 (1) SUBMISSION OF BUDGETS.—The order shall

21 require the PromoFlor Council to prepare and sub22 mit to the Secretary on a fiscal year basis a budget

23 of the anticipated expenses and disbursements of the

24 Board to implement the order. The budget shall in25 clude projected costs of cut flowers and cut greens
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1 promotion, consumer information, and related re2 search plans and projects.

3 (2) APPROVAL BY SECRETARY REQUIRED.—The

4 PromoFlor Council may not implement a budget

5 submitted under paragraph (1) before the budget is

6 approved by the Secretary.

7 (3) INVESTMENT AUTHORITY.—The order shall

8 provide the PromoFlor Council with the authority to

9 invest, pending disbursement under a plan or

10 project, funds collected through assessments author11 ized under this title. Income from invested funds

12 shall be used only for a purpose for which the in13 vested funds may be used. The investment of such

14 funds shall be made only in—

15 (A) obligations of the United States or any

16 agency thereof;

17 (B) general obligations of any State or any

18 political subdivision thereof;

19 (C) any interest-bearing account or certifi20 cate of deposit of a bank that is a member of

21 the Federal Reserve System; or

22 (D) obligations fully guaranteed as to prin23 cipal and interest by the United States.

24 (4) CONTROL OF ADMINISTRATIVE COSTS.—The

25 order shall provide that, as soon as practicable after
44

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1 the date the order becomes effective and after con2 sultation with the Secretary and other appropriate

3 persons, the PromoFlor Council shall implement a

4 system of cost controls based on normally accepted

5 business practices to ensure that the PromoFlor

6 Council’s annual budgets only include amounts for

7 administrative expenses that cover the minimum ad8 ministrative activities and personnel needed to prop9 erly administer and enforce the order and conduct,

10 supervise, and evaluate plans and projects under the

11 order.

12 (d) PLANS AND PROJECTS.—

13 (1) PROMOTION AND CONSUMER INFORMA14 TION.—The order shall provide for the establish15 ment, implementation, administration, and evalua16 tion by the PromoFlor Council of appropriate plans

17 and projects for advertising, sales promotion, other

18 promotion, and consumer information with respect

19 to cut flowers and cut greens. A plan or project

20 under this paragraph shall be directed toward in21 creasing the general demand for cut flowers or cut

22 greens.

23 (2) RESEARCH.—The order shall provide for

24 the establishment, implementation, administration,

25 and evaluation by the PromoFlor Council of plans
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1 and projects for market development research, re2 search with respect to the sale, distribution, market3 ing, or use of cut flowers or cut greens, and other

4 research with respect to cut flowers or cut greens

5 marketing, promotion, or consumer information. The

6 PromoFlor Council shall provide for the dissemina7 tion of information resulting from research plans

8 and projects under this paragraph.

9 (3) DISBURSEMENT OF FUNDS.—The order

10 shall also provide authority for the disbursement by

11 the PromoFlor Council of necessary funds to carry

12 out the plans and projects under this subsection.

13 (4) SUBMISSION TO SECRETARY.—The order

14 shall provide that the PromoFlor Council shall sub15 mit to the Secretary for approval any proposed plan

16 or project for cut flowers or cut greens promotion,

17 consumer information, or related research under this

18 subsection.

19 (5) APPROVAL BY SECRETARY REQUIRED.—The

20 PromoFlor Council may not implement a plan or

21 project for cut flowers or cut greens promotion,

22 consumer information, or related research before the

23 plan or project is approved by the Secretary.

24 (6) LIMITATIONS.—A plan or project under this

25 subsection may not make a reference to a private
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•HR 3515 RFS

1 brand or trade name, point of origin, or source of

2 supply, except that these limitations shall not pre3 clude the PromoFlor Council from offering its plans

4 and projects for use by commercial parties, under

5 terms and conditions prescribed by the PromoFlor

6 Council and approved by the Secretary. A plan or

7 project may not make use of unfair or deceptive acts

8 or practices with respect to quality or value.

9 (e) CONTRACTS AND AGREEMENTS.—

10 (1) PROMOTION, CONSUMER INFORMATION, AND

11 RELATED RESEARCH PLANS AND PROJECTS.—To en12 sure the efficient use of funds, the order shall pro13 vide that, subject to the approval of the Secretary,

14 the PromoFlor Council may—

15 (A) enter into contracts or agreements for

16 the implementation of any plan or project under

17 subsection (d) for promotion, consumer infor18 mation, or related research with respect to cut

19 flowers or cut greens; and

20 (B) pay costs related to the plan or project

21 with funds received by the PromoFlor Council

22 under the order.

23 (2) REQUIREMENTS OF CONTRACTS AND

24 AGREEMENTS.—The order shall provide that any
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1 contract or agreement under paragraph (1) shall

2 provide that—

3 (A) the contracting or agreeing party shall

4 develop and submit to the PromoFlor Council a

5 plan or project together with a budget or budg6 ets that shall show estimated costs to be in7 curred under the plan or project;

8 (B) the plan or project shall become effec9 tive only upon the approval of the Secretary;

10 and

11 (C) the contracting or agreeing party shall

12 keep accurate records of all of its transactions,

13 account for funds received and expended, make

14 periodic reports to the PromoFlor Council of

15 activities conducted, and make such other re16 ports as the PromoFlor Council or the Sec17 retary may require.

18 (3) OTHER CONTRACTS AND AGREEMENTS.—

19 The order shall provide that the PromoFlor Council

20 also may enter into contracts or agreements for ad21 ministrative services. Any such contract or agree22 ment shall include provisions comparable to those

23 provided in paragraph (2).

24 (f) BOOKS AND RECORDS OF THE PROMOFLOR

25 COUNCIL.—
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1 (1) IN GENERAL.—The order shall require the

2 PromoFlor Council to maintain such books and

3 records (which shall be available to the Secretary for

4 inspection and audit) as the Secretary may pre5 scribe. The PromoFlor Council shall also prepare

6 and submit to the Secretary such reports as the Sec7 retary may require and account for the receipt and

8 disbursement of all funds entrusted to the

9 PromoFlor Council.

10 (2) AUDITS.—The PromoFlor Council shall

11 cause its books and records to be audited by an

12 independent auditor at the end of each fiscal year.

13 A report of each such audit shall be submitted to the

14 Secretary.

15 (3) LISTS OF IMPORTERS.—The order shall re16 quire the staff of the PromoFlor Council to periodi17 cally review lists of importers of cut flowers and cut

18 greens to determine whether persons included in the

19 lists are subject to the order. At the request of the

20 PromoFlor Council, the United States Customs

21 Service shall provide to the PromoFlor Council lists

22 of importers of cut flowers and cut greens.

23 (g) PROHIBITION ON LOBBYING.—The order shall

24 prohibit the use of any funds received by the PromoFlor

25 Council in any manner for the purpose of influencing legis-
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1 lation or government action or policy, except that funds

2 may be used by the PromoFlor Council for the develop3 ment and recommendation to the Secretary of amend4 ments to the order.

5 (h) CONSULTATIONS WITH INDUSTRY EXPERTS.—

6 The order shall provide that the PromoFlor Council may

7 seek advice from and consult with experts from the pro8 duction, import, wholesale, and retail segments of the cut

9 flowers and cut greens industry to assist in the develop10 ment of promotion, consumer information, and related re11 search plans and projects. For such purpose, the order

12 also shall authorize the appointment of special committees

13 composed of persons other than PromoFlor Council mem14 bers. A committee appointed pursuant to the authority

15 provided in this subsection may not provide advice or rec16 ommendations to an agency or officer of the Federal Gov17 ernment, but shall consult directly with the PromoFlor

18 Council.

19 SEC. 306. ASSESSMENTS.

20 (a) AUTHORITY TO IMPOSE ASSESSMENT.—

21 (1) IN GENERAL.—An order issued under this

22 title shall provide that each qualified handler shall

23 pay to the PromoFlor Council, in the manner pre24 scribed by the order, an assessment on each sale of

25 cut flowers or cut greens (other than a sale de-
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1 scribed in subsection (g)) to a retailer or an exempt

2 handler. This assessment requirement shall also

3 apply to each transaction described in paragraph

4 (4).

5 (2) DETERMINATION OF QUALIFIED HANDLER

6 OR EXEMPT HANDLER STATUS.—The order shall

7 contain provisions regarding the making of deter8 minations to determine status as a qualified handler

9 or exempt handler that include the rules and re10 quirements set out in section 303(4) and subsections

11 (a) and (b) of section 307.

12 (3) PUBLISHED LISTS OF HANDLERS.—To fa13 cilitate the payment of assessments under this sec14 tion, the PromoFlor Council shall publish lists of

15 qualified handlers required to pay assessments under

16 the order and exempt handlers.

17 (4) CERTAIN COVERED TRANSACTIONS.—

18 (A) IN GENERAL.—The order shall provide

19 that each non-sale transfer of cut flowers or cut

20 greens to a retailer from a qualified handler

21 that is a distribution center, as described in

22 section 303(4)(A)(ii)(III), and each direct sale

23 of cut flowers or cut greens to a consumer by

24 a qualified handler that is an importer or pro25 ducer, as described in section 303(4)(A)(iv),
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1 shall be treated as a sale of cut flowers or cut

2 greens to a retailer subject to assessments

3 under this subsection.

4 (B) DETERMINATION OF SALE AMOUNT

5 FOR DISTRIBUTION CENTERS.—In the case of a

6 non-sale transfer of cut flowers or cut greens

7 from a distribution center, the amount of the

8 sale shall be considered to be—

9 (i) the price paid by the distribution

10 center to acquire the cut flowers or cut

11 greens; plus

12 (ii) an amount determined by mul13 tiplying acquisition price determined under

14 clause (i) by a uniform percentage estab15 lished by the order to represent a wholesale

16 handler’s mark-up on a sale to a retailer.

17 (C) DETERMINATION OF SALE AMOUNT

18 FOR DIRECT SALES BY IMPORTERS.—In the

19 case of a direct sale by an importer to a

20 consumer, the amount of the sale shall be con21 sidered to be—

22 (i) the price paid by the importer to

23 acquire the cut flowers or cut greens; plus

24 (ii) an amount determined by mul25 tiplying the acquisition price determined
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1 under clause (i) by a uniform percentage

2 established by the order to represent a

3 wholesale handler’s mark-up on a sale to a

4 retailer.

5 (D) DETERMINATION OF SALE AMOUNT

6 FOR DIRECT SALES BY PRODUCERS.—In the

7 case of a direct sale by a producer to a

8 consumer, the amount of the sale shall be con9 sidered to be an amount determined by apply10 ing to the price paid by the consumer a uniform

11 percentage established by the order to represent

12 the cost of producing the article and a whole13 sale handler’s mark-up on a sale to a retailer.

14 (E) ADJUSTMENT OF UNIFORM PERCENT15 AGE.—The PromoFlor Council may recommend

16 to the Secretary changes to the uniform per17 centage established by the order and used to

18 determine the amount of annual sales of han19 dlers under section 303(4) and sale amounts

20 under this paragraph. The Secretary may make

21 a change in the uniform percentage based on

22 such a recommendation only after providing an

23 opportunity for notice and comment regarding

24 the proposed change.
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1 (b) ASSESSMENT RATES.—The order shall comply

2 with the following assessment requirements:

3 (1) INITIAL ASSESSMENT RATE.—The rate of

4 assessment on each sale or transfer of cut flowers or

5 cut greens, for the first three years the order is in

6 effect, shall be one-half of one percent of—

7 (A) the gross sales price of product sold; or

8 (B) in the case of transactions described in

9 subsection (a)(4), the amount of the transaction

10 calculated as provided in such subsection.

11 (2) CHANGES IN ASSESSMENT RATE.—

12 (A) AUTHORIZED AMOUNT OF CHANGE.—

13 Subject to subparagraph (B), after the first

14 three years the order is in effect, the uniform

15 assessment rate may be increased or decreased

16 annually by not more than .25 percent of—

17 (i) the gross sales price of product

18 sold; or

19 (ii) in the case of transactions de20 scribed in subsection (a)(4), the amount of

21 the transaction calculated as provided in

22 such subsection.

23 (B) LIMITATION.—The assessment rate

24 may not exceed one percent of gross sales price

25 or transaction amount.
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1 (C) METHOD OF CHANGING ASSESSMENT

2 AMOUNT.—Any change in the rate of assess3 ment may be made only if adopted by the

4 PromoFlor Council by a two-thirds majority

5 vote and approved by the Secretary as nec6 essary to achieve the objectives of this title. The

7 Secretary may make the change only after pro8 viding an opportunity for notice and comment

9 regarding the proposed change, and the change

10 in the rate of assessment shall be announced by

11 the PromoFlor Council at least 30 days prior to

12 going into effect. A change in the rate of as13 sessment shall not be subject to a vote in a ref14 erendum under section 308.

15 (c) SUBMISSION OF ASSESSMENTS.—The order shall

16 provide that each person required to pay assessments

17 under this section shall remit, to the PromoFlor Council,

18 the assessment due from each sale by that person of cut

19 flowers or cut greens that is subject to an assessment

20 within such time period after the sale (not to exceed 60

21 days from the end of the month in which the sale took

22 place) as specified in the order.

23 (d) REFUNDS FROM ESCROW ACCOUNT.—
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1 (1) ESTABLISHMENT OF ESCROW ACCOUNT.—

2 The order shall provide that the PromoFlor Council

3 shall—

4 (A) establish an escrow account to be used

5 for assessment refunds as needed; and

6 (B) place into the escrow account an

7 amount equal to 10 percent of the total amount

8 of assessments collected during the period be9 ginning on the date the order goes into effect,

10 as provided in section 304(b)(3), and ending on

11 the date the initial referendum on the order

12 provided for in section 308(a) is completed.

13 (2) RIGHT TO RECEIVE REFUND.—

14 (A) IN GENERAL.—The order shall provide

15 that, subject to paragraph (3) and the condi16 tions specified in subparagraph (B), any quali17 fied handler shall have the right to demand and

18 receive from the PromoFlor Council out of the

19 escrow account a one-time refund of any assess20 ments paid by or on behalf of the qualified han21 dler during the time period specified in para22 graph (1)(B), if—

23 (i) the qualified handler is required to

24 pay such assessments;
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1 (ii) the qualified handler does not sup2 port the program established under this

3 title;

4 (iii) the qualified handler demands a

5 refund prior to the conduct of the referen6 dum on the order under section 308(a);

7 and

8 (iv) the order is not approved by

9 qualified handlers in the referendum.

10 (B) CONDITIONS.—The right of any quali11 fied handler to receive refunds under subpara12 graph (A) shall be subject to the following con13 ditions:

14 (i) The demand shall be made in ac15 cordance with regulations, on a form, and

16 within a time period prescribed by the

17 PromoFlor Council.

18 (ii) The refund shall be made only on

19 submission of proof satisfactory to the

20 PromoFlor Council that the qualified han21 dler paid the assessment for which refund

22 is demanded.

23 (iii) If the amount in the escrow ac24 count required under paragraph (1) is not

25 sufficient to refund the total amount of as-
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1 sessments demanded by all qualified han2 dlers determined eligible for refunds and

3 the order is not approved in the referen4 dum on the order under section 308(a),

5 the PromoFlor Council shall prorate the

6 amount of all such refunds among all eligi7 ble qualified handlers that demand a re8 fund.

9 (3) PROGRAM APPROVED.—The order shall pro10 vide that, if the order is approved in the referendum

11 under section 308(a), there shall be no refunds made

12 and all funds in the escrow account shall be re13 turned to the PromoFlor Council for use by the

14 PromoFlor Council in accordance with the other pro15 visions of the order.

16 (e) USE OF ASSESSMENT FUNDS.—The order shall

17 provide that assessment funds (net of any refunds paid

18 out under the terms of the order contained in subsection

19 (d)) shall be used for payment of costs incurred in imple20 menting and administering the order, with provision for

21 a reasonable reserve, and to cover those administrative

22 costs incurred by the Secretary in implementing and ad23 ministering this title, except for the salaries of Govern24 ment employees incurred in conducting referenda.

25 (f) POSTPONEMENT OF COLLECTIONS.—
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1 (1) AUTHORITY.—Notwithstanding any other

2 provision of this title, the PromoFlor Council may

3 grant a postponement of the payment of assessments

4 under this section for any qualified handler that es5 tablishes that it is financially unable to make the

6 payment. The granting of such a postponement shall

7 be considered under application and documentation

8 requirements and review procedures established

9 under rules recommended by the PromoFlor Council,

10 approved by the Secretary, and issued after provid11 ing public notice and an opportunity to comment on

12 the proposed rules.

13 (2) CRITERIA AND RESPONSIBILITY FOR DE14 TERMINATIONS.—To establish that it is financially

15 unable to pay assessments, an applicant for a post16 ponement shall demonstrate that it is insolvent and

17 will be unable to continue to operate if it is required

18 to pay assessments when they are otherwise due. As

19 part of making such a demonstration, the applicant

20 shall submit an opinion of an independent certified

21 pubic accountant and any other documentation re22 quired under rules prescribed under paragraph (1).

23 All books, records, and other documentation submit24 ted by a qualified handler under this paragraph shall
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1 be subject to the confidentiality requirements of sec2 tion 307(d).

3 (3) PERIOD OF POSTPONEMENT.—The time pe4 riod of any postponement and the terms and condi5 tions of payment of assessments that are postponed

6 under this subsection shall be established by the

7 PromoFlor Council, in accordance with rules pre8 scribed under paragraph (1), so as to appropriately

9 reflect the proven needs of the qualified handler.

10 Postponements may be extended under the require11 ments and procedures established pursuant to para12 graph (1) for the grant of initial postponements.

13 (g) EXCLUSION FROM ASSESSMENTS.—The order

14 shall exclude from assessments under the order any sale

15 of cut flowers or cut greens for export from the United

16 States.

17 SEC. 307. MISCELLANEOUS REQUIREMENTS OF ORDER.

18 (a) DETERMINATION OF ANNUAL SALES.—

19 (1) IN GENERAL.—For purposes of applying the

20 $750,000 annual sales limitation to specific persons

21 in order to determine status as a qualified handler

22 or an exempt handler under section 303(4), or to

23 specific facilities in order to determine status as an

24 eligible separate facility under section 308(b)(2), any

25 order issued under this title shall provide that a de-
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1 termination of a person’s or facility’s annual sales

2 volume shall be based on the sales of cut flowers and

3 cut greens by the person or facility during the most

4 recently-completed calendar year.

5 (2) SPECIAL RULE FOR NEW BUSINESSES.—

6 With respect to new businesses and other operations

7 for which complete data on sales during all or part

8 of the most recently-completed calendar year are not

9 available to the PromoFlor Council, the determina10 tion under paragraph (1) may be made using an al11 ternative time period or other alternative procedures

12 specified in the order.

13 (3) REPORTS.—For purposes of this section,

14 the order may require each person that sells cut

15 flowers or cut greens to retailers to submit reports

16 to the PromoFlor Council on annual sales by the

17 person. A report under this subsection shall be sub18 ject to the confidentiality requirements provided in

19 subsection (d).

20 (b) RULE OF ATTRIBUTION.—

21 (1) IN GENERAL.—For purposes of determining

22 the annual sales volume of a person or a separate

23 facility of a person, sales attributable to a person

24 shall include—
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1 (A) in those cases in which the person is

2 an individual, sales attributable to such per3 son’s spouse, children, grandchildren, parents,

4 and grandparents;

5 (B) in those cases in which the person is

6 a partnership or member of a partnership, sales

7 attributable to the partnership and other part8 ners of the partnership;

9 (C) for both individuals and partnerships,

10 sales attributable to any corporation or other

11 entity in which the person owns more than 50

12 percent of the stock or (if the entity is not a

13 corporation) that the person controls; and

14 (D) in those cases in which the person is

15 a corporation, sales attributable to any cor16 porate subsidiary or other corporation or entity

17 in which the corporation owns more than 50

18 percent of the stock or (if the entity is not a

19 corporation) that the corporation controls.

20 (2) TREATMENT OF CERTAIN STOCK AND OWN21 ERSHIP INTERESTS.—For purposes of this sub22 section, stock or an ownership interest in an entity

23 that is owned by the spouse, children, grandchildren,

24 parents, grandparents, or partners of an individual,

25 or by a partnership in which a person is a partner,
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1 or by a corporation more than 50 percent of the

2 stock of which is owned by a person, shall be treated

3 as owned by the individual or person.

4 (c) BOOKS, RECORDS, AND REPORTS.—So that infor5 mation is available to the Secretary and the PromoFlor

6 Council for the administration and enforcement of this

7 title, the order, or any regulation issued under this title,

8 the order shall provide that each qualified handler shall—

9 (1) maintain, and make available for inspection,

10 such books and records as may be required by the

11 order; and

12 (2) file reports at the time, in the manner, and

13 having the content prescribed by the order, to the

14 end that information is made available to the Sec15 retary and the PromoFlor Council as is appropriate

16 for the administration or enforcement of this title,

17 the order, or any regulation issued under this title.

18 (d) CONFIDENTIALITY REQUIRED.—

19 (1) IN GENERAL.—Information obtained by the

20 PromoFlor Council from books, records, or reports

21 required to be maintained under this section shall be

22 kept confidential by all officers and employees of the

23 Department of Agriculture and by the staff and

24 agents of the PromoFlor Council. Such information

25 may be disclosed to the public only in a suit or ad-
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1 ministrative hearing involving the order that is

2 brought at the request of the Secretary (or to which

3 the Secretary or any officer of the United States is

4 a party), and then, only to the extent the Secretary

5 considers relevant.

6 (2) RULE OF CONSTRUCTION.—Nothing in

7 paragraph (1) prohibits—

8 (A) the issuance of general statements,

9 based on the reports, of the number of persons

10 subject to the order or statistical data collected

11 therefrom, which statements do not identify the

12 information furnished by any person; or

13 (B) the publication, by direction of the

14 Secretary, of the name of any person violating

15 the order, together with a statement of the par16 ticular provisions of the order violated by the

17 person.

18 (e) OTHER TERMS OF ORDER.—The order shall con19 tain such other terms and provisions, not inconsistent with

20 this title, as are necessary to effectuate this title, including

21 provision for the assessment of interest and a charge for

22 each late payment of assessments under this section.

23 SEC. 308. REFERENDA.

24 (a) REQUIREMENT FOR INITIAL REFERENDUM.—
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1 (1) CONDUCT.—Not later than 36 months after

2 the issuance of an order under section 304(b)(3),

3 the Secretary shall conduct a referendum among

4 qualified handlers required to pay assessments under

5 the order to ascertain whether or not the order then

6 in effect shall be continued.

7 (2) APPROVAL OF ORDER NEEDED.—The order

8 shall be continued only if the Secretary determines

9 that the order has been approved by a simple major10 ity of all votes cast in the referendum. If the order

11 is not approved, the Secretary shall terminate the

12 order as provided in subsection (d).

13 (b) VOTES PERMITTED.—

14 (1) IN GENERAL.—Each qualified handler eligi15 ble to vote in a referendum under this section may

16 cast one vote for each separate facility of the person

17 that is an eligible separate facility, as determined

18 under paragraph (2).

19 (2) ELIGIBLE SEPARATE FACILITY.—

20 (A) SEPARATE FACILITY.—A handling or

21 marketing facility of a qualified handler shall be

22 considered a separate facility if it is physically

23 located away from other facilities of the quali24 fied handler or its business function is substan25 tially different than the functions of other fa-
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1 cilities owned or operated by the qualified han2 dler.

3 (B) ELIGIBILITY.—A separate facility of a

4 qualified handler shall be considered to be an

5 eligible separate facility if the annual sales of

6 cut flowers and cut greens to retailers and ex7 empt handlers from the facility are $750,000 or

8 more.

9 (C) ANNUAL SALES DETERMINED.—Sub10 paragraphs (A) and (C) of section 303(4) shall

11 apply for purposes of determining the amount

12 of annual sales of cut flowers and cut greens

13 under subparagraph (B).

14 (c) SUSPENSION OR TERMINATION REFERENDA.—

15 Effective beginning three years after the date on which

16 an order issued under this title is approved in a referen17 dum conducted under subsection (a), the Secretary—

18 (1) at the Secretary’s discretion, may conduct

19 at any time a referendum of qualified handlers re20 quired to pay assessments under the order to ascer21 tain whether or not qualified handlers favor suspen22 sion or termination of the order; and

23 (2) whenever requested by the PromoFlor

24 Council or by a representative group comprising 30

25 percent or more of all qualified handlers required to
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1 pay assessments under the order, shall conduct a

2 referendum of all qualified handlers required to pay

3 such assessments to ascertain whether or not quali4 fied handlers favor suspension or termination of the

5 order.

6 (d) SUSPENSION OR TERMINATION.—If, as a result

7 of the referendum conducted under subsection (a), the

8 Secretary determines that the order has not been approved

9 by a simple majority of all votes cast in the referendum,

10 or as a result of a referendum conducted under subsection

11 (c), the Secretary determines that suspension or termi12 nation of the order is favored by a simple majority of all

13 votes cast in the referendum, the Secretary shall—

14 (1) within six months after the referendum,

15 suspend or terminate, as appropriate, collection of

16 assessments under the order; and

17 (2) suspend or terminate, as appropriate, activi18 ties under the order in an orderly manner as soon

19 as practicable.

20 (e) MANNER OF CONDUCTING REFERENDA.—

21 Referenda under this section shall be conducted in such

22 manner as is determined appropriate by the Secretary.

23 SEC. 309. PETITION AND REVIEW.

24 (a) PETITION AND HEARING.—
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1 (1) PETITION.—A person subject to an order

2 issued under this title may file with the Secretary a

3 petition—

4 (A) stating that the order, any provision of

5 the order, or any obligation imposed in connec6 tion with the order is not in accordance with

7 law; and

8 (B) requesting a modification of the order

9 or an exemption from the order.

10 (2) HEARING.—The petitioner shall be given

11 the opportunity for a hearing on a petition filed

12 under paragraph (1), in accordance with regulations

13 issued by the Secretary. Any such hearing shall be

14 conducted in accordance with section 311(b)(2) and

15 be held within the United States judicial district in

16 which the person’s residence or principal place of

17 business is located.

18 (3) RULING.—After a hearing under paragraph

19 (2), the Secretary shall make a ruling on the peti20 tion, which shall be final if in accordance with law.

21 (b) REVIEW.—

22 (1) COMMENCEMENT OF ACTION.—The district

23 courts of the United States in any district in which

24 a person that is a petitioner under subsection (a) re25 sides or carries on business are hereby vested with
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1 jurisdiction to review the Secretary’s ruling on the

2 person’s petition, if a complaint for that purpose is

3 filed within 20 days after the date of the entry of

4 the ruling by the Secretary.

5 (2) PROCESS.—Service of process in proceed6 ings under this subsection shall be conducted in ac7 cordance with the Federal Rules of Civil Procedure.

8 (3) REMAND.—If the court in a proceeding

9 under this subsection determines that the Sec10 retary’s ruling on the person’s petition is not in ac11 cordance with law, the court shall remand the mat12 ter to the Secretary with directions either—

13 (A) to make such ruling as the court shall

14 determine to be in accordance with law; or

15 (B) to take such further action as, in the

16 opinion of the court, the law requires.

17 (c) ENFORCEMENT UNDER SECTION 310.—The

18 pendency of proceedings instituted under this section shall

19 not impede, hinder, or delay the Attorney General or the

20 Secretary from obtaining relief under section 310.

21 SEC. 310. ENFORCEMENT.

22 (a) JURISDICTION.—The several district courts of the

23 United States are vested with jurisdiction specifically to

24 enforce, and to prevent and restrain any person from vio-
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1 lating, this title or an order or regulation made or issued

2 by the Secretary under this title.

3 (b) REFERRAL TO ATTORNEY GENERAL.—The Sec4 retary shall refer to the Attorney General for appropriate

5 action all cases of a violation of this title or an order or

6 regulation made or issued by the Secretary under this

7 title, except that the Secretary is not required to refer to

8 the Attorney General such a violation if the Secretary be9 lieves that the administration and enforcement of this title

10 would be adequately served by administrative action under

11 subsection (c) or suitable written notice or warning to the

12 person who committed or is committing the violation.

13 (c) CIVIL PENALTIES AND ORDERS.—

14 (1) CIVIL PENALTIES.—A person that violates a

15 provision of this title, or an order or regulation is16 sued by the Secretary under this title, or who fails

17 or refuses to pay, collect, or remit any assessment

18 or fee duly required of the person under an order or

19 regulation issued under this title, may be assessed

20 by the Secretary—

21 (A) a civil penalty of not less than $500

22 nor more than $5,000 for each such violation;

23 and

24 (B) in the case of a willful failure to remit

25 an assessment as required by an order or regu-
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1 lation, an additional penalty equal to the

2 amount of the assessment.

3 (2) TREATMENT AS SEPARATE OFFENSES.—

4 Each violation described in paragraph (1) shall be

5 treated as a separate offense.

6 (3) CEASE AND DESIST ORDERS.—In addition

7 to or in lieu of a civil penalty under paragraph (1),

8 the Secretary may issue an order requiring a person

9 to cease and desist from continuing a violation of

10 this title or an order or regulation issued under this

11 title.

12 (4) NOTICE AND HEARING.—No penalty shall

13 be assessed or cease and desist order issued by the

14 Secretary under this subsection unless the Secretary

15 gives the person against whom the penalty is as16 sessed or the order is issued notice and opportunity

17 for a hearing before the Secretary with respect to

18 the violation. The hearing shall be conducted in ac19 cordance with section 311(b)(2) and be held within

20 the United States judicial district in which the per21 son’s residence or principal place of business is lo22 cated.

23 (5) FINALITY.—The penalty assessed or cease

24 and desist order issued under this subsection shall

25 be final and conclusive unless the person against
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1 whom the penalty is assessed or the order is issued

2 files an appeal with the appropriate district court of

3 the United States in accordance with subsection (d).

4 (d) REVIEW BY DISTRICT COURT.—

5 (1) COMMENCEMENT OF ACTION.—Any person

6 against whom a violation is found and a civil penalty

7 assessed or cease and desist order issued under sub8 section (c) may obtain review of the penalty or order

9 by—

10 (A) filing, within the 30-day period begin11 ning on the date the penalty is assessed or

12 order issued, a notice of appeal in the district

13 court of the United States for the district in

14 which the person resides or carries on business,

15 or in the United States district court for the

16 District of Columbia; and

17 (B) simultaneously sending a copy of the

18 notice by certified mail to the Secretary.

19 (2) FILING OF RECORD.—Upon the filing of a

20 notice of appeal under paragraph (1), the Secretary

21 shall promptly file in the district court in which the

22 notice of appeal is filed a certified copy of the record

23 on which the Secretary found that the person had

24 committed a violation.
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1 (3) STANDARD OF REVIEW.—A finding of the

2 Secretary shall be set aside under this subsection

3 only if the finding is found to be unsupported by

4 substantial evidence.

5 (e) FAILURE TO OBEY AN ORDER.—A person that

6 fails to obey a cease and desist order issued under sub7 section (c) after the order has become final and

8 unappealable, or after the appropriate United States dis9 trict court has entered a final judgment in favor of the

10 Secretary, shall be subject to a civil penalty assessed by

11 the Secretary of not more than $5,000 for each offense,

12 after opportunity for a hearing and for judicial review

13 under the procedures specified in subsections (c) and (d).

14 Each day during which the failure continues shall be con15 sidered as a separate violation of the order.

16 (f) FAILURE TO PAY A PENALTY.—If a person fails

17 to pay a civil penalty assessed under subsection (c) or (e)

18 after the penalty has become final and unappealable, or

19 after the appropriate United States district court has en20 tered final judgment in favor of the Secretary, the Sec21 retary shall refer the matter to the Attorney General for

22 recovery of the amount assessed in any United States dis23 trict court in which the person resides or carries on busi24 ness. In such action, the validity and appropriateness of

25 the civil penalty shall not be subject to review.
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1 (g) ADDITIONAL REMEDIES.—The remedies provided

2 in this title shall be in addition to, and not exclusive of,

3 other remedies that may be available.

4 SEC. 311. INVESTIGATIONS AND POWER TO SUBPOENA.

5 (a) INVESTIGATIONS.—The Secretary may make such

6 investigations as the Secretary considers necessary for the

7 effective administration of this title, or to determine

8 whether any person has engaged or is engaging in any

9 act that constitutes a violation of this title, or any order

10 or regulation issued under this title.

11 (b) SUBPOENAS, OATHS, AND AFFIRMATIONS.—

12 (1) INVESTIGATIONS.—For the purpose of an

13 investigation under subsection (a), the Secretary

14 may administer oaths and affirmations, and issue

15 subpoenas to require the production of any records

16 that are relevant to the inquiry. The production of

17 any such records may be required from any place in

18 the United States.

19 (2) ADMINISTRATIVE HEARINGS.—For the pur20 pose of an administrative hearing held under section

21 309(a)(2) or 310(c)(4), the presiding officer may ad22 minister oaths and affirmations, subpoena witnesses,

23 compel their attendance, take evidence, and require

24 the production of any records that are relevant to

25 the inquiry. The attendance of witnesses and the
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1 production of any such records may be required

2 from any place in the United States.

3 (c) AID OF COURTS.—

4 (1) IN GENERAL.—In the case of contumacy by,

5 or refusal to obey a subpoena issued to, any person,

6 the Secretary may invoke the aid of any court of the

7 United States within the jurisdiction of which the in8 vestigation or proceeding is carried on, or where the

9 person resides or carries on business, in order to en10 force a subpoena issued under subsection (b). The

11 court may issue an order requiring the person to

12 comply with such a subpoena. Any failure to obey

13 the order of the court may be punished by the court

14 as a contempt thereof.

15 (2) PROCESS.—Process in any proceeding

16 under this subsection may be served in the United

17 States judicial district in which the person being

18 proceeded against resides or carries on business or

19 wherever the person may be found.

20 SEC. 312. CONFIDENTIALITY.

21 (a) PROHIBITION.—No information on how a person

22 voted in a referendum conducted under this title shall be

23 made public.

24 (b) PENALTY.—Any person knowingly violating sub25 section (a) or the confidentiality terms of an order, as de-
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1 scribed in section 307(d), on conviction shall be subject

2 to a fine of not less than $1,000 nor more than $10,000

3 or to imprisonment for not more than one year, or both,

4 and, if an officer or employee of the Department of Agri5 culture or the PromoFlor Council, shall be removed from

6 office.

7 (c) ADDITIONAL PROHIBITION.—No information ob8 tained under this title may be made available to any agen9 cy or officer of the Federal Government for any purpose

10 other than the implementation of this title and any inves11 tigatory or enforcement actions necessary for the imple12 mentation of this title.

13 (d) WITHHOLDING INFORMATION FROM CONGRESS

14 PROHIBITED.—Nothing in this title authorizes the with15 holding of information from Congress.

16 SEC. 313. AUTHORITY FOR SECRETARY TO SUSPEND OR

17 TERMINATE ORDER.

18 Whenever the Secretary finds that an order issued

19 under this title, or any provision of the order, obstructs

20 or does not tend to effectuate the declared policy of this

21 title, the Secretary shall terminate or suspend the oper22 ation of the order or provision under such terms as the

23 Secretary determines appropriate.
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1 SEC. 314. CONSTRUCTION.

2 (a) TERMINATION OR SUSPENSION NOT AN

3 ORDER.—The termination or suspension of an order, or

4 any provision thereof, shall not be considered an order

5 under the meaning of this title.

6 (b) PRODUCER RIGHTS.—Nothing in this title may

7 be construed to provide for control of production or other8 wise limit the right of individual cut flowers and cut

9 greens producers to produce cut flowers and cut greens.

10 This title seeks to treat all persons producing cut flowers

11 and cut greens fairly and to implement any order estab12 lished hereunder equitably in every respect.

13 (c) OTHER PROGRAMS.—Nothing in this title may be

14 construed to preempt or supersede any other program re15 lating to cut flowers or cut greens promotion and

16 consumer information organized and operated under the

17 laws of the United States or any State.

18 SEC. 315. REGULATIONS.

19 The Secretary may issue such regulations as are nec20 essary to carry out this title and the powers vested in the

21 Secretary by this title, including regulations relating to the

22 assessment of late payment charges and interest.

23 SEC. 316. AUTHORIZATION OF APPROPRIATIONS.

24 (a) IN GENERAL.—There are authorized to be appro25 priated for each fiscal year such sums as may be necessary

26 to carry out this title.
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1 (b) ADMINISTRATIVE EXPENSES.—Funds appro2 priated under subsection (a) may not be used for payment

3 of the expenses or expenditures of the PromoFlor Council

4 in administering any provision of an order issued under

5 this title.

6 SEC. 317. SEPARABILITY.

7 If any provision of this title or the application thereof

8 to any person or circumstances is held invalid, the validity

9 of the remainder of the title and of the application of such

10 provision to other persons and circumstances shall not be

11 affected thereby.

12 TITLE IV—LIME RESEARCH,

13 PROMOTION, AND CONSUMER

14 INFORMATION

15 SEC. 401. SHORT TITLE.

16 This title may be cited as the ‘‘Lime Research, Pro17 motion, and Consumer Information Improvement Act’’.

18 SEC. 402. FINDINGS AND PURPOSE.

19 (a) FINDINGS.—Congress finds the following:

20 (1) The Lime Research, Promotion, and

21 Consumer Information Act of 1990 (7 U.S.C. 6201

22 et seq.) was enacted on November 28, 1990, for the

23 purpose of establishing an orderly procedure for the

24 development and financing of an effective and co25 ordinated program of research, promotion, and
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1 consumer information to strengthen the domestic

2 and foreign markets for limes.

3 (2) The lime research, promotion, and

4 consumer information order required by such Act be5 came effective on January 27, 1992.

6 (3) Although the intent of such Act was to

7 cover seedless limes, the definition of the term

8 ‘‘lime’’ in section 1953(6) of such Act (7 U.S.C.

9 6202(6)) applies to seeded limes. Therefore, the Act

10 and the order need to be revised before a research,

11 promotion, and consumer information program on

12 seedless limes can go into effect.

13 (4) Since the enactment of such Act, the United

14 States production of fresh market limes has plum15 meted and the volume of imports has risen dramati16 cally. The drop in United States production is pri17 marily due to damage to lime orchards in the State

18 of Florida by Hurricane Andrew in August 1992.

19 United States production is not expected to reach

20 pre-Hurricane Andrew levels for possibly two to

21 three years because a majority of the limes produced

22 in the United States are produced in Florida.

23 (b) PURPOSES.—The purpose of this Act is to amend

24 the Lime Research, Promotion, and Consumer Informa25 tion Act of 1990 (7 U.S.C. 6201 et seq.)—
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1 (1) to cover seedless rather than seeded limes;

2 (2) to increase the exemption level;

3 (3) to delay the initial referendum date; and

4 (4) to alter the composition of the Lime Board.

5 SEC. 403. DEFINITION OF LIME.

6 Section 1953(6) of the Lime Research, Promotion,

7 and Consumer Information Act of 1990 (7 U.S.C.

8 6202(6)) is amended by striking ‘‘citrus aurantifolia’’ and

9 inserting ‘‘citrus latifolia’’.

10 SEC. 404. REQUIRED TERMS IN ORDERS.

11 (a) COMPOSITION OF LIME BOARD.—Subsection (b)

12 of section 1955 of the Lime Research, Promotion, and

13 Consumer Information Act of 1990 (7 U.S.C. 6204) is

14 amended—

15 (1) in paragraph (1)(A), by striking ‘‘7’’ and

16 inserting ‘‘3’’;

17 (2) in paragraph (2)(B), by striking ‘‘7’’ and

18 inserting ‘‘3’’; and

19 (3) in paragraph (2)(F), by adding at the end

20 the following new sentence: ‘‘The Secretary shall ter21 minate the initial Board established under this sub22 section as soon as practicable after the date of the

23 enactment of the Lime Research, Promotion, and

24 Consumer Information Improvement Act.’’.
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1 (b) ALLOCATION OF MEMBERS.—Subsection (b)(2)

2 of such section is amended—

3 (1) in subparagraph (B) (as amended by sub4 section (a)(2)), by adding at the end the following

5 new sentence: ‘‘Of these producer members, 2 mem6 bers shall be appointed from the district east of the

7 Mississippi River and 1 member shall be appointed

8 from the district west of the Mississippi River.’’; and

9 (2) in subparagraph (C), by adding at the end

10 the following new sentence: ‘‘Of these importer

11 members, 1 member shall be appointed from the dis12 trict east of the Mississippi River and 2 members

13 shall be appointed from the district west of the Mis14 sissippi River.’’.

15 (c) TERMS OF MEMBERS.—Subsection (b)(4) of such

16 section is amended—

17 (1) by striking ‘‘Members of’’ and all that fol18 lows through ‘‘appointed—’’ and inserting ‘‘The ini19 tial members of the Board appointed under the

20 amended order shall serve a term of 30 months.

21 Subsequent appointments to the Board shall be for

22 a term of 3 years, except that—’’;

23 (2) in subparagraph (A), by striking ‘‘3’’ and

24 inserting ‘‘2’’;
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1 (3) in subparagraph (B), by striking ‘‘4’’ and

2 inserting ‘‘2’’; and

3 (4) in subparagraph (C), by striking ‘‘4’’ and

4 inserting ‘‘3’’.

5 (d) DE MINIMIS EXCEPTION.—Subsection (d)(5) of

6 such section is amended by striking ‘‘35,000’’ each place

7 it appears and inserting ‘‘200,000’’.

8 SEC. 405. INITIAL REFERENDUM.

9 Section 1960(a) of the Lime Research, Promotion,

10 and Consumer Information Act of 1990 (7 U.S.C.

11 6209(a)) is amended by striking ‘‘Not later than 2 years

12 after the date on which the Secretary first issues an order

13 under section 1954(a),’’ and inserting ‘‘Not later than 30

14 months after the date on which the collection of assess15 ments begins under the order pursuant to section

16 1955(d),’’.

Passed the House of Representatives November 20,

1993.

Attest: DONNALD K. ANDERSON,

Clerk.

By DALLAS L. DENDY, JR.,

Assistant to the Clerk.

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