103D CONGRESS

1ST SESSION H. R. 3515

AN ACT

To amend the Egg Research and Consumer Inforand for other purposes. gram for the benefit of the floricultural industry, greens promotion and consumer information pro- establishment of a fresh cut flowers and fresh cut the operation of these Acts and to authorize the and Consumer Information Act of 1990 to revise motion Act, and the Lime Research, Promotion, mation Act, the Watermelon Research and Pro-
103D CONGRESS

1ST SESSION H. R. 3515

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,
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1 SECTION 1. SHORT TITLE.

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

3 Research and Promotion Improvement Act’’.

4 SEC. 2. TABLE OF CONTENTS.

5 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
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Sec. 401. Short title.

Sec. 402. Findings and purpose.

Sec. 403. Definition of lime.

Sec. 404. Required terms in orders.

Sec. 405. Initial referendum.

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
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1 Egg Board and approved by egg producers in a referen2 dum conducted under section 9(b).

3 ‘‘(C) The Secretary may amend the order to decrease

4 the rate of assessment only if the decrease is recommended

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

6 shall take effect only after the Secretary provides public

7 notice and an opportunity for comment in accordance with

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

9 and 557 of such title shall not apply with respect to de10 creasing the rate of assessment.’’; and

11 (4) by conforming the margins of paragraphs

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

13 paragraph (2).

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

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

16 2708) is amended—

17 (1) by designating the first two sentences as

18 subsection (a);

19 (2) by designating the last sentence as sub20 section (c);

21 (3) by inserting after subsection (a) (as so des22 ignated) the following new subsection:

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

24 on scientific studies, marketing analysis, or other similar

25 competent evidence, that an increase in assessment rate
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1 is needed to ensure that assessments under the order are

2 set at an appropriate level to effectuate the declared policy

3 of this Act, the Egg Board may request that the Secretary

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

5 ‘‘(2) When requested by the Egg Board under para6 graph (1) or (3), the Secretary shall conduct a referendum

7 among egg producers not exempt hereunder who, during

8 a representative period determined by the Secretary, have

9 been engaged in the production of commercial eggs, for

10 the purpose of ascertaining whether such producers ap11 prove the increase in the assessment rate proposed by the

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

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

14 of the producers voting in such referendum, or by a major15 ity of the producers voting in such referendum if such ma16 jority produced not less than two-thirds of all the commer17 cial eggs produced by those voting during a representative

18 period defined by the Secretary.

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

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

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

22 practicable after such date of enactment, whether to re23 quest that the Secretary conduct a referendum under

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

25 on competent evidence, as provided in paragraph (1), the
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1 Secretary shall conduct such referendum as soon as prac2 ticable, but not later than 120 days after receipt of the

3 request from the Egg Board.

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

5 whenever an increase in the assessment rate and the au6 thority for additional increases is approved by producers

7 in a referendum under this subsection, the Secretary shall

8 amend the order as appropriate to reflect such vote of pro9 ducers. The amendment to the order shall become effective

10 on the date it is issued.’’; and

11 (4) by conforming the margins of subsections

12 (a) and (c) (as so designated) to the margin of sub13 section (b).

14 SEC. 103. EXEMPTED EGG PRODUCERS.

15 (a) INCREASE IN EXEMPTION AMOUNT.—Section

16 12(a)(1) of the Egg Research and Consumer Information

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

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

19 (b) ISSUANCE OF AMENDMENT TO ORDER.—To im20 plement the amendment made by subsection (a) to the

21 Egg Research and Consumer Information Act, the Sec22 retary of Agriculture shall issue an amendment to the egg

23 promotion and research order issued under such Act. The

24 amendment to the order shall be issued after public notice

25 and opportunity for comment in accordance with section
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1 553 of title 5, United States Code. Sections 556 and 557

2 of such title shall not apply with respect to the amendment

3 to the order. The Secretary shall issue the proposed

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

5 date of the enactment of this title.

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

7 promotion and research order required by subsection (b)

8 shall become effective not later than 120 days after the

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

10 not be subject to a referendum under the Egg Research

11 and Consumer Information Act.

12 TITLE II—WATERMELON

13 RESEARCH AND PROMOTION

14 SEC. 201. SHORT TITLE.

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

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

17 SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM

18 PROCEDURES.

19 Section 1653 of the Watermelon Research and Pro20 motion Act (7 U.S.C. 4912) is amended—

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

22 (2) by striking the third sentence; and

23 (3) inserting at the end the following new sub24 section:
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1 ‘‘(b) A plan issued under this subtitle shall not take

2 effect unless the Secretary determines that the issuance

3 of the plan is approved or favored by a majority of the

4 producers and handlers (and importers if subject to the

5 plan) voting in the referendum.’’.

6 SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE

7 UNITED STATES.

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

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

10 amended—

11 (1) in paragraph (3), by striking ‘‘the forty12 eight contiguous States of’’; and

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

14 paragraph:

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

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

17 (b) ISSUANCE OF PLANS.—The last sentence of sec18 tion 1644 of such Act (7 U.S.C. 4903) is amended by

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

20 SEC. 204. CLARIFICATION OF DIFFERENCES BETWEEN PRO21 DUCERS AND HANDLERS.

22 Section 1647(c) of the Watermelon Research and

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

24 at the end the following:
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1 ‘‘(3) If a producer purchases watermelons from other

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

3 percent or more of the producer’s own production, the pro4 ducer shall be eligible to serve on the Board only as a

5 representative of handlers and not as a representative of

6 producers. In addition, if the combined total volume of wa7 termelons handled by a producer from the producer’s own

8 production and purchases from other producers’ produc9 tion is more than 50 percent of the producer’s own produc10 tion, the producer shall be eligible to serve on the Board

11 only as a representative of handlers and not as a rep12 resentative of producers.’’.

13 SEC. 205. CLARIFICATION OF COLLECTION OF ASSESS14 MENTS BY THE BOARD.

15 Section 1647 of the Watermelon Research and Pro16 motion Act (7 U.S.C. 4906) is amended—

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

18 the assessments by the Board.’’ and inserting ‘‘pay19 ment of the assessments to the Board.’’; and

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

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

22 SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT

23 TO FORMAL RULEMAKING.

24 Section 1647(f) of the Watermelon Research and

25 Promotion Act (7 U.S.C. 4906(f)), as amended by section
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1 205(1), is further amended by adding at the end the fol2 lowing new sentences: ‘‘In fixing or changing the rate of

3 assessment pursuant to the plan, the Secretary shall com4 ply with the notice and comment procedures established

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

6 556 and 557 of such title shall not apply with respect to

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

8 SEC. 207. ELIMINATION OF WATERMELON ASSESSMENT RE9 FUND.

10 Section 1647(h) of the Watermelon Research and

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

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

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

14 (2), the plan’’; and

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

16 paragraphs:

17 ‘‘(2) If approved in the referendum required by sec18 tion 1655(b) relating to the elimination of the assessment

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

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

21 the enactment of the Watermelon Research and Promotion

22 Improvement Act to eliminate such refund provision.

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

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

25 of less than 75,000 pounds of watermelons per year shall
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1 be entitled to apply for a refund of the equivalent of the

2 rate of assessment paid by domestic producers. The Sec3 retary may adjust the weight exemption contained in this

4 paragraph to reflect significant changes in the average

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

6 5-year period immediately preceding the year in which the

7 adjustment is made. An adjustment in the weight exemp8 tion under this paragraph may be made only upon the rec9 ommendation of the Board and after the Secretary pro10 vides an opportunity for notice and comment on the pro11 posed adjustment.’’.

12 SEC. 208. EQUITABLE TREATMENT OF WATERMELON

13 PLANS.

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

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

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

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

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

19 into the United States.’’;

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

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

22 (3) by inserting after paragraph (5) the follow23 ing new paragraphs:

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

25 who imports watermelons into the United States.
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1 ‘‘(7) The term ‘plan’ means an order issued by

2 the Secretary under this subtitle.’’.

3 (b) ISSUANCE OF PLANS.—Section 1644 of such Act

4 (7 U.S.C. 4903), as amended by section 203(b), is further

5 amended—

6 (1) in the first sentence, by striking ‘‘and han7 dlers’’ and inserting ‘‘, handlers, and importers’’;

8 (2) by striking the second sentence; and

9 (3) in the last sentence, by inserting ‘‘or im10 ported into the United States’’ before the period.

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

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

13 (1) in the first sentence, by striking ‘‘and han14 dlers’’ and inserting ‘‘, handlers, and importers’’;

15 and

16 (2) in the last sentence, by striking ‘‘or han17 dlers’’ and inserting ‘‘, handlers, or importers’’.

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

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

20 is further amended—

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

22 (2) in the second sentence, by striking ‘‘pro23 ducer and handler members’’ and inserting ‘‘other

24 members’’; and
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1 (3) by adding at the end the following new

2 paragraph:

3 ‘‘(2) If importers are subject to the plan, the Board

4 shall also include one or more representatives of importers

5 who shall be appointed by the Secretary from nominations

6 submitted by importers in such manner as may be pre7 scribed by the Secretary. Importer representation on the

8 Board shall be proportionate to the percentage of assess9 ments paid by importers to the Board, except that there

10 shall always be at least one representative of importers

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

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

13 Secretary may appoint any importers as the representa14 tives of importers. Every 5 years, the Secretary shall

15 evaluate the average annual percentage of assessments

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

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

18 representatives on the Board.’’.

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

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

21 amended—

22 (1) in paragraph (4)—

23 (A) by striking ‘‘(4) assessments’’ and in24 serting ‘‘(4) Assessments’’; and
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1 (B) by inserting ‘‘in the case of producers

2 and handlers’’ after ‘‘such assessments’’; and

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

4 paragraph:

5 ‘‘(5) If importers are subject to the plan, an as6 sessment shall also be made on watermelons im7 ported into the United States by such importers.

8 The rate of assessment for importers (if subject to

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

10 producers and handlers.’’.

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

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

13 amended—

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

15 places it appears the following: ‘‘(or importer if sub16 ject to the plan)’’; and

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

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

19 (g) ASSESSMENT PROCEDURES.—Section 1649 of

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

21 (1) in subsection (a)—

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

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

24 paragraph:
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1 ‘‘(2) If importers are subject to the plan, each im2 porter required to pay assessments under the plan shall

3 be responsible for payment of the assessments to the

4 Board, as the Board may direct. The assessment on im5 ported watermelons shall be paid by the importer to the

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

7 the United States. Each such importer shall maintain a

8 separate record specifying the total quantity of water9 melons imported into the United States that are included

10 under the terms of the plan, as well as those that are ex11 empt under such plan, and containing such other informa12 tion as may be prescribed by the Board. No more than

13 one assessment shall be made on any imported water14 melons.’’;

15 (2) in subsection (b), by inserting ‘‘and import16 ers’’ after ‘‘Handlers’’; and

17 (3) in subsection (c)(1), by inserting ‘‘or im18 porters’’ after ‘‘handlers’’.

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

20 (7 U.S.C. 4911(a)) is amended—

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

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

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

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

25 and
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1 (3) in the last sentence, by striking ‘‘the han2 dler or other person’’ and inserting ‘‘the person’’.

3 (i) REFERENDUM.—Section 1653 of such Act (7

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

5 amended—

6 (1) in the first sentence—

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

8 it appears and inserting ‘‘, handlers, and im9 porters’’; and

10 (B) by striking ‘‘or handling’’ and insert11 ing ‘‘, handling, or importing’’;

12 (2) by striking the second sentence; and

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

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

15 ‘‘, handler, or importer’’; and

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

17 ‘‘, handled, or imported’’.

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

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

20 (1) in the first sentence—

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

22 and inserting ‘‘at least 10 percent of the com23 bined total’’; and
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1 (B) by striking ‘‘and handlers’’ both places

2 it appears and inserting ‘‘, handlers, and im3 porters’’;

4 (2) in the second sentence—

5 (A) by striking ‘‘or handle’’ and inserting

6 ‘‘, handle, or import’’;

7 (B) by striking ‘‘50 per centum’’ and in8 serting ‘‘50 percent of the combined total’’; and

9 (C) by striking ‘‘or handled by the han10 dlers’’ and inserting ‘‘, handled by the handlers,

11 and imported by the importers’’; and

12 (3) by striking the last sentence.

13 (k) CONFORMING AND TECHNICAL AMENDMENTS.—

14 Such Act is further amended—

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

16 4901(a)(5)), by striking ‘‘and handling’’ and insert17 ing ‘‘handling, and importing’’;

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

19 U.S.C. 4901(b))—

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

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

22 States’’; and

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

24 States’’;
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1 (3) in section 1643 (7 U.S.C. 4902), as amend2 ed by subsection (a) and section 203—

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

4 ‘‘subtitle:’’;

5 (B) in paragraphs (1), (2), (3), (4), and

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

7 term’’;

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

9 striking the semicolon at the end and inserting

10 a period;

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

12 subsection (a)(2)—

13 (i) by striking ‘‘the term’’ and insert14 ing ‘‘The term’’; and

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

16 a period; and

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

18 subsection (a)(2)—

19 (i) by striking ‘‘the term’’ and insert20 ing ‘‘The term’’; and

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

22 ‘‘1647’’; and

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

24 amended by subsection (e) and section 205(2)—
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1 (A) by striking ‘‘that—’’ and inserting

2 ‘‘the following:’’;

3 (B) in paragraph (1)—

4 (i) by striking ‘‘(1) funds’’ and insert5 ing ‘‘(1) Funds’’; and

6 (ii) by striking the semicolon at the

7 end and inserting a period;

8 (C) in paragraph (2)—

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

10 ‘‘(2) No’’; and

11 (ii) by striking the semicolon at the

12 end and inserting a period;

13 (D) in paragraph (3)—

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

15 ‘‘(3) No’’; and

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

17 a period.

18 SEC. 209. SEPARATE CONSIDERATION OF WATERMELON

19 PLAN AMENDMENTS.

20 Section 1655 of the Watermelon Research and Pro21 motion Act (7 U.S.C. 4914) is amended—

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

23 ‘‘(a) Except as provided in section 1647(f), the pro24 visions’’; and
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1 (2) by adding at the end the following new sub2 sections:

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

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

5 as a result of the amendments made by the Watermelon

6 Research and Promotion Improvement Act shall be subject

7 to separate line item voting and approval in a referendum

8 conducted pursuant to section 1653 before the Secretary

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

10 the enactment of such Act.

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

12 are those amendments required under—

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

14 and Promotion Improvement Act relating to the

15 elimination of the assessment refund; and

16 ‘‘(2) section 208 of such Act relating to subject17 ing importers to the terms and conditions of the

18 plan.

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

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

21 the Secretary shall include as eligible voters in the referen22 dum producers, handlers, and importers who would be

23 subject to the plan if the amendments are approved.’’.
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1 TITLE III—FRESH CUT FLOWERS

2 AND FRESH CUT GREENS

3 PROMOTION AND INFORMA4 TION

5 SEC. 301. SHORT TITLE.

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

7 and Fresh Cut Greens Promotion and Information Act’’.

8 SEC. 302. FINDINGS AND DECLARATION OF POLICY.

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

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

11 an integral part of life in the United States, are en12 joyed by millions of persons every year for a mul13 titude of special purposes (especially important per14 sonal events), and contribute a natural and beautiful

15 element to the human environment.

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

17 many individual producers throughout the United

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

19 and marketed by thousands of small-sized and me20 dium-sized businesses, and such production, han21 dling, and marketing constitute a key segment of the

22 United States horticultural industry and thus a sig23 nificant part of the overall agricultural economy of

24 the United States.
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1 (3) Handlers play a vital role in the marketing

2 of cut flowers and cut greens in that they purchase

3 most of the cut flowers and cut greens marketed by

4 producers, prepare the cut flowers and cut greens

5 for retail consumption, serve as intermediary be6 tween source of product and retailer, otherwise fa7 cilitate the entry of cut flowers and cut greens into

8 the current of domestic commerce, and add effi9 ciencies to the market process that ensure the avail10 ability of a much greater variety of product to retail11 ers and consumers.

12 (4) It is widely recognized that it is in the pub13 lic interest and important to the agricultural econ14 omy of the United States to provide an adequate,

15 steady supply of cut flowers and cut greens at rea16 sonable prices to consumers in the United States.

17 (5) Cut flowers and cut greens move in inter18 state and foreign commerce, and cut flowers and cut

19 greens that do not move in such channels of com20 merce, but only in intrastate commerce, directly af21 fect interstate commerce in cut flowers and cut

22 greens.

23 (6) The maintenance and expansion of existing

24 markets and the development of new or improved

25 markets or uses for cut flowers and cut greens are
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1 needed to preserve and strengthen the economic via2 bility of the domestic cut flowers and cut greens in3 dustry for the benefit of producers, handlers, retail4 ers, and the entire floral industry.

5 (7) Generic programs of promotion and

6 consumer information can be effective in maintain7 ing and developing markets for cut flowers and cut

8 greens, and have the advantage of equally enhancing

9 the market position for all cut flowers and cut

10 greens marketed.

11 (8) Because cut flowers and cut greens produc12 ers are primarily agriculture-oriented rather than

13 promotion-oriented, and because the floral marketing

14 industry within the United States is comprised

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

16 the development and implementation of an adequate

17 and coordinated national program of generic pro18 motion and consumer information necessary for the

19 maintenance of existing markets and the develop20 ment of new markets for cut flowers and cut greens

21 have been prevented.

22 (9) There exist established State and commod23 ity-specific producer-funded programs of promotion

24 and research that are valuable efforts to expand

25 markets for domestic producers of cut flowers and
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1 cut greens and that will be able to take advantage

2 of the promotion and consumer information program

3 authorized by this title to enhance their market de4 velopment efforts for domestic producers.

5 (10) An effective and coordinated method for

6 ensuring cooperative and collective action in provid7 ing for and financing a nationwide program of ge8 neric promotion and consumer information is needed

9 to ensure that the cut flowers and cut greens indus10 try will be able to provide, obtain, and implement

11 programs of promotion and consumer information

12 necessary to maintain, expand, and develop markets

13 for these articles.

14 (11) The most efficient method of financing a

15 nationwide program of generic promotion and

16 consumer information regarding cut flowers and cut

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

18 point they are sold by handlers into the retail mar19 ket.

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

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

22 it is the purpose of this title, to authorize the establish23 ment pursuant to this title of an orderly procedure for

24 the development and financing (through an adequate as25 sessment on cut flowers and cut greens sold by handlers
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1 to retailers and related entities in the United States) of

2 an effective and coordinated program of generic pro3 motion, consumer information, and related research de4 signed to strengthen the position of the cut flowers and

5 cut greens industry in the marketplace and to maintain,

6 develop, and expand markets for cut flowers and cut

7 greens.

8 SEC. 303. DEFINITIONS.

9 For purposes of this title:

10 (1) CONSUMER INFORMATION.—The term

11 ‘‘consumer information’’ means any action or pro12 gram to provide information to consumers and other

13 persons regarding—

14 (A) appropriate uses of cut flowers or cut

15 greens under varied circumstances; and

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

17 cut greens.

18 (2) CUT FLOWERS AND CUT GREENS.—

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

20 includes all flowers cut from growing plants and

21 used as fresh-cut flowers, produced either under

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

23 greens’’ includes all cultivated or noncultivated

24 decorative foliage cut from growing plants and

25 used as fresh-cut decorative foliage, produced
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1 either under cover or in field operations. The

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

3 trees, and neither term includes foliage plants,

4 floral supplies, or flowering plants.

5 (B) SUBSTANTIAL PORTION.—In any case

6 in which a handler packages cut flowers or cut

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

8 gift basket or similar presentation, for sale to

9 retailers, the PromoFlor Council may deter10 mine, under procedures set out in the order,

11 that the cut flowers or cut greens in the article

12 do not constitute a substantial portion of the

13 value of the article. Based on such a determina14 tion, the article containing the cut flowers or

15 cut greens shall not be treated as an article of

16 cut flowers or cut greens for purposes of—

17 (i) determining the annual sales of cut

18 flowers and cut greens of a handler under

19 paragraph (4)(C); or

20 (ii) imposing an assessment under

21 section 306.

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

23 sales price’’ means the total amount of the trans24 action in a sale of cut flowers or cut greens by a

25 handler.
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1 (4) HANDLER DEFINITIONS.—

2 (A) QUALIFIED HANDLER.—

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

4 handler’’ means a person (including a co5 operative) operating in the cut flowers or

6 cut greens industry that sells domestic or

7 imported cut flowers or cut greens to re8 tailers and exempt handlers and whose an9 nual sales of cut flowers and cut greens to

10 retailers and exempt handlers are

11 $750,000 or more.

12 (ii) INCLUSIONS.—The term ‘‘quali13 fied handler’’ includes the following:

14 (I) Bouquet manufacturers.

15 (II) Auction houses that clear

16 sales of cut flowers and cut greens to

17 retailers and exempt handlers through

18 a central clearinghouse.

19 (III) Any distribution center that

20 is owned or controlled by a retailer if

21 the predominant retail business activ22 ity of the retailer is floral sales. For

23 purposes of determining sales of cut

24 flowers and cut greens to retailers

25 from any such distribution center,
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1 each non-sale transfer to a retailer

2 shall be treated as a sale in an

3 amount calculated as provided in sub4 paragraph (C)(ii).

5 (iii) EXCLUSIONS.—The term ‘‘quali6 fied handler’’ does not include a person

7 who merely physically transports or deliv8 ers cut flowers or cut greens.

9 (iv) RULES OF CONSTRUCTION FOR

10 DIRECT TO CONSUMER SALES.—The term

11 ‘‘qualified handler’’ includes an importer

12 that sells directly to consumers cut flowers

13 or cut greens that it has imported into the

14 United States 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. The term ‘‘qualified handler’’ also

20 includes a producer that sells directly to

21 consumers cut flowers or cut greens that it

22 has produced and whose sales of such cut

23 flowers or cut greens (as calculated under

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

25 flowers and cut greens to retailers or ex-
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1 empt handlers, annually are $750,000 or

2 more. Each direct sale to consumers by an

3 importer or producer described in this

4 clause shall be treated as a sale to a re5 tailer or exempt handler in an amount cal6 culated as provided in clause (iii) or (iv) of

7 subparagraph (C).

8 (B) EXEMPT HANDLER.—The term ‘‘ex9 empt handler’’ means a person that would oth10 erwise be considered to be a qualified handler,

11 except that its annual sales of cut flowers and

12 cut greens to retailers and other exempt han13 dlers are less than $750,000.

14 (C) ANNUAL SALES DETERMINED.—

15 (i) IN GENERAL.—For purposes of de16 termining the amount of annual sales of

17 cut flowers and cut greens under subpara18 graphs (A) and (B), the amount of a sale

19 shall be determined on the basis of the

20 gross sales price of product sold.

21 (ii) SPECIAL RULE FOR DISTRIBUTION

22 CENTERS.—In the case of a non-sale trans23 fer of cut flowers or cut greens from a dis24 tribution center, as described in subpara-
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1 graph (A)(ii)(III), the amount of the sale

2 shall be—

3 (I) the price paid by the distribu4 tion center to acquire the cut flowers

5 or cut greens; plus

6 (II) an amount determined by

7 multiplying the acquisition price de8 termined under subclause (I) by a

9 uniform percentage established by the

10 order to represent a wholesale han11 dler’s mark-up on a sale to a retailer.

12 (iii) SPECIAL RULE FOR DIRECT

13 SALES BY IMPORTERS.—In the case of a

14 direct sale by an importer to a consumer,

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

16 amount of the sale shall be—

17 (I) the price paid by the importer

18 to acquire the cut flowers or cut

19 greens; plus

20 (II) an amount determined by

21 multiplying the acquisition price de22 termined under subclause (I) by a

23 uniform percentage established by the

24 order to represent a wholesale han25 dler’s mark-up on a sale to a retailer.
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1 (iv) SPECIAL RULE FOR DIRECT

2 SALES BY PRODUCERS.—In the case of a

3 direct sale by a producer to a consumer, as

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

5 amount of the sale shall be an amount de6 termined by applying to the price paid by

7 the consumer a uniform percentage estab8 lished by the order to represent the cost of

9 producing the article and a wholesale han10 dler’s mark-up on a sale to a retailer.

11 (D) REFERENCE TO OTHER DEFINI12 TIONS.—For purposes of this paragraph, the

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

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

15 section 305(a)(2)(D)(ii), and the term ‘‘im16 porter’’ has the meaning given the term ‘‘im17 porters that are qualified handlers’’ in section

18 305(a)(2)(D)(iii).

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

20 individual, group of individuals, firm, partnership,

21 corporation, joint stock company, association, soci22 ety, cooperative, or other legal entity.

23 (6) PROMOFLOR COUNCIL.—The term

24 ‘‘PromoFlor Council’’ means the Fresh Cut Flowers
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1 and Fresh Cut Greens Promotion Council estab2 lished under section 305(a).

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

4 means any action determined by the Secretary to ad5 vance the image, desirability, or marketability of cut

6 flowers or cut greens, including paid advertising.

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

8 market research and studies limited to the support

9 of advertising, market development, and other pro10 motion efforts and consumer information efforts re11 lating to cut flowers or cut greens, including edu12 cational activities.

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

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

15 market retail outlet, or other end-use seller as de16 scribed in an order issued under this title) that sells

17 cut flowers or cut greens to consumers. The term

18 shall include any distribution center—

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

20 owned or controlled cooperatively by a group of

21 such persons, if the predominant retail business

22 activity of such person is not floral sales; or

23 (B) independently owned but operated pri24 marily to provide food products to retail stores.
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1 An independently owned distribution center covered

2 by subparagraph (B) that is also an importer or pro3 ducer of cut flowers or cut greens shall be subject

4 to the rules of construction set out in paragraph

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

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

7 directly to the consumer.

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

9 means the Secretary of Agriculture.

10 (11) UNITED STATES; STATE.—The terms

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

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

13 all the territories and possessions of the United

14 States.

15 SEC. 304. ISSUANCE OF ORDERS.

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

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

18 this title applicable to qualified handlers of cut flowers and

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

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

21 any one time.

22 (b) PROCEDURES.—

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

24 may propose the issuance of an order under this

25 title. In addition, an industry group that represents
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1 a substantial number of the industry members who

2 are to be assessed under the order, or any other per3 son that will be affected by this title, may request

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

5 order.

6 (2) PUBLICATION OF PROPOSAL.—The Sec7 retary shall publish the proposed order and give due

8 notice and opportunity for public comment on the

9 proposed order not later than 60 days after the ear10 lier of—

11 (A) the date on which the Secretary re12 ceives the proposal for the order from an indus13 try group or interested person, as provided in

14 paragraph (1); or

15 (B) the date on which the Secretary deter16 mines to propose the order.

17 (3) ISSUANCE OF ORDER.—After notice and op18 portunity for public comment are provided, the Sec19 retary shall issue the order, taking into consider20 ation the comments received and including in the

21 order provisions necessary to ensure that the order

22 is in conformity with the requirements of this title.

23 The order shall be issued and become effective not

24 later than 180 days after publication of the proposed

25 order.
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1 (c) AMENDMENTS.—From time to time, the Sec2 retary may amend an order issued under this title. The

3 provisions of this title applicable to the issuance of an

4 order shall be applicable to amendments to the order.

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

6 PROMOTION COUNCIL (PROMOFLOR COUN7 CIL).

8 (a) ESTABLISHMENT OF PROMOFLOR COUNCIL.—

9 (1) ESTABLISHMENT.—The order issued under

10 this title shall provide for the establishment of a

11 Fresh Cut Flowers and Fresh Cut Greens Pro12 motion Council to administer the order. The Sec13 retary shall appoint the members of the PromoFlor

14 Council in the manner provided in paragraphs (2)

15 and (3).

16 (2) APPOINTMENT OF MEMBERS.—

17 (A) DISTRIBUTION OF APPOINTMENTS.—

18 The order shall provide that the membership of

19 the PromoFlor Council shall consist of 23 mem20 bers as follows:

21 (i) Fourteen members selected from

22 among qualified wholesale handlers of do23 mestic or imported cut flowers and cut

24 greens.
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1 (ii) Three members selected from

2 among producers that are qualified han3 dlers of cut flowers and cut greens.

4 (iii) Three members selected from

5 among importers that are qualified han6 dlers of cut flowers and cut greens.

7 (iv) One member selected from among

8 retailers of cut flowers and cut greens.

9 (v) Two members selected from

10 among producers of cut flowers and cut

11 greens that are not qualified handlers or

12 exempt handlers.

13 (B) APPOINTMENT FROM NOMINEES.—The

14 Secretary shall appoint the producer members

15 of the PromoFlor Council required by subpara16 graph (A)(v) from nominees submitted by pro17 ducers of cut flowers and cut greens described

18 in such paragraph. With respect to the other

19 appointments to the PromoFlor Council re20 quired by subparagraph (A), two nominees shall

21 be submitted for each appointment pursuant to

22 the nomination process provided for in para23 graph (3). If nominees are not submitted for an

24 appointment, the Secretary may make the ap-
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•HR 3515 EH

1 pointment on a basis to be provided in the

2 order or other regulations of the Secretary.

3 (C) GEOGRAPHICAL CONSIDERATIONS.—In

4 making appointments of qualified wholesale

5 handlers to the PromoFlor Council under sub6 paragraph (A)(i), the Secretary shall take into

7 account the geographical distribution of cut

8 flowers and cut greens markets in the United

9 States. In making appointments of producers of

10 cut flowers and cut greens to the PromoFlor

11 Council under subparagraph (A)(v), the Sec12 retary shall ensure that one member is selected

13 from among producers located east of the Mis14 sissippi River and one member is selected from

15 among producers located west of the Mississippi

16 River.

17 (D) DEFINITIONS.—For purposes of this

18 subsection:

19 (i) QUALIFIED WHOLESALE HAN20 DLERS.—The term ‘‘qualified wholesale

21 handler’’ means a person in business as a

22 floral wholesale jobber or floral supplier

23 and that is subject to assessments as a

24 qualified handler under the order. For pur25 poses of this clause, the term ‘‘floral
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1 wholesale jobber’’ means a person that

2 conducts a commission or other wholesale

3 business in buying and selling cut flowers

4 or cut greens, and the term ‘‘floral sup5 plier’’ means a person engaged in acquir6 ing cut flowers or cut greens to be manu7 factured into floral articles or otherwise

8 processed for resale.

9 (ii) PRODUCERS THAT ARE QUALIFIED

10 HANDLERS.—The term ‘‘producers that

11 are qualified handlers’’ means those per12 sons that are subject to assessments as a

13 qualified handler under the order and are

14 engaged—

15 (I) in the domestic production,

16 for sale in commerce, of cut flowers or

17 cut greens if the persons own or share

18 in the ownership and risk of loss of

19 the cut flowers or cut greens; or

20 (II) as a first processor of

21 noncultivated cut greens, in receiving

22 the cut greens from the persons that

23 gather them for handling.
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1 (iii) IMPORTERS THAT ARE QUALIFIED

2 HANDLERS.—The term ‘‘importers that are

3 qualified handlers’’ means those persons—

4 (I) whose principal activity is the

5 importation of cut flowers or cut

6 greens into the United States (either

7 directly or as an agent, broker, or

8 consignee of any person or nation that

9 produces or handles cut flowers or cut

10 greens outside the United States for

11 sale in the United States); and

12 (II) that are subject to assess13 ments as a qualified handler under

14 the order.

15 (3) NOMINATION PROCESS.—

16 (A) QUALIFIED HANDLERS.—Nominations

17 for the appointment to the PromoFlor Council

18 of qualified wholesale handlers, producers that

19 are qualified handlers, or importers that are

20 qualified handlers shall be made by qualified

21 wholesale handlers, producers that are qualified

22 handlers, or importers that are qualified han23 dlers, whichever applies, through an election

24 process under regulations prescribed by the

25 Secretary;
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1 (B) RETAILERS.—Nominations for the re2 tailer appointment under paragraph (2)(A)(iv)

3 shall be made by the American Floral Market4 ing Council, or successor entity.

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

6 the selection of alternate members of the PromoFlor

7 Council by the Secretary under procedures specified

8 in the order.

9 (5) TERMS.—The order shall provide that each

10 member of the PromoFlor Council shall serve a term

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

12 seven members shall be appointed for a term of two

13 years, eight members shall be appointed for a term

14 of three years, and eight members shall be appointed

15 for a term of four years, as designated by the Sec16 retary at the time of appointment. No member of

17 the PromoFlor Council may serve more than two

18 consecutive terms of three years, except that any

19 member serving an initial term of four years may

20 serve an additional term of three years.

21 (6) COMPENSATION.—Members of the

22 PromoFlor Council shall serve without compensa23 tion, but shall be reimbursed for their expenses in24 curred in performing their duties as members of the

25 PromoFlor Council.
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1 (7) EXECUTIVE COMMITTEE.—

2 (A) ESTABLISHMENT.—The order shall au3 thorize the PromoFlor Council to appoint from

4 among its members an executive committee of

5 not more than nine members. The membership

6 of the executive committee initially shall be

7 composed of four members appointed pursuant

8 to clause (i) of subparagraph (2)(A), two mem9 bers appointed pursuant to clause (ii) of such

10 subparagraph, two members appointed pursu11 ant to clause (iii) of such subparagraph, and

12 one member appointed pursuant to clause (iv)

13 of such subparagraph. Thereafter, appoint14 ments to the executive committee shall be made

15 so as to ensure that the committee reflects, to

16 the maximum extent practicable, the member17 ship composition of the PromoFlor Council as a

18 whole. The initial appointments to the executive

19 committee shall be for a term of two years.

20 Thereafter, appointments to the executive com21 mittee shall be for a term of one year.

22 (B) DELEGATION OF AUTHORITY.—The

23 PromoFlor Council may delegate to the execu24 tive committee its authority under the order to

25 hire and manage staff and conduct the routine
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1 business of the PromoFlor Council within the

2 policies determined by the PromoFlor Council.

3 (b) RESPONSIBILITIES OF THE PROMOFLOR COUN4 CIL.—

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

6 responsibilities of the PromoFlor Council, which

7 shall include the general responsibilities described in

8 this subsection.

9 (2) ADMINISTRATION.—The PromoFlor Council

10 shall administer the order in accordance with its

11 terms and provisions and may prescribe such rules

12 and regulations to effectuate the terms and provi13 sions of the order as the PromoFlor Council consid14 ers appropriate.

15 (3) STAFF.—The PromoFlor Council may em16 ploy such persons as the PromoFlor Council deter17 mines are necessary and set the compensation and

18 define the duties of such persons.

19 (4) MISCELLANEOUS.—The PromoFlor Council

20 may receive complaints regarding violations of the

21 order and shall investigate and report to the Sec22 retary regarding such complaints. The PromoFlor

23 Council may recommend to the Secretary amend24 ments to the order. The PromoFlor Council shall
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•HR 3515 EH

1 furnish the Secretary with such information as the

2 Secretary may require.

3 (c) BUDGETS.—

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

5 require the PromoFlor Council to prepare and sub6 mit to the Secretary on a fiscal year basis a budget

7 of the anticipated expenses and disbursements of the

8 Board to implement the order. The budget shall in9 clude projected costs of cut flowers and cut greens

10 promotion, consumer information, and related re11 search plans and projects.

12 (2) APPROVAL BY SECRETARY REQUIRED.—The

13 PromoFlor Council may not implement a budget

14 submitted under paragraph (1) before the budget is

15 approved by the Secretary.

16 (3) INVESTMENT AUTHORITY.—The order shall

17 provide the PromoFlor Council with the authority to

18 invest, pending disbursement under a plan or

19 project, funds collected through assessments author20 ized under this title. Income from invested funds

21 shall be used only for a purpose for which the in22 vested funds may be used. The investment of such

23 funds shall be made only in—

24 (A) obligations of the United States or any

25 agency thereof;
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1 (B) general obligations of any State or any

2 political subdivision thereof;

3 (C) any interest-bearing account or certifi4 cate of deposit of a bank that is a member of

5 the Federal Reserve System; or

6 (D) obligations fully guaranteed as to prin7 cipal and interest by the United States.

8 (4) CONTROL OF ADMINISTRATIVE COSTS.—The

9 order shall provide that, as soon as practicable after

10 the date the order becomes effective and after con11 sultation with the Secretary and other appropriate

12 persons, the PromoFlor Council shall implement a

13 system of cost controls based on normally accepted

14 business practices to ensure that the PromoFlor

15 Council’s annual budgets only include amounts for

16 administrative expenses that cover the minimum ad17 ministrative activities and personnel needed to prop18 erly administer and enforce the order and conduct,

19 supervise, and evaluate plans and projects under the

20 order.

21 (d) PLANS AND PROJECTS.—

22 (1) PROMOTION AND CONSUMER INFORMA23 TION.—The order shall provide for the establish24 ment, implementation, administration, and evalua25 tion by the PromoFlor Council of appropriate plans
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1 and projects for advertising, sales promotion, other

2 promotion, and consumer information with respect

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

4 under this paragraph shall be directed toward in5 creasing the general demand for cut flowers or cut

6 greens.

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

8 the establishment, implementation, administration,

9 and evaluation by the PromoFlor Council of plans

10 and projects for market development research, re11 search with respect to the sale, distribution, market12 ing, or use of cut flowers or cut greens, and other

13 research with respect to cut flowers or cut greens

14 marketing, promotion, or consumer information. The

15 PromoFlor Council shall provide for the dissemina16 tion of information resulting from research plans

17 and projects under this paragraph.

18 (3) DISBURSEMENT OF FUNDS.—The order

19 shall also provide authority for the disbursement by

20 the PromoFlor Council of necessary funds to carry

21 out the plans and projects under this subsection.

22 (4) SUBMISSION TO SECRETARY.—The order

23 shall provide that the PromoFlor Council shall sub24 mit to the Secretary for approval any proposed plan

25 or project for cut flowers or cut greens promotion,
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1 consumer information, or related research under this

2 subsection.

3 (5) APPROVAL BY SECRETARY REQUIRED.—The

4 PromoFlor Council may not implement a plan or

5 project for cut flowers or cut greens promotion,

6 consumer information, or related research before the

7 plan or project is approved by the Secretary.

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

9 subsection may not make a reference to a private

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

11 supply, except that these limitations shall not pre12 clude the PromoFlor Council from offering its plans

13 and projects for use by commercial parties, under

14 terms and conditions prescribed by the PromoFlor

15 Council and approved by the Secretary. A plan or

16 project may not make use of unfair or deceptive acts

17 or practices with respect to quality or value.

18 (e) CONTRACTS AND AGREEMENTS.—

19 (1) PROMOTION, CONSUMER INFORMATION, AND

20 RELATED RESEARCH PLANS AND PROJECTS.—To en21 sure the efficient use of funds, the order shall pro22 vide that, subject to the approval of the Secretary,

23 the PromoFlor Council may—

24 (A) enter into contracts or agreements for

25 the implementation of any plan or project under
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•HR 3515 EH

1 subsection (d) for promotion, consumer infor2 mation, or related research with respect to cut

3 flowers or cut greens; and

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

5 with funds received by the PromoFlor Council

6 under the order.

7 (2) REQUIREMENTS OF CONTRACTS AND

8 AGREEMENTS.—The order shall provide that any

9 contract or agreement under paragraph (1) shall

10 provide that—

11 (A) the contracting or agreeing party shall

12 develop and submit to the PromoFlor Council a

13 plan or project together with a budget or budg14 ets that shall show estimated costs to be in15 curred under the plan or project;

16 (B) the plan or project shall become effec17 tive only upon the approval of the Secretary;

18 and

19 (C) the contracting or agreeing party shall

20 keep accurate records of all of its transactions,

21 account for funds received and expended, make

22 periodic reports to the PromoFlor Council of

23 activities conducted, and make such other re24 ports as the PromoFlor Council or the Sec25 retary may require.
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1 (3) OTHER CONTRACTS AND AGREEMENTS.—

2 The order shall provide that the PromoFlor Council

3 also may enter into contracts or agreements for ad4 ministrative services. Any such contract or agree5 ment shall include provisions comparable to those

6 provided in paragraph (2).

7 (f) BOOKS AND RECORDS OF THE PROMOFLOR

8 COUNCIL.—

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

10 PromoFlor Council to maintain such books and

11 records (which shall be available to the Secretary for

12 inspection and audit) as the Secretary may pre13 scribe. The PromoFlor Council shall also prepare

14 and submit to the Secretary such reports as the Sec15 retary may require and account for the receipt and

16 disbursement of all funds entrusted to the

17 PromoFlor Council.

18 (2) AUDITS.—The PromoFlor Council shall

19 cause its books and records to be audited by an

20 independent auditor at the end of each fiscal year.

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

22 Secretary.

23 (3) LISTS OF IMPORTERS.—The order shall re24 quire the staff of the PromoFlor Council to periodi25 cally review lists of importers of cut flowers and cut
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•HR 3515 EH

1 greens to determine whether persons included in the

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

3 PromoFlor Council, the United States Customs

4 Service shall provide to the PromoFlor Council lists

5 of importers of cut flowers and cut greens.

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

7 prohibit the use of any funds received by the PromoFlor

8 Council in any manner for the purpose of influencing legis9 lation or government action or policy, except that funds

10 may be used by the PromoFlor Council for the develop11 ment and recommendation to the Secretary of amend12 ments to the order.

13 (h) CONSULTATIONS WITH INDUSTRY EXPERTS.—

14 The order shall provide that the PromoFlor Council may

15 seek advice from and consult with experts from the pro16 duction, import, wholesale, and retail segments of the cut

17 flowers and cut greens industry to assist in the develop18 ment of promotion, consumer information, and related re19 search plans and projects. For such purpose, the order

20 also shall authorize the appointment of special committees

21 composed of persons other than PromoFlor Council mem22 bers. A committee appointed pursuant to the authority

23 provided in this subsection may not provide advice or rec24 ommendations to an agency or officer of the Federal Gov-
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1 ernment, but shall consult directly with the PromoFlor

2 Council.

3 SEC. 306. ASSESSMENTS.

4 (a) AUTHORITY TO IMPOSE ASSESSMENT.—

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

6 title shall provide that each qualified handler shall

7 pay to the PromoFlor Council, in the manner pre8 scribed by the order, an assessment on each sale of

9 cut flowers or cut greens (other than a sale de10 scribed in subsection (g)) to a retailer or an exempt

11 handler. This assessment requirement shall also

12 apply to each transaction described in paragraph

13 (4).

14 (2) DETERMINATION OF QUALIFIED HANDLER

15 OR EXEMPT HANDLER STATUS.—The order shall

16 contain provisions regarding the making of deter17 minations to determine status as a qualified handler

18 or exempt handler that include the rules and re19 quirements set out in section 303(4) and subsections

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

21 (3) PUBLISHED LISTS OF HANDLERS.—To fa22 cilitate the payment of assessments under this sec23 tion, the PromoFlor Council shall publish lists of

24 qualified handlers required to pay assessments under

25 the order and exempt handlers.
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1 (4) CERTAIN COVERED TRANSACTIONS.—

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

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

4 greens to a retailer from a qualified handler

5 that is a distribution center, as described in

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

7 of cut flowers or cut greens to a consumer by

8 a qualified handler that is an importer or pro9 ducer, as described in section 303(4)(A)(iv),

10 shall be treated as a sale of cut flowers or cut

11 greens to a retailer subject to assessments

12 under this subsection.

13 (B) DETERMINATION OF SALE AMOUNT

14 FOR DISTRIBUTION CENTERS.—In the case of a

15 non-sale transfer of cut flowers or cut greens

16 from a distribution center, the amount of the

17 sale shall be considered to be—

18 (i) the price paid by the distribution

19 center to acquire the cut flowers or cut

20 greens; plus

21 (ii) an amount determined by mul22 tiplying acquisition price determined under

23 clause (i) by a uniform percentage estab24 lished by the order to represent a wholesale

25 handler’s mark-up on a sale to a retailer.
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1 (C) DETERMINATION OF SALE AMOUNT

2 FOR DIRECT SALES BY IMPORTERS.—In the

3 case of a direct sale by an importer to a

4 consumer, the amount of the sale shall be con5 sidered to be—

6 (i) the price paid by the importer to

7 acquire the cut flowers or cut greens; plus

8 (ii) an amount determined by mul9 tiplying the acquisition price determined

10 under clause (i) by a uniform percentage

11 established by the order to represent a

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

13 retailer.

14 (D) DETERMINATION OF SALE AMOUNT

15 FOR DIRECT SALES BY PRODUCERS.—In the

16 case of a direct sale by a producer to a

17 consumer, the amount of the sale shall be con18 sidered to be an amount determined by apply19 ing to the price paid by the consumer a uniform

20 percentage established by the order to represent

21 the cost of producing the article and a whole22 sale handler’s mark-up on a sale to a retailer.

23 (E) ADJUSTMENT OF UNIFORM PERCENT24 AGE.—The PromoFlor Council may recommend

25 to the Secretary changes to the uniform per-
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1 centage established by the order and used to

2 determine the amount of annual sales of han3 dlers under section 303(4) and sale amounts

4 under this paragraph. The Secretary may make

5 a change in the uniform percentage based on

6 such a recommendation only after providing an

7 opportunity for notice and comment regarding

8 the proposed change.

9 (b) ASSESSMENT RATES.—The order shall comply

10 with the following assessment requirements:

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

12 assessment on each sale or transfer of cut flowers or

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

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

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

16 (B) in the case of transactions described in

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

18 calculated as provided in such subsection.

19 (2) CHANGES IN ASSESSMENT RATE.—

20 (A) AUTHORIZED AMOUNT OF CHANGE.—

21 Subject to subparagraph (B), after the first

22 three years the order is in effect, the uniform

23 assessment rate may be increased or decreased

24 annually by not more than .25 percent of—
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1 (i) the gross sales price of product

2 sold; or

3 (ii) in the case of transactions de4 scribed in subsection (a)(4), the amount of

5 the transaction calculated as provided in

6 such subsection.

7 (B) LIMITATION.—The assessment rate

8 may not exceed one percent of gross sales price

9 or transaction amount.

10 (C) METHOD OF CHANGING ASSESSMENT

11 AMOUNT.—Any change in the rate of assess12 ment may be made only if adopted by the

13 PromoFlor Council by a two-thirds majority

14 vote and approved by the Secretary as nec15 essary to achieve the objectives of this title. The

16 Secretary may make the change only after pro17 viding an opportunity for notice and comment

18 regarding the proposed change, and the change

19 in the rate of assessment shall be announced by

20 the PromoFlor Council at least 30 days prior to

21 going into effect. A change in the rate of as22 sessment shall not be subject to a vote in a ref23 erendum under section 308.

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

25 provide that each person required to pay assessments
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1 under this section shall remit, to the PromoFlor Council,

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

3 flowers or cut greens that is subject to an assessment

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

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

6 place) as specified in the order.

7 (d) REFUNDS FROM ESCROW ACCOUNT.—

8 (1) ESTABLISHMENT OF ESCROW ACCOUNT.—

9 The order shall provide that the PromoFlor Council

10 shall—

11 (A) establish an escrow account to be used

12 for assessment refunds as needed; and

13 (B) place into the escrow account an

14 amount equal to 10 percent of the total amount

15 of assessments collected during the period be16 ginning on the date the order goes into effect,

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

18 the date the initial referendum on the order

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

20 (2) RIGHT TO RECEIVE REFUND.—

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

22 that, subject to paragraph (3) and the condi23 tions specified in subparagraph (B), any quali24 fied handler shall have the right to demand and

25 receive from the PromoFlor Council out of the
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1 escrow account a one-time refund of any assess2 ments paid by or on behalf of the qualified han3 dler during the time period specified in para4 graph (1)(B), if—

5 (i) the qualified handler is required to

6 pay such assessments;

7 (ii) the qualified handler does not sup8 port the program established under this

9 title;

10 (iii) the qualified handler demands a

11 refund prior to the conduct of the referen12 dum on the order under section 308(a);

13 and

14 (iv) the order is not approved by

15 qualified handlers in the referendum.

16 (B) CONDITIONS.—The right of any quali17 fied handler to receive refunds under subpara18 graph (A) shall be subject to the following con19 ditions:

20 (i) The demand shall be made in ac21 cordance with regulations, on a form, and

22 within a time period prescribed by the

23 PromoFlor Council.

24 (ii) The refund shall be made only on

25 submission of proof satisfactory to the
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1 PromoFlor Council that the qualified han2 dler paid the assessment for which refund

3 is demanded.

4 (iii) If the amount in the escrow ac5 count required under paragraph (1) is not

6 sufficient to refund the total amount of as7 sessments demanded by all qualified han8 dlers determined eligible for refunds and

9 the order is not approved in the referen10 dum on the order under section 308(a),

11 the PromoFlor Council shall prorate the

12 amount of all such refunds among all eligi13 ble qualified handlers that demand a re14 fund.

15 (3) PROGRAM APPROVED.—The order shall pro16 vide that, if the order is approved in the referendum

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

18 and all funds in the escrow account shall be re19 turned to the PromoFlor Council for use by the

20 PromoFlor Council in accordance with the other pro21 visions of the order.

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

23 provide that assessment funds (net of any refunds paid

24 out under the terms of the order contained in subsection

25 (d)) shall be used for payment of costs incurred in imple-
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1 menting and administering the order, with provision for

2 a reasonable reserve, and to cover those administrative

3 costs incurred by the Secretary in implementing and ad4 ministering this title, except for the salaries of Govern5 ment employees incurred in conducting referenda.

6 (f) POSTPONEMENT OF COLLECTIONS.—

7 (1) AUTHORITY.—Notwithstanding any other

8 provision of this title, the PromoFlor Council may

9 grant a postponement of the payment of assessments

10 under this section for any qualified handler that es11 tablishes that it is financially unable to make the

12 payment. The granting of such a postponement shall

13 be considered under application and documentation

14 requirements and review procedures established

15 under rules recommended by the PromoFlor Council,

16 approved by the Secretary, and issued after provid17 ing public notice and an opportunity to comment on

18 the proposed rules.

19 (2) CRITERIA AND RESPONSIBILITY FOR DE20 TERMINATIONS.—To establish that it is financially

21 unable to pay assessments, an applicant for a post22 ponement shall demonstrate that it is insolvent and

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

24 to pay assessments when they are otherwise due. As

25 part of making such a demonstration, the applicant
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1 shall submit an opinion of an independent certified

2 pubic accountant and any other documentation re3 quired under rules prescribed under paragraph (1).

4 All books, records, and other documentation submit5 ted by a qualified handler under this paragraph shall

6 be subject to the confidentiality requirements of sec7 tion 307(d).

8 (3) PERIOD OF POSTPONEMENT.—The time pe9 riod of any postponement and the terms and condi10 tions of payment of assessments that are postponed

11 under this subsection shall be established by the

12 PromoFlor Council, in accordance with rules pre13 scribed under paragraph (1), so as to appropriately

14 reflect the proven needs of the qualified handler.

15 Postponements may be extended under the require16 ments and procedures established pursuant to para17 graph (1) for the grant of initial postponements.

18 (g) EXCLUSION FROM ASSESSMENTS.—The order

19 shall exclude from assessments under the order any sale

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

21 States.

22 SEC. 307. MISCELLANEOUS REQUIREMENTS OF ORDER.

23 (a) DETERMINATION OF ANNUAL SALES.—

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

25 $750,000 annual sales limitation to specific persons
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1 in order to determine status as a qualified handler

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

3 specific facilities in order to determine status as an

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

5 order issued under this title shall provide that a de6 termination of a person’s or facility’s annual sales

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

8 cut greens by the person or facility during the most

9 recently-completed calendar year.

10 (2) SPECIAL RULE FOR NEW BUSINESSES.—

11 With respect to new businesses and other operations

12 for which complete data on sales during all or part

13 of the most recently-completed calendar year are not

14 available to the PromoFlor Council, the determina15 tion under paragraph (1) may be made using an al16 ternative time period or other alternative procedures

17 specified in the order.

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

19 the order may require each person that sells cut

20 flowers or cut greens to retailers to submit reports

21 to the PromoFlor Council on annual sales by the

22 person. A report under this subsection shall be sub23 ject to the confidentiality requirements provided in

24 subsection (d).

25 (b) RULE OF ATTRIBUTION.—
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1 (1) IN GENERAL.—For purposes of determining

2 the annual sales volume of a person or a separate

3 facility of a person, sales attributable to a person

4 shall include—

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

6 an individual, sales attributable to such per7 son’s spouse, children, grandchildren, parents,

8 and grandparents;

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

10 a partnership or member of a partnership, sales

11 attributable to the partnership and other part12 ners of the partnership;

13 (C) for both individuals and partnerships,

14 sales attributable to any corporation or other

15 entity in which the person owns more than 50

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

17 corporation) that the person controls; and

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

19 a corporation, sales attributable to any cor20 porate subsidiary or other corporation or entity

21 in which the corporation owns more than 50

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

23 corporation) that the corporation controls.

24 (2) TREATMENT OF CERTAIN STOCK AND OWN25 ERSHIP INTERESTS.—For purposes of this sub-
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1 section, stock or an ownership interest in an entity

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

3 parents, grandparents, or partners of an individual,

4 or by a partnership in which a person is a partner,

5 or by a corporation more than 50 percent of the

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

7 as owned by the individual or person.

8 (c) BOOKS, RECORDS, AND REPORTS.—So that infor9 mation is available to the Secretary and the PromoFlor

10 Council for the administration and enforcement of this

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

12 the order shall provide that each qualified handler shall—

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

14 such books and records as may be required by the

15 order; and

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

17 having the content prescribed by the order, to the

18 end that information is made available to the Sec19 retary and the PromoFlor Council as is appropriate

20 for the administration or enforcement of this title,

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

22 (d) CONFIDENTIALITY REQUIRED.—

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

24 PromoFlor Council from books, records, or reports re25 quired to be maintained under this section shall be kept
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1 confidential by all officers and employees of the Depart2 ment of Agriculture and by the staff and agents of the

3 PromoFlor Council. Such information may be disclosed to

4 the public only in a suit or administrative hearing involv5 ing the order that is brought at the request of the Sec6 retary (or to which the Secretary or any officer of the

7 United States is a party), and then, only to the extent

8 the Secretary considers relevant.

9 (2) RULE OF CONSTRUCTION.—Nothing in

10 paragraph (1) prohibits—

11 (A) the issuance of general statements,

12 based on the reports, of the number of persons

13 subject to the order or statistical data collected

14 therefrom, which statements do not identify the

15 information furnished by any person; or

16 (B) the publication, by direction of the

17 Secretary, of the name of any person violating

18 the order, together with a statement of the par19 ticular provisions of the order violated by the

20 person.

21 (e) OTHER TERMS OF ORDER.—The order shall con22 tain such other terms and provisions, not inconsistent with

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

24 provision for the assessment of interest and a charge for

25 each late payment of assessments under this section.
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1 SEC. 308. REFERENDA.

2 (a) REQUIREMENT FOR INITIAL REFERENDUM.—

3 (1) CONDUCT.—Not later than 36 months after

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

5 the Secretary shall conduct a referendum among

6 qualified handlers required to pay assessments under

7 the order to ascertain whether or not the order then

8 in effect shall be continued.

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

10 shall be continued only if the Secretary determines

11 that the order has been approved by a simple major12 ity of all votes cast in the referendum. If the order

13 is not approved, the Secretary shall terminate the

14 order as provided in subsection (d).

15 (b) VOTES PERMITTED.—

16 (1) IN GENERAL.—Each qualified handler eligi17 ble to vote in a referendum under this section may

18 cast one vote for each separate facility of the person

19 that is an eligible separate facility, as determined

20 under paragraph (2).

21 (2) ELIGIBLE SEPARATE FACILITY.—

22 (A) SEPARATE FACILITY.—A handling or

23 marketing facility of a qualified handler shall be

24 considered a separate facility if it is physically

25 located away from other facilities of the quali26 fied handler or its business function is substan-
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1 tially different than the functions of other fa2 cilities owned or operated by the qualified

3 handler.

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

5 qualified handler shall be considered to be an

6 eligible separate facility if the annual sales of

7 cut flowers and cut greens to retailers and ex8 empt handlers from the facility are $750,000 or

9 more.

10 (C) ANNUAL SALES DETERMINED.—Sub11 paragraphs (A) and (C) of section 303(4) shall

12 apply for purposes of determining the amount

13 of annual sales of cut flowers and cut greens

14 under subparagraph (B).

15 (c) SUSPENSION OR TERMINATION REFERENDA.—

16 Effective beginning three years after the date on which

17 an order issued under this title is approved in a referen18 dum conducted under subsection (a), the Secretary—

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

20 at any time a referendum of qualified handlers re21 quired to pay assessments under the order to ascer22 tain whether or not qualified handlers favor suspen23 sion or termination of the order; and

24 (2) whenever requested by the PromoFlor

25 Council or by a representative group comprising 30
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1 percent or more of all qualified handlers required to

2 pay assessments under the order, shall conduct a

3 referendum of all qualified handlers required to pay

4 such assessments to ascertain whether or not quali5 fied handlers favor suspension or termination of the

6 order.

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

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

9 Secretary determines that the order has not been approved

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

11 or as a result of a referendum conducted under subsection

12 (c), the Secretary determines that suspension or termi13 nation of the order is favored by a simple majority of all

14 votes cast in the referendum, the Secretary shall—

15 (1) within six months after the referendum,

16 suspend or terminate, as appropriate, collection of

17 assessments under the order; and

18 (2) suspend or terminate, as appropriate, activi19 ties under the order in an orderly manner as soon

20 as practicable.

21 (e) MANNER OF CONDUCTING REFERENDA.—

22 Referenda under this section shall be conducted in such

23 manner as is determined appropriate by the Secretary.

24 SEC. 309. PETITION AND REVIEW.

25 (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:

Clerk.

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