Union Calendar No. 219

103D CONGRESS

1ST SESSION H. R. 3515

[Report No. 103–394]

A BILL

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 ProNOVEMBER 20, 1993

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union and
IB

Union Calendar No. 219

103D CONGRESS

1ST SESSION H. R. 3515

[Report No. 103–394]

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.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 16, 1993

Mr. DE LA GARZA (for himself, Mr. STENHOLM, Mr. ROBERTS, Mr. LEWIS

of Florida, Mr. BOEHNER, Mr. HOLDEN, and Mr. ENGLISH of Oklahoma)

introduced the following bill; which was referred to the Committee on Agriculture

NOVEMBER 20, 1993

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on November 16, 1993]

A BILL

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

and for other purposes.

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

3 SECTION 1. SHORT TITLE.

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

5 Research and Promotion Improvement Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7 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.
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Sec. 311. Investigations and power to subpoena.

Sec. 312. Confidentiality.

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

Sec. 314. Construction.

Sec. 315. Regulations.

Sec. 316. Authorization of appropriations.

Sec. 317. Separability.

TITLE IV—LIME RESEARCH, PROMOTION, AND CONSUMER

INFORMATION

Sec. 401. Short title.

Sec. 402. Findings and purpose.

Sec. 403. Definition of lime.

Sec. 404. Required terms in orders.

Sec. 405. Initial referendum.

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 In9 formation Act (7 U.S.C. 2707(e)) is amended—

10 (1) by designating the first and second sentences

11 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 by

17 the order, except that the rate of assessment may not exceed
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1 30 cents per case of commercial eggs or the equivalent there2 of.

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

4 the rate of assessment (subject to the limitation in subpara5 graph (A)) only if the increase is recommended by the Egg

6 Board and approved by egg producers in a referendum con7 ducted under section 9(b).

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

9 the rate of assessment only if the decrease is recommended

10 by the Egg Board. A decrease in the rate of assessment shall

11 take effect only after the Secretary provides public notice

12 and an opportunity for comment in accordance with section

13 553 of title 5, United States Code. Sections 556 and 557

14 of such title shall not apply with respect to decreasing the

15 rate of assessment.’’; and

16 (4) by conforming the margins of paragraphs (1)

17 and (3) (as so designated) to the margin of paragraph

18 (2).

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

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

21 2708) is amended—

22 (1) by designating the first two sentences as sub23 section (a);

24 (2) by designating the last sentence as subsection

25 (c);
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1 (3) by inserting after subsection (a) (as so des2 ignated) the following new subsection:

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

4 scientific studies, marketing analysis, or other similar com5 petent evidence, that an increase in assessment rate is need6 ed to ensure that assessments under the order are set at an

7 appropriate level to effectuate the declared policy of this

8 Act, the Egg Board may request that the Secretary conduct

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

10 ‘‘(2) When requested by the Egg Board under para11 graph (1) or (3), the Secretary shall conduct a referendum

12 among egg producers not exempt hereunder who, during a

13 representative period determined by the Secretary, have

14 been engaged in the production of commercial eggs, for the

15 purpose of ascertaining whether such producers approve the

16 increase in the assessment rate proposed by the Egg Board.

17 The increase in the assessment rate shall take effect if ap18 proved or favored by not less than two-thirds of the produc19 ers voting in such referendum, or by a majority of the pro20 ducers voting in such referendum if such majority produced

21 not less than two-thirds of all the commercial eggs produced

22 by those voting during a representative period defined by

23 the Secretary.

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

25 the enactment of this subsection, the Egg Board shall under-
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1 take to determine under paragraph (1), as soon as prac2 ticable after such date of enactment, whether to request that

3 the Secretary conduct a referendum under paragraph (2).

4 If the Egg Board makes such a request on competent evi5 dence, as provided in paragraph (1), the Secretary shall

6 conduct such referendum as soon as practicable, but not

7 later than 120 days after receipt of the request from the

8 Egg Board.

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

10 whenever an increase in the assessment rate and the author11 ity for additional increases is approved by producers in a

12 referendum under this subsection, the Secretary shall amend

13 the order as appropriate to reflect such vote of producers.

14 The amendment to the order shall become effective on the

15 date it is issued.’’; and

16 (4) by conforming the margins of subsections (a)

17 and (c) (as so designated) to the margin of subsection

18 (b).

19 SEC. 103. EXEMPTED EGG PRODUCERS.

20 (a) INCREASE IN EXEMPTION AMOUNT.—Section

21 12(a)(1) of the Egg Research and Consumer Information

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

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

24 (b) ISSUANCE OF AMENDMENT TO ORDER.—To imple25 ment the amendment made by subsection (a) to the Egg
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1 Research and Consumer Information Act, the Secretary of

2 Agriculture shall issue an amendment to the egg promotion

3 and research order issued under such Act. The amendment

4 to the order shall be issued after public notice and oppor5 tunity for comment in accordance with section 553 of title

6 5, United States Code. Sections 556 and 557 of such title

7 shall not apply with respect to the amendment to the order.

8 The Secretary shall issue the proposed amendment to the

9 order not later than 30 days after the date of the enactment

10 of this title.

11 (c) EFFECTIVE DATE.—The amendment to the egg pro12 motion and research order required by subsection (b) shall

13 become effective not later than 120 days after the date of

14 the enactment of this Act. The amendment shall not be sub15 ject to a referendum under the Egg Research and Consumer

16 Information Act.

17 TITLE II—WATERMELON

18 RESEARCH AND PROMOTION

19 SEC. 201. SHORT TITLE.

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

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

22 SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM

23 PROCEDURES.

24 Section 1653 of the Watermelon Research and Pro25 motion Act (7 U.S.C. 4912) is amended—
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1 (1) by inserting ‘‘(a)’’ after ‘‘SEC. 1653.’’;

2 (2) by striking the third sentence; and

3 (3) inserting at the end the following new sub4 section:

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

6 effect unless the Secretary determines that the issuance of

7 the plan is approved or favored by a majority of the produc8 ers and handlers (and importers if subject to the plan) vot9 ing in the referendum.’’.

10 SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE

11 UNITED STATES.

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

13 Research and Promotion Act (7 U.S.C. 4902(3)) is amend14 ed—

15 (1) in paragraph (3), by striking ‘‘the forty-eight

16 contiguous States of’’; and

17 (2) by adding at the end the following new para18 graph:

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

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

21 (b) ISSUANCE OF PLANS.—The last sentence of section

22 1644 of such Act (7 U.S.C. 4903) is amended by striking

23 ‘‘the forty-eight contiguous States of’’.
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1 SEC. 204. CLARIFICATION OF DIFFERENCES BETWEEN PRO2 DUCERS AND HANDLERS.

3 Section 1647(c) of the Watermelon Research and Pro4 motion Act (7 U.S.C. 4906(c)) is amended by adding at

5 the end the following:

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

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

8 percent or more of the producer’s own production, the pro9 ducer shall be eligible to serve on the Board only as a rep10 resentative of handlers and not as a representative of pro11 ducers. In addition, if the combined total volume of water12 melons handled by a producer from the producer’s own pro13 duction and purchases from other producers’ production is

14 more than 50 percent of the producer’s own production, the

15 producer shall be eligible to serve on the Board only as a

16 representative of handlers and not as a representative of

17 producers.’’.

18 SEC. 205. CLARIFICATION OF COLLECTION OF ASSESS19 MENTS BY THE BOARD.

20 Section 1647 of the Watermelon Research and Pro21 motion Act (7 U.S.C. 4906) is amended—

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

23 the assessments by the Board.’’ and inserting ‘‘pay24 ment of the assessments to the Board.’’; and

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

26 by striking ‘‘collected’’ and inserting ‘‘received’’.
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1 SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT

2 TO FORMAL RULEMAKING.

3 Section 1647(f) of the Watermelon Research and Pro4 motion Act (7 U.S.C. 4906(f)), as amended by section

5 205(1), is further amended by adding at the end the follow6 ing new sentences: ‘‘In fixing or changing the rate of assess7 ment pursuant to the plan, the Secretary shall comply with

8 the notice and comment procedures established under sec9 tion 553 of title 5, United States Code. Sections 556 and

10 557 of such title shall not apply with respect to fixing or

11 changing the rate of assessment.’’.

12 SEC. 207. ELIMINATION OF WATERMELON ASSESSMENT RE13 FUND.

14 Section 1647(h) of the Watermelon Research and Pro15 motion Act (7 U.S.C. 4906(h)) is amended—

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

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

18 (2), the plan’’; and

19 (2) by adding at the end the following new para20 graphs:

21 ‘‘(2) If approved in the referendum required by section

22 1655(b) relating to the elimination of the assessment refund

23 under paragraph (1), the Secretary shall amend the plan

24 that is in effect on the day before the date of the enactment

25 of the Watermelon Research and Promotion Improvement

26 Act to eliminate such refund provision.
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1 ‘‘(3) Notwithstanding paragraph (2), if importers are

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

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

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

5 rate of assessment paid by domestic producers. The Sec6 retary may adjust the weight exemption contained in this

7 paragraph to reflect significant changes in the average yield

8 per acre of watermelons in the United States for the 5-year

9 period immediately preceding the year in which the adjust10 ment is made. An adjustment in the weight exemption

11 under this paragraph may be made only upon the rec12 ommendation of the Board and after the Secretary provides

13 an opportunity for notice and comment on the proposed ad14 justment.’’.

15 SEC. 208. EQUITABLE TREATMENT OF WATERMELON PLANS.

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

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

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

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

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

21 into the United States.’’;

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

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

24 (3) by inserting after paragraph (5) the follow25 ing new paragraphs:
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1 ‘‘(6) The term ‘importer’ means any person who

2 imports watermelons into the United States.

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

4 the Secretary under this subtitle.’’.

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

6 (7 U.S.C. 4903), as amended by section 203(b), is further

7 amended—

8 (1) in the first sentence, by striking ‘‘and han9 dlers’’ and inserting ‘‘, handlers, and importers’’;

10 (2) by striking the second sentence; and

11 (3) in the last sentence, by inserting ‘‘or im12 ported into the United States’’ before the period.

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

14 Act (7 U.S.C. 4904(a)) is amended—

15 (1) in the first sentence, by striking ‘‘and han16 dlers’’ and inserting ‘‘, handlers, and importers’’; and

17 (2) in the last sentence, by striking ‘‘or handlers’’

18 and inserting ‘‘, handlers, or importers’’.

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

20 Act (7 U.S.C. 4906(c)), as amended by section 204, is fur21 ther amended—

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

23 (2) in the second sentence, by striking ‘‘producer

24 and handler members’’ and inserting ‘‘other mem25 bers’’; and
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1 (3) by adding at the end the following new para2 graph:

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 on

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

12 select nominees for appointment to the Board, the Secretary

13 may appoint any importers as the representatives of im14 porters. Every 5 years, the Secretary shall evaluate the av15 erage annual percentage of assessments paid by importers

16 during the most recent 3-year period and adjust, to the ex17 tent possible, the number of importer representatives on the

18 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 para4 graph:

5 ‘‘(5) If importers are subject to the plan, an as6 sessment shall also be made on watermelons imported

7 into the United States by such importers. The rate of

8 assessment for importers (if subject to the plan) shall

9 be equal to the combined rate for producers and han10 dlers.’’.

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

12 4906(h)), as amended by section 207, is further amended—

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

14 places it appears the following: ‘‘(or importer if sub15 ject to the plan)’’; and

16 (2) by striking ‘‘or handler’’ the last place it ap17 pears and inserting ‘‘, handler, or importer’’.

18 (g) ASSESSMENT PROCEDURES.—Section 1649 of such

19 Act (7 U.S.C. 4908) is amended—

20 (1) in subsection (a)—

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

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

23 paragraph:

24 ‘‘(2) If importers are subject to the plan, each importer

25 required to pay assessments under the plan shall be respon-
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1 sible for payment of the assessments to the Board, as the

2 Board may direct. The assessment on imported watermelons

3 shall be paid by the importer to the Board at the time of

4 the entry of the watermelons into the United States. Each

5 such importer shall maintain a separate record specifying

6 the total quantity of watermelons imported into the United

7 States that are included under the terms of the plan, as

8 well as those that are exempt under such plan, and contain9 ing such other information as may be prescribed by the

10 Board. No more than one assessment shall be made on any

11 imported watermelons.’’;

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

14 (3) in subsection (c)(1), by inserting ‘‘or import15 ers’’ after ‘‘handlers’’.

16 (h) INVESTIGATIONS.—Section 1652(a) of such Act (7

17 U.S.C. 4911(a)) is amended—

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

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

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

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

22 and

23 (3) in the last sentence, by striking ‘‘the handler

24 or other person’’ and inserting ‘‘the person’’.
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1 (i) REFERENDUM.—Section 1653 of such Act (7 U.S.C.

2 4912), as amended by section 202, is further amended—

3 (1) in the first sentence—

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

5 it appears and inserting ‘‘, handlers, and im6 porters’’; and

7 (B) by striking ‘‘or handling’’ and inserting

8 ‘‘, handling, or importing’’;

9 (2) by striking the second sentence; and

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

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

12 ‘‘, handler, or importer’’; and

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

14 ‘‘, handled, or imported’’.

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

16 Act (7 U.S.C. 4913(b)) is amended—

17 (1) in the first sentence—

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

19 and inserting ‘‘at least 10 percent of the com20 bined total’’; and

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

22 it appears and inserting ‘‘, handlers, and im23 porters’’;

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

2 handle, or import’’;

3 (B) by striking ‘‘50 per centum’’ and insert4 ing ‘‘50 percent of the combined total’’; and

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

7 and imported by the importers’’; and

8 (3) by striking the last sentence.

9 (k) CONFORMING AND TECHNICAL AMENDMENTS.—

10 Such Act is further amended—

11 (1) in section 1642(a)(5) (7 U.S.C. 4901(a)(5)),

12 by striking ‘‘and handling’’ and inserting ‘‘handling,

13 and importing’’;

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

15 U.S.C. 4901(b))—

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

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

18 States’’; and

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

20 States’’;

21 (3) in section 1643 (7 U.S.C. 4902), as amended

22 by subsection (a) and section 203—

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

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

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

3 term’’;

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

5 striking the semicolon at the end and inserting

6 a period;

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

8 subsection (a)(2)—

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

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

12 a period; and

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

14 subsection (a)(2)—

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

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

18 ‘‘1647’’; and

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

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

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

22 following:’’;

23 (B) in paragraph (1)—

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

2 end and inserting a period;

3 (C) in paragraph (2)—

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

5 ‘‘(2) No’’; and

6 (ii) by striking the semicolon at the

7 end and inserting a period;

8 (D) in paragraph (3)—

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

10 ‘‘(3) No’’; and

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

12 a period.

13 SEC. 209. SEPARATE CONSIDERATION OF WATERMELON

14 PLAN AMENDMENTS.

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

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

18 ‘‘(a) Except as provided in section 1647(f), the provi19 sions’’; and

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

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

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

24 result of the amendments made by the Watermelon Research

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

2 pursuant to section 1653 before the Secretary alters the plan

3 as in effect on the day before the date of the enactment of

4 such Act.

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

6 those amendments required under—

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

8 Promotion Improvement Act relating to the elimi9 nation of the assessment refund; and

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

12 ‘‘(d) When conducting the referendum relating to sub13 jecting importers to the terms and conditions of a plan, the

14 Secretary shall include as eligible voters in the referendum

15 producers, handlers, and importers who would be subject

16 to the plan if the amendments are approved.’’.

17 TITLE III—FRESH CUT FLOWERS

18 AND FRESH CUT GREENS

19 PROMOTION AND INFORMA20 TION

21 SEC. 301. SHORT TITLE.

22 This title may be cited as the ‘‘Fresh Cut Flowers and

23 Fresh Cut Greens Promotion and Information Act’’.

24 SEC. 302. FINDINGS AND DECLARATION OF POLICY.

25 (a) FINDINGS.—Congress finds the following:
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1 (1) Fresh cut flowers and fresh cut greens are an

2 integral part of life in the United States, are enjoyed

3 by millions of persons every year for a multitude of

4 special purposes (especially important personal

5 events), and contribute a natural and beautiful ele6 ment to the human environment.

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

8 many individual producers throughout the United

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

10 and marketed by thousands of small-sized and me11 dium-sized businesses, and such production, handling,

12 and marketing constitute a key segment of the United

13 States horticultural industry and thus a significant

14 part of the overall agricultural economy of the United

15 States.

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

17 of cut flowers and cut greens in that they purchase

18 most of the cut flowers and cut greens marketed by

19 producers, prepare the cut flowers and cut greens for

20 retail consumption, serve as intermediary between

21 source of product and retailer, otherwise facilitate the

22 entry of cut flowers and cut greens into the current

23 of domestic commerce, and add efficiencies to the

24 market process that ensure the availability of a much

25 greater variety of product to retailers and consumers.
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1 (4) It is widely recognized that it is in the pub2 lic interest and important to the agricultural econ3 omy of the United States to provide an adequate,

4 steady supply of cut flowers and cut greens at reason5 able prices to consumers in the United States.

6 (5) Cut flowers and cut greens move in interstate

7 and foreign commerce, and cut flowers and cut greens

8 that do not move in such channels of commerce, but

9 only in intrastate commerce, directly affect interstate

10 commerce in cut flowers and cut greens.

11 (6) The maintenance and expansion of existing

12 markets and the development of new or improved

13 markets or uses for cut flowers and cut greens are

14 needed to preserve and strengthen the economic viabil15 ity of the domestic cut flowers and cut greens indus16 try for the benefit of producers, handlers, retailers,

17 and the entire floral industry.

18 (7) Generic programs of promotion and

19 consumer information can be effective in maintaining

20 and developing markets for cut flowers and cut

21 greens, and have the advantage of equally enhancing

22 the market position for all cut flowers and cut greens

23 marketed.

24 (8) Because cut flowers and cut greens producers

25 are primarily agriculture-oriented rather than pro-
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1 motion-oriented, and because the floral marketing in2 dustry within the United States is comprised mainly

3 of small-sized and medium-sized businesses, the devel4 opment and implementation of an adequate and co5 ordinated national program of generic promotion and

6 consumer information necessary for the maintenance

7 of existing markets and the development of new mar8 kets for cut flowers and cut greens have been pre9 vented.

10 (9) There exist established State and commodity11 specific producer-funded programs of promotion and

12 research that are valuable efforts to expand markets

13 for domestic producers of cut flowers and cut greens

14 and that will be able to take advantage of the pro15 motion and consumer information program author16 ized by this title to enhance their market development

17 efforts for domestic producers.

18 (10) An effective and coordinated method for en19 suring cooperative and collective action in providing

20 for and financing a nationwide program of generic

21 promotion and consumer information is needed to en22 sure that the cut flowers and cut greens industry will

23 be able to provide, obtain, and implement programs

24 of promotion and consumer information necessary to
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1 maintain, expand, and develop markets for these

2 articles.

3 (11) The most efficient method of financing a

4 nationwide program of generic promotion and

5 consumer information regarding cut flowers and cut

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

7 point they are sold by handlers into the retail market.

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

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

10 is the purpose of this title, to authorize the establishment

11 pursuant to this title of an orderly procedure for the devel12 opment and financing (through an adequate assessment on

13 cut flowers and cut greens sold by handlers to retailers and

14 related entities in the United States) of an effective and

15 coordinated program of generic promotion, consumer infor16 mation, and related research designed to strengthen the po17 sition of the cut flowers and cut greens industry in the mar18 ketplace and to maintain, develop, and expand markets for

19 cut flowers and cut greens.

20 SEC. 303. DEFINITIONS.

21 For purposes of this title:

22 (1) CONSUMER INFORMATION.—The term

23 ‘‘consumer information’’ means any action or pro24 gram to provide information to consumers and other

25 persons regarding—
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1 (A) appropriate uses of cut flowers or cut

2 greens under varied circumstances; and

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

4 cut greens.

5 (2) CUT FLOWERS AND CUT GREENS.—

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

7 includes all flowers cut from growing plants and

8 used as fresh-cut flowers, produced either under

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

10 greens’’ includes all cultivated or noncultivated

11 decorative foliage cut from growing plants and

12 used as fresh-cut decorative foliage, produced ei13 ther under cover or in field operations. The term

14 ‘‘cut greens’’ does not include Christmas trees,

15 and neither term includes foliage plants, floral

16 supplies, or flowering plants.

17 (B) SUBSTANTIAL PORTION.—In any case

18 in which a handler packages cut flowers or cut

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

20 gift basket or similar presentation, for sale to re21 tailers, the PromoFlor Council may determine,

22 under procedures set out in the order, that the

23 cut flowers or cut greens in the article do not

24 constitute a substantial portion of the value of

25 the article. Based on such a determination, the
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1 article containing the cut flowers or cut greens

2 shall not be treated as an article of cut flowers

3 or cut greens for purposes of—

4 (i) determining the annual sales of cut

5 flowers and cut greens of a handler under

6 paragraph (4)(C); or

7 (ii) imposing an assessment under sec8 tion 306.

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

10 price’’ means the total amount of the transaction in

11 a sale of cut flowers or cut greens by a handler.

12 (4) HANDLER DEFINITIONS.—

13 (A) QUALIFIED HANDLER.—

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

15 handler’’ means a person (including a co16 operative) operating in the cut flowers or

17 cut greens industry that sells domestic or

18 imported cut flowers or cut greens to retail19 ers and exempt handlers and whose annual

20 sales of cut flowers and cut greens to retail21 ers and exempt handlers are $750,000 or

22 more.

23 (ii) INCLUSIONS.—The term ‘‘qualified

24 handler’’ includes the following:

25 (I) Bouquet manufacturers.
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1 (II) Auction houses that clear

2 sales of cut flowers and cut greens to

3 retailers and exempt handlers through

4 a central clearinghouse.

5 (III) Any distribution center that

6 is owned or controlled by a retailer if

7 the predominant retail business activ8 ity of the retailer is floral sales. For

9 purposes of determining sales of cut

10 flowers and cut greens to retailers from

11 any such distribution center, each non12 sale transfer to a retailer shall be treat13 ed as a sale in an amount calculated

14 as provided in subparagraph (C)(ii).

15 (iii) EXCLUSIONS.—The term ‘‘quali16 fied handler’’ does not include a person who

17 merely physically transports or delivers cut

18 flowers or cut greens.

19 (iv) RULES OF CONSTRUCTION FOR DI20 RECT TO CONSUMER SALES.—The term

21 ‘‘qualified handler’’ includes an importer

22 that sells directly to consumers cut flowers

23 or cut greens that it has imported into the

24 United States and whose sales of such cut

25 flowers or cut greens (as calculated under
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1 subparagraph (C)), along with sales of cut

2 flowers and cut greens to retailers or exempt

3 handlers, annually are $750,000 or more.

4 The term ‘‘qualified handler’’ also includes

5 a producer that sells directly to consumers

6 cut flowers or cut greens that it has pro7 duced and whose sales of such cut flowers or

8 cut greens (as calculated under subpara9 graph (C)), along with sales of cut flowers

10 and cut greens to retailers or exempt han11 dlers, annually are $750,000 or more. Each

12 direct sale to consumers by an importer or

13 producer described in this clause shall be

14 treated as a sale to a retailer or exempt

15 handler in an amount calculated as pro16 vided in clause (iii) or (iv) of subparagraph

17 (C).

18 (B) EXEMPT HANDLER.—The term ‘‘exempt

19 handler’’ means a person that would otherwise be

20 considered to be a qualified handler, except that

21 its annual sales of cut flowers and cut greens to

22 retailers and other exempt handlers are less than

23 $750,000.

24 (C) ANNUAL SALES DETERMINED.—
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1 (i) IN GENERAL.—For purposes of de2 termining the amount of annual sales of cut

3 flowers and cut greens under subparagraphs

4 (A) and (B), the amount of a sale shall be

5 determined on the basis of the gross sales

6 price of product sold.

7 (ii) SPECIAL RULE FOR DISTRIBUTION

8 CENTERS.—In the case of a non-sale trans9 fer of cut flowers or cut greens from a dis10 tribution center, as described in subpara11 graph (A)(ii)(III), the amount of the sale

12 shall be—

13 (I) the price paid by the distribu14 tion center to acquire the cut flowers or

15 cut greens; plus

16 (II) an amount determined by

17 multiplying the acquisition price deter18 mined under subclause (I) by a uni19 form percentage established by the

20 order to represent a wholesale handler’s

21 mark-up on a sale to a retailer.

22 (iii) SPECIAL RULE FOR DIRECT SALES

23 BY IMPORTERS.—In the case of a direct sale

24 by an importer to a consumer, as described
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1 in subparagraph (A)(iv), the amount of the

2 sale shall be—

3 (I) the price paid by the importer

4 to acquire the cut flowers or cut greens;

5 plus

6 (II) an amount determined by

7 multiplying the acquisition price deter8 mined under subclause (I) by a uni9 form percentage established by the

10 order to represent a wholesale handler’s

11 mark-up on a sale to a retailer.

12 (iv) SPECIAL RULE FOR DIRECT SALES

13 BY PRODUCERS.—In the case of a direct sale

14 by a producer to a consumer, as described

15 in subparagraph (A)(iv), the amount of the

16 sale shall be an amount determined by ap17 plying to the price paid by the consumer a

18 uniform percentage established by the order

19 to represent the cost of producing the article

20 and a wholesale handler’s mark-up on a

21 sale to a retailer.

22 (D) REFERENCE TO OTHER DEFINITIONS.—

23 For purposes of this paragraph, the term ‘‘pro24 ducer’’ has the meaning given the term ‘‘produc25 ers that are qualified handlers’’ in section
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1 305(a)(2)(D)(ii), and the term ‘‘importer’’ has

2 the meaning given the term ‘‘importers that are

3 qualified handlers’’ in section 305(a)(2)(D)(iii).

4 (5) PERSON.—The term ‘‘person’’ means any in5 dividual, group of individuals, firm, partnership, cor6 poration, joint stock company, association, society,

7 cooperative, or other legal entity.

8 (6) PROMOFLOR COUNCIL.—The term

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

10 and Fresh Cut Greens Promotion Council established

11 under section 305(a).

12 (7) PROMOTION.—The term ‘‘promotion’’ means

13 any action determined by the Secretary to advance

14 the image, desirability, or marketability of cut flowers

15 or cut greens, including paid advertising.

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

17 market research and studies limited to the support of

18 advertising, market development, and other promotion

19 efforts and consumer information efforts relating to

20 cut flowers or cut greens, including educational ac21 tivities.

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

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

24 market retail outlet, or other end-use seller as de25 scribed in an order issued under this title) that sells
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1 cut flowers or cut greens to consumers. The term shall

2 include any distribution center—

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

4 owned or controlled cooperatively by a group of

5 such persons, if the predominant retail business

6 activity of such person is not floral sales; or

7 (B) independently owned but operated pri8 marily to provide food products to retail stores.

9 An independently owned distribution center covered

10 by subparagraph (B) that is also an importer or pro11 ducer of cut flowers or cut greens shall be subject to

12 the rules of construction set out in paragraph

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

14 deemed to be the seller of cut flowers or cut greens di15 rectly to the consumer.

16 (10) SECRETARY.—The term ‘‘Secretary’’ means

17 the Secretary of Agriculture.

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

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

20 of the United States, the District of Columbia, and all

21 the territories and possessions of the United States.

22 SEC. 304. ISSUANCE OF ORDERS.

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

24 section 302(b), the Secretary shall issue an order under this

25 title applicable to qualified handlers of cut flowers and cut
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1 greens. Any such order shall be national in scope. Not more

2 than one order shall be in effect under this title at any one

3 time.

4 (b) PROCEDURES.—

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

6 may propose the issuance of an order under this title.

7 In addition, an industry group that represents a sub8 stantial number of the industry members who are to

9 be assessed under the order, or any other person that

10 will be affected by this title, may request the issuance

11 of, and submit a proposal for, such an order.

12 (2) PUBLICATION OF PROPOSAL.—The Secretary

13 shall publish the proposed order and give due notice

14 and opportunity for public comment on the proposed

15 order not later than 60 days after the earlier of—

16 (A) the date on which the Secretary receives

17 the proposal for the order from an industry

18 group or interested person, as provided in para19 graph (1); or

20 (B) the date on which the Secretary deter21 mines to propose the order.

22 (3) ISSUANCE OF ORDER.—After notice and op23 portunity for public comment are provided, the Sec24 retary shall issue the order, taking into consideration

25 the comments received and including in the order pro-
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1 visions necessary to ensure that the order is in con2 formity with the requirements of this title. The order

3 shall be issued and become effective not later than 180

4 days after publication of the proposed order.

5 (c) AMENDMENTS.—From time to time, the Secretary

6 may amend an order issued under this title. The provisions

7 of this title applicable to the issuance of an order shall be

8 applicable to amendments to the order.

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

10 PROMOTION COUNCIL (PROMOFLOR COUN11 CIL).

12 (a) ESTABLISHMENT OF PROMOFLOR COUNCIL.—

13 (1) ESTABLISHMENT.—The order issued under

14 this title shall provide for the establishment of a Fresh

15 Cut Flowers and Fresh Cut Greens Promotion Coun16 cil to administer the order. The Secretary shall ap17 point the members of the PromoFlor Council in the

18 manner provided in paragraphs (2) and (3).

19 (2) APPOINTMENT OF MEMBERS.—

20 (A) DISTRIBUTION OF APPOINTMENTS.—The

21 order shall provide that the membership of the

22 PromoFlor Council shall consist of 23 members

23 as follows:

24 (i) Fourteen members selected from

25 among qualified wholesale handlers of do-
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1 mestic or imported cut flowers and cut

2 greens.

3 (ii) Three members selected from

4 among producers that are qualified handlers

5 of cut flowers and cut greens.

6 (iii) Three members selected from

7 among importers that are qualified handlers

8 of cut flowers and cut greens.

9 (iv) One member selected from among

10 retailers of cut flowers and cut greens.

11 (v) Two members selected from among

12 producers of cut flowers and cut greens that

13 are not qualified handlers or exempt han14 dlers.

15 (B) APPOINTMENT FROM NOMINEES.—The

16 Secretary shall appoint the producer members of

17 the PromoFlor Council required by subpara18 graph (A)(v) from nominees submitted by pro19 ducers of cut flowers and cut greens described in

20 such paragraph. With respect to the other ap21 pointments to the PromoFlor Council required

22 by subparagraph (A), two nominees shall be sub23 mitted for each appointment pursuant to the

24 nomination process provided for in paragraph

25 (3). If nominees are not submitted for an ap-
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1 pointment, the Secretary may make the appoint2 ment on a basis to be provided in the order or

3 other regulations of the Secretary.

4 (C) GEOGRAPHICAL CONSIDERATIONS.—In

5 making appointments of qualified wholesale han6 dlers to the PromoFlor Council under subpara7 graph (A)(i), the Secretary shall take into ac8 count the geographical distribution of cut flowers

9 and cut greens markets in the United States. In

10 making appointments of producers of cut flowers

11 and cut greens to the PromoFlor Council under

12 subparagraph (A)(v), the Secretary shall ensure

13 that one member is selected from among produc14 ers located east of the Mississippi River and one

15 member is selected from among producers located

16 west of the Mississippi 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 and

23 that is subject to assessments as a qualified

24 handler under the order. For purposes of

25 this clause, the term ‘‘floral wholesale job-
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1 ber’’ means a person that conducts a com2 mission or other wholesale business in buy3 ing and selling cut flowers or cut greens,

4 and the term ‘‘floral supplier’’ means a per5 son engaged in acquiring cut flowers or cut

6 greens to be manufactured into floral arti7 cles or otherwise processed for resale.

8 (ii) PRODUCERS THAT ARE QUALIFIED

9 HANDLERS.—The term ‘‘producers that are

10 qualified handlers’’ means those persons

11 that are subject to assessments as a quali12 fied handler under the order and are en13 gaged—

14 (I) in the domestic production, for

15 sale in commerce, of cut flowers or cut

16 greens if the persons own or share in

17 the ownership and risk of loss of the

18 cut flowers or cut greens; or

19 (II) as a first processor of

20 noncultivated cut greens, in receiving

21 the cut greens from the persons that

22 gather them for handling.

23 (iii) IMPORTERS THAT ARE QUALIFIED

24 HANDLERS.—The term ‘‘importers that are

25 qualified handlers’’ means those persons—
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1 (I) whose principal activity is the

2 importation of cut flowers or cut

3 greens into the United States (either

4 directly or as an agent, broker, or con5 signee of any person or nation that

6 produces or handles cut flowers or cut

7 greens outside the United States for

8 sale in the United States); and

9 (II) that are subject to assessments

10 as a qualified handler under the order.

11 (3) NOMINATION PROCESS.—

12 (A) QUALIFIED HANDLERS.—Nominations

13 for the appointment to the PromoFlor Council of

14 qualified wholesale handlers, producers that are

15 qualified handlers, or importers that are quali16 fied handlers shall be made by qualified whole17 sale handlers, producers that are qualified han18 dlers, or importers that are qualified handlers,

19 whichever applies, through an election process

20 under regulations prescribed by the Secretary;

21 (B) RETAILERS.—Nominations for the re22 tailer appointment under paragraph (2)(A)(iv)

23 shall be made by the American Floral Marketing

24 Council, or successor entity.
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1 (4) ALTERNATES.—The order shall provide for

2 the selection of alternate members of the PromoFlor

3 Council by the Secretary under procedures specified

4 in the order.

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

6 member of the PromoFlor Council shall serve a term

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

8 seven members shall be appointed for a term of two

9 years, eight members shall be appointed for a term of

10 three years, and eight members shall be appointed for

11 a term of four years, as designated by the Secretary

12 at the time of appointment. No member of the

13 PromoFlor Council may serve more than two consecu14 tive terms of three years, except that any member

15 serving an initial term of four years may serve an

16 additional term of three years.

17 (6) COMPENSATION.—Members of the PromoFlor

18 Council shall serve without compensation, but shall be

19 reimbursed for their expenses incurred in performing

20 their duties as members of the PromoFlor Council.

21 (7) EXECUTIVE COMMITTEE.—

22 (A) ESTABLISHMENT.—The order shall au23 thorize the PromoFlor Council to appoint from

24 among its members an executive committee of

25 not more than nine members. The membership of
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1 the executive committee initially shall be com2 posed of four members appointed pursuant to

3 clause (i) of subparagraph (2)(A), two members

4 appointed pursuant to clause (ii) of such sub5 paragraph, two members appointed pursuant to

6 clause (iii) of such subparagraph, and one mem7 ber appointed pursuant to clause (iv) of such

8 subparagraph. Thereafter, appointments to the

9 executive committee shall be made so as to ensure

10 that the committee reflects, to the maximum ex11 tent practicable, the membership composition of

12 the PromoFlor Council as a whole. The initial

13 appointments to the executive committee shall be

14 for a term of two years. Thereafter, appoint15 ments to the executive committee shall be for a

16 term of one year.

17 (B) DELEGATION OF AUTHORITY.—The

18 PromoFlor Council may delegate to the executive

19 committee its authority under the order to hire

20 and manage staff and conduct the routine busi21 ness of the PromoFlor Council within the policies

22 determined by the PromoFlor Council.

23 (b) RESPONSIBILITIES OF THE PROMOFLOR COUN24 CIL.—
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1 (1) IN GENERAL.—The order shall define the re2 sponsibilities of the PromoFlor Council, which shall

3 include the general responsibilities described in this

4 subsection.

5 (2) ADMINISTRATION.—The PromoFlor Council

6 shall administer the order in accordance with its

7 terms and provisions and may prescribe such rules

8 and regulations to effectuate the terms and provisions

9 of the order as the PromoFlor Council considers ap10 propriate.

11 (3) STAFF.—The PromoFlor Council may em12 ploy such persons as the PromoFlor Council deter13 mines are necessary and set the compensation and de14 fine the duties of such persons.

15 (4) MISCELLANEOUS.—The PromoFlor Council

16 may receive complaints regarding violations of the

17 order and shall investigate and report to the Sec18 retary regarding such complaints. The PromoFlor

19 Council may recommend to the Secretary amend20 ments to the order. The PromoFlor Council shall fur21 nish the Secretary with such information as the Sec22 retary may require.

23 (c) BUDGETS.—

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

25 require the PromoFlor Council to prepare and submit
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1 to the Secretary on a fiscal year basis a budget of the

2 anticipated expenses and disbursements of the Board

3 to implement the order. The budget shall include pro4 jected costs of cut flowers and cut greens promotion,

5 consumer information, and related research plans and

6 projects.

7 (2) APPROVAL BY SECRETARY REQUIRED.—The

8 PromoFlor Council may not implement a budget sub9 mitted under paragraph (1) before the budget is ap10 proved by the Secretary.

11 (3) INVESTMENT AUTHORITY.—The order shall

12 provide the PromoFlor Council with the authority to

13 invest, pending disbursement under a plan or project,

14 funds collected through assessments authorized under

15 this title. Income from invested funds shall be used

16 only for a purpose for which the invested funds may

17 be used. The investment of such funds shall be made

18 only in—

19 (A) obligations of the United States or any

20 agency thereof;

21 (B) general obligations of any State or any

22 political subdivision thereof;

23 (C) any interest-bearing account or certifi24 cate of deposit of a bank that is a member of the

25 Federal Reserve System; or
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1 (D) obligations fully guaranteed as to prin2 cipal and interest by the United States.

3 (4) CONTROL OF ADMINISTRATIVE COSTS.—The

4 order shall provide that, as soon as practicable after

5 the date the order becomes effective and after consulta6 tion with the Secretary and other appropriate per7 sons, the PromoFlor Council shall implement a sys8 tem of cost controls based on normally accepted busi9 ness practices to ensure that the PromoFlor Council’s

10 annual budgets only include amounts for administra11 tive expenses that cover the minimum administrative

12 activities and personnel needed to properly admin13 ister and enforce the order and conduct, supervise,

14 and evaluate plans and projects under the order.

15 (d) PLANS AND PROJECTS.—

16 (1) PROMOTION AND CONSUMER INFORMATION.—

17 The order shall provide for the establishment, imple18 mentation, administration, and evaluation by the

19 PromoFlor Council of appropriate plans and projects

20 for advertising, sales promotion, other promotion, and

21 consumer information with respect to cut flowers and

22 cut greens. A plan or project under this paragraph

23 shall be directed toward increasing the general de24 mand for cut flowers or cut greens.
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1 (2) RESEARCH.—The order shall provide for the

2 establishment, implementation, administration, and

3 evaluation by the PromoFlor Council of plans and

4 projects for market development research, research

5 with respect to the sale, distribution, marketing, or

6 use of cut flowers or cut greens, and other research

7 with respect to cut flowers or cut greens marketing,

8 promotion, or consumer information. The PromoFlor

9 Council shall provide for the dissemination of infor10 mation resulting from research plans and projects

11 under this paragraph.

12 (3) DISBURSEMENT OF FUNDS.—The order shall

13 also provide authority for the disbursement by the

14 PromoFlor Council of necessary funds to carry out

15 the plans and projects under this subsection.

16 (4) SUBMISSION TO SECRETARY.—The order

17 shall provide that the PromoFlor Council shall submit

18 to the Secretary for approval any proposed plan or

19 project for cut flowers or cut greens promotion,

20 consumer information, or related research under this

21 subsection.

22 (5) APPROVAL BY SECRETARY REQUIRED.—The

23 PromoFlor Council may not implement a plan or

24 project for cut flowers or cut greens promotion,
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1 consumer information, or related research before the

2 plan or project is approved by the Secretary.

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

4 subsection may not make a reference to a private

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

6 supply, except that these limitations shall not pre7 clude the PromoFlor Council from offering its plans

8 and projects for use by commercial parties, under

9 terms and conditions prescribed by the PromoFlor

10 Council and approved by the Secretary. A plan or

11 project may not make use of unfair or deceptive acts

12 or practices with respect to quality or value.

13 (e) CONTRACTS AND AGREEMENTS.—

14 (1) PROMOTION, CONSUMER INFORMATION, AND

15 RELATED RESEARCH PLANS AND PROJECTS.—To en16 sure the efficient use of funds, the order shall provide

17 that, subject to the approval of the Secretary, the

18 PromoFlor Council may—

19 (A) enter into contracts or agreements for

20 the implementation of any plan or project under

21 subsection (d) for promotion, consumer informa22 tion, or related research with respect to cut flow23 ers or cut greens; and
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1 (B) pay costs related to the plan or project

2 with funds received by the PromoFlor Council

3 under the order.

4 (2) REQUIREMENTS OF CONTRACTS AND AGREE5 MENTS.—The order shall provide that any contract or

6 agreement under paragraph (1) shall provide that—

7 (A) the contracting or agreeing party shall

8 develop and submit to the PromoFlor Council a

9 plan or project together with a budget or budgets

10 that shall show estimated costs to be incurred

11 under the plan or project;

12 (B) the plan or project shall become effective

13 only upon the approval of the Secretary; and

14 (C) the contracting or agreeing party shall

15 keep accurate records of all of its transactions,

16 account for funds received and expended, make

17 periodic reports to the PromoFlor Council of ac18 tivities conducted, and make such other reports

19 as the PromoFlor Council or the Secretary may

20 require.

21 (3) OTHER CONTRACTS AND AGREEMENTS.—The

22 order shall provide that the PromoFlor Council also

23 may enter into contracts or agreements for adminis24 trative services. Any such contract or agreement shall
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1 include provisions comparable to those provided in

2 paragraph (2).

3 (f) BOOKS AND RECORDS OF THE PROMOFLOR COUN4 CIL.—

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

6 PromoFlor Council to maintain such books and

7 records (which shall be available to the Secretary for

8 inspection and audit) as the Secretary may prescribe.

9 The PromoFlor Council shall also prepare and submit

10 to the Secretary such reports as the Secretary may re11 quire and account for the receipt and disbursement of

12 all funds entrusted to the PromoFlor Council.

13 (2) AUDITS.—The PromoFlor Council shall cause

14 its books and records to be audited by an independent

15 auditor at the end of each fiscal year. A report of each

16 such audit shall be submitted to the Secretary.

17 (3) LISTS OF IMPORTERS.—The order shall re18 quire the staff of the PromoFlor Council to periodi19 cally review lists of importers of cut flowers and cut

20 greens to determine whether persons included in the

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

22 PromoFlor Council, the United States Customs Serv23 ice shall provide to the PromoFlor Council lists of im24 porters of cut flowers and cut greens.
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1 (g) PROHIBITION ON LOBBYING.—The order shall pro2 hibit the use of any funds received by the PromoFlor Coun3 cil in any manner for the purpose of influencing legislation

4 or government action or policy, except that funds may be

5 used by the PromoFlor Council for the development and rec6 ommendation to the Secretary of amendments to the order.

7 (h) CONSULTATIONS WITH INDUSTRY EXPERTS.—The

8 order shall provide that the PromoFlor Council may seek

9 advice from and consult with experts from the production,

10 import, wholesale, and retail segments of the cut flowers and

11 cut greens industry to assist in the development of pro12 motion, consumer information, and related research plans

13 and projects. For such purpose, the order also shall author14 ize the appointment of special committees composed of per15 sons other than PromoFlor Council members. A committee

16 appointed pursuant to the authority provided in this sub17 section may not provide advice or recommendations to an

18 agency or officer of the Federal Government, but shall con19 sult directly with the PromoFlor Council.

20 SEC. 306. ASSESSMENTS.

21 (a) AUTHORITY TO IMPOSE ASSESSMENT.—

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

23 title shall provide that each qualified handler shall

24 pay to the PromoFlor Council, in the manner pre25 scribed by the order, an assessment on each sale of cut
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1 flowers or cut greens (other than a sale described in

2 subsection (g)) to a retailer or an exempt handler.

3 This assessment requirement shall also apply to each

4 transaction described in paragraph (4).

5 (2) DETERMINATION OF QUALIFIED HANDLER OR

6 EXEMPT HANDLER STATUS.—The order shall contain

7 provisions regarding the making of determinations to

8 determine status as a qualified handler or exempt

9 handler that include the rules and requirements set

10 out in section 303(4) and subsections (a) and (b) of

11 section 307.

12 (3) PUBLISHED LISTS OF HANDLERS.—To facili13 tate the payment of assessments under this section,

14 the PromoFlor Council shall publish lists of qualified

15 handlers required to pay assessments under the order

16 and exempt handlers.

17 (4) CERTAIN COVERED TRANSACTIONS.—

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

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

20 greens to a retailer from a qualified handler that

21 is a distribution center, as described in section

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

23 flowers or cut greens to a consumer by a quali24 fied handler that is an importer or producer, as

25 described in section 303(4)(A)(iv), shall be treat-
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1 ed as a sale of cut flowers or cut greens to a re2 tailer subject to assessments under this sub3 section.

4 (B) DETERMINATION OF SALE AMOUNT FOR

5 DISTRIBUTION CENTERS.—In the case of a non6 sale transfer of cut flowers or cut greens from a

7 distribution center, the amount of the sale shall

8 be considered to be—

9 (i) the price paid by the distribution

10 center to acquire the cut flowers or cut

11 greens; plus

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

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

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

17 (C) DETERMINATION OF SALE AMOUNT FOR

18 DIRECT SALES BY IMPORTERS.—In the case of a

19 direct sale by an importer to a consumer, the

20 amount of the sale shall be considered to be—

21 (i) the price paid by the importer to

22 acquire the cut flowers or cut greens; plus

23 (ii) an amount determined by mul24 tiplying the acquisition price determined

25 under clause (i) by a uniform percentage es-
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1 tablished by the order to represent a whole2 sale handler’s mark-up on a sale to a re3 tailer.

4 (D) DETERMINATION OF SALE AMOUNT FOR

5 DIRECT SALES BY PRODUCERS.—In the case of a

6 direct sale by a producer to a consumer, the

7 amount of the sale shall be considered to be an

8 amount determined by applying to the price

9 paid by the consumer a uniform percentage es10 tablished by the order to represent the cost of

11 producing the article and a wholesale handler’s

12 mark-up on a sale to a retailer.

13 (E) ADJUSTMENT OF UNIFORM PERCENT14 AGE.—The PromoFlor Council may recommend

15 to the Secretary changes to the uniform percent16 age established by the order and used to deter17 mine the amount of annual sales of handlers

18 under section 303(4) and sale amounts under

19 this paragraph. The Secretary may make a

20 change in the uniform percentage based on such

21 a recommendation only after providing an op22 portunity for notice and comment regarding the

23 proposed change.

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

25 with the following assessment requirements:
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1 (1) INITIAL ASSESSMENT RATE.—The rate of as2 sessment on each sale or transfer of cut flowers or cut

3 greens, for the first three years the order is in effect,

4 shall be one-half of one percent of—

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

6 (B) in the case of transactions described in

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

8 calculated as provided in such subsection.

9 (2) CHANGES IN ASSESSMENT RATE.—

10 (A) AUTHORIZED AMOUNT OF CHANGE.—

11 Subject to subparagraph (B), after the first three

12 years the order is in effect, the uniform assess13 ment rate may be increased or decreased annu14 ally by not more than .25 percent of—

15 (i) the gross sales price of product sold;

16 or

17 (ii) in the case of transactions de18 scribed in subsection (a)(4), the amount of

19 the transaction calculated as provided in

20 such subsection.

21 (B) LIMITATION.—The assessment rate may

22 not exceed one percent of gross sales price or

23 transaction amount.

24 (C) METHOD OF CHANGING ASSESSMENT

25 AMOUNT.—Any change in the rate of assessment
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1 may be made only if adopted by the PromoFlor

2 Council by a two-thirds majority vote and ap3 proved by the Secretary as necessary to achieve

4 the objectives of this title. The Secretary may

5 make the change only after providing an oppor6 tunity for notice and comment regarding the

7 proposed change, and the change in the rate of

8 assessment shall be announced by the PromoFlor

9 Council at least 30 days prior to going into ef10 fect. A change in the rate of assessment shall not

11 be subject to a vote in a referendum under sec12 tion 308.

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

14 provide that each person required to pay assessments under

15 this section shall remit, to the PromoFlor Council, the as16 sessment due from each sale by that person of cut flowers

17 or cut greens that is subject to an assessment within such

18 time period after the sale (not to exceed 60 days from the

19 end of the month in which the sale took place) as specified

20 in the order.

21 (d) REFUNDS FROM ESCROW ACCOUNT.—

22 (1) ESTABLISHMENT OF ESCROW ACCOUNT.—The

23 order shall provide that the PromoFlor Council

24 shall—
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1 (A) establish an escrow account to be used

2 for assessment refunds as needed; and

3 (B) place into the escrow account an

4 amount equal to 10 percent of the total amount

5 of assessments collected during the period begin6 ning on the date the order goes into effect, as

7 provided in section 304(b)(3), and ending on the

8 date the initial referendum on the order provided

9 for in section 308(a) is completed.

10 (2) RIGHT TO RECEIVE REFUND.—

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

12 that, subject to paragraph (3) and the conditions

13 specified in subparagraph (B), any qualified

14 handler shall have the right to demand and re15 ceive from the PromoFlor Council out of the es16 crow account a one-time refund of any assess17 ments paid by or on behalf of the qualified han18 dler during the time period specified in para19 graph (1)(B), if—

20 (i) the qualified handler is required to

21 pay such assessments;

22 (ii) the qualified handler does not sup23 port the program established under this

24 title;
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1 (iii) the qualified handler demands a

2 refund prior to the conduct of the referen3 dum on the order under section 308(a); and

4 (iv) the order is not approved by quali5 fied handlers in the referendum.

6 (B) CONDITIONS.—The right of any quali7 fied handler to receive refunds under subpara8 graph (A) shall be subject to the following condi9 tions:

10 (i) The demand shall be made in ac11 cordance with regulations, on a form, and

12 within a time period prescribed by the

13 PromoFlor Council.

14 (ii) The refund shall be made only on

15 submission of proof satisfactory to the

16 PromoFlor Council that the qualified han17 dler paid the assessment for which refund is

18 demanded.

19 (iii) If the amount in the escrow ac20 count required under paragraph (1) is not

21 sufficient to refund the total amount of as22 sessments demanded by all qualified han23 dlers determined eligible for refunds and the

24 order is not approved in the referendum on

25 the order under section 308(a), the
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1 PromoFlor Council shall prorate the

2 amount of all such refunds among all eligi3 ble qualified handlers that demand a re4 fund.

5 (3) PROGRAM APPROVED.—The order shall pro6 vide that, if the order is approved in the referendum

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

8 and all funds in the escrow account shall be returned

9 to the PromoFlor Council for use by the PromoFlor

10 Council in accordance with the other provisions of the

11 order.

12 (e) USE OF ASSESSMENT FUNDS.—The order shall pro13 vide that assessment funds (net of any refunds paid out

14 under the terms of the order contained in subsection (d))

15 shall be used for payment of costs incurred in implementing

16 and administering the order, with provision for a reason17 able reserve, and to cover those administrative costs in18 curred by the Secretary in implementing and administer19 ing this title, except for the salaries of Government employ20 ees incurred in conducting referenda.

21 (f) POSTPONEMENT OF COLLECTIONS.—

22 (1) AUTHORITY.—Notwithstanding any other

23 provision of this title, the PromoFlor Council may

24 grant a postponement of the payment of assessments

25 under this section for any qualified handler that es-
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1 tablishes that it is financially unable to make the

2 payment. The granting of such a postponement shall

3 be considered under application and documentation

4 requirements and review procedures established under

5 rules recommended by the PromoFlor Council, ap6 proved by the Secretary, and issued after providing

7 public notice and an opportunity to comment on the

8 proposed rules.

9 (2) CRITERIA AND RESPONSIBILITY FOR DETER10 MINATIONS.—To establish that it is financially unable

11 to pay assessments, an applicant for a postponement

12 shall demonstrate that it is insolvent and will be un13 able to continue to operate if it is required to pay as14 sessments when they are otherwise due. As part of

15 making such a demonstration, the applicant shall

16 submit an opinion of an independent certified pubic

17 accountant and any other documentation required

18 under rules prescribed under paragraph (1). All

19 books, records, and other documentation submitted by

20 a qualified handler under this paragraph shall be

21 subject to the confidentiality requirements of section

22 307(d).

23 (3) PERIOD OF POSTPONEMENT.—The time pe24 riod of any postponement and the terms and condi25 tions of payment of assessments that are postponed
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1 under this subsection shall be established by the

2 PromoFlor Council, in accordance with rules pre3 scribed under paragraph (1), so as to appropriately

4 reflect the proven needs of the qualified handler. Post5 ponements may be extended under the requirements

6 and procedures established pursuant to paragraph (1)

7 for the grant of initial postponements.

8 (g) EXCLUSION FROM ASSESSMENTS.—The order shall

9 exclude from assessments under the order any sale of cut

10 flowers or cut greens for export from the United States.

11 SEC. 307. MISCELLANEOUS REQUIREMENTS OF ORDER.

12 (a) DETERMINATION OF ANNUAL SALES.—

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

14 $750,000 annual sales limitation to specific persons

15 in order to determine status as a qualified handler or

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

17 facilities in order to determine status as an eligible

18 separate facility under section 308(b)(2), any order

19 issued under this title shall provide that a determina20 tion of a person’s or facility’s annual sales volume

21 shall be based on the sales of cut flowers and cut

22 greens by the person or facility during the most re23 cently-completed calendar year.

24 (2) SPECIAL RULE FOR NEW BUSINESSES.—With

25 respect to new businesses and other operations for
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1 which complete data on sales during all or part of the

2 most recently-completed calendar year are not avail3 able to the PromoFlor Council, the determination

4 under paragraph (1) may be made using an alter5 native time period or other alternative procedures

6 specified in the order.

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

8 order may require each person that sells cut flowers

9 or cut greens to retailers to submit reports to the

10 PromoFlor Council on annual sales by the person. A

11 report under this subsection shall be subject to the

12 confidentiality requirements provided in subsection

13 (d).

14 (b) RULE OF ATTRIBUTION.—

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

16 the annual sales volume of a person or a separate fa17 cility of a person, sales attributable to a person shall

18 include—

19 (A) in those cases in which the person is an

20 individual, sales attributable to such person’s

21 spouse, children, grandchildren, parents, and

22 grandparents;

23 (B) in those cases in which the person is a

24 partnership or member of a partnership, sales
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1 attributable to the partnership and other part2 ners of the partnership;

3 (C) for both individuals and partnerships,

4 sales attributable to any corporation or other en5 tity in which the person owns more than 50 per6 cent of the stock or (if the entity is not a cor7 poration) that the person controls; and

8 (D) in those cases in which the person is a

9 corporation, sales attributable to any corporate

10 subsidiary or other corporation or entity in

11 which the corporation owns more than 50 per12 cent of the stock or (if the entity is not a cor13 poration) that the corporation controls.

14 (2) TREATMENT OF CERTAIN STOCK AND OWNER15 SHIP INTERESTS.—For purposes of this subsection,

16 stock or an ownership interest in an entity that is

17 owned by the spouse, children, grandchildren, parents,

18 grandparents, or partners of an individual, or by a

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

20 corporation more than 50 percent of the stock of

21 which is owned by a person, shall be treated as owned

22 by the individual or person.

23 (c) BOOKS, RECORDS, AND REPORTS.—So that infor24 mation is available to the Secretary and the PromoFlor

25 Council for the administration and enforcement of this title,
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1 the order, or any regulation issued under this title, the order

2 shall provide that each qualified handler shall—

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

4 such books and records as may be required by the

5 order; and

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

7 having the content prescribed by the order, to the end

8 that information is made available to the Secretary

9 and the PromoFlor Council as is appropriate for the

10 administration or enforcement of this title, the order,

11 or any regulation issued under this title.

12 (d) CONFIDENTIALITY REQUIRED.—

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

14 PromoFlor Council from books, records, or reports re15 quired to be maintained under this section shall be

16 kept confidential by all officers and employees of the

17 Department of Agriculture and by the staff and

18 agents of the PromoFlor Council. Such information

19 may be disclosed to the public only in a suit or ad20 ministrative hearing involving the order that is

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

22 the Secretary or any officer of the United States is a

23 party), and then, only to the extent the Secretary con24 siders relevant.
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1 (2) RULE OF CONSTRUCTION.—Nothing in para2 graph (1) prohibits—

3 (A) the issuance of general statements, based

4 on the reports, of the number of persons subject

5 to the order or statistical data collected there6 from, which statements do not identify the infor7 mation furnished by any person; or

8 (B) the publication, by direction of the Sec9 retary, of the name of any person violating the

10 order, together with a statement of the particular

11 provisions of the order violated by the person.

12 (e) OTHER TERMS OF ORDER.—The order shall con13 tain such other terms and provisions, not inconsistent with

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

15 provision for the assessment of interest and a charge for

16 each late payment of assessments under this section.

17 SEC. 308. REFERENDA.

18 (a) REQUIREMENT FOR INITIAL REFERENDUM.—

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

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

21 Secretary shall conduct a referendum among qualified

22 handlers required to pay assessments under the order

23 to ascertain whether or not the order then in effect

24 shall be continued.
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1 (2) APPROVAL OF ORDER NEEDED.—The order

2 shall be continued only if the Secretary determines

3 that the order has been approved by a simple major4 ity of all votes cast in the referendum. If the order is

5 not approved, the Secretary shall terminate the order

6 as provided in subsection (d).

7 (b) VOTES PERMITTED.—

8 (1) IN GENERAL.—Each qualified handler eligi9 ble to vote in a referendum under this section may

10 cast one vote for each separate facility of the person

11 that is an eligible separate facility, as determined

12 under paragraph (2).

13 (2) ELIGIBLE SEPARATE FACILITY.—

14 (A) SEPARATE FACILITY.—A handling or

15 marketing facility of a qualified handler shall be

16 considered a separate facility if it is physically

17 located away from other facilities of the qualified

18 handler or its business function is substantially

19 different than the functions of other facilities

20 owned or operated by the qualified handler.

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

22 qualified handler shall be considered to be an eli23 gible separate facility if the annual sales of cut

24 flowers and cut greens to retailers and exempt

25 handlers from the facility are $750,000 or more.
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1 (C) ANNUAL SALES DETERMINED.—Sub2 paragraphs (A) and (C) of section 303(4) shall

3 apply for purposes of determining the amount of

4 annual sales of cut flowers and cut greens under

5 subparagraph (B).

6 (c) SUSPENSION OR TERMINATION REFERENDA.—Ef7 fective beginning three years after the date on which an

8 order issued under this title is approved in a referendum

9 conducted under subsection (a), the Secretary—

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

11 any time a referendum of qualified handlers required

12 to pay assessments under the order to ascertain

13 whether or not qualified handlers favor suspension or

14 termination of the order; and

15 (2) whenever requested by the PromoFlor Council

16 or by a representative group comprising 30 percent or

17 more of all qualified handlers required to pay assess18 ments under the order, shall conduct a referendum of

19 all qualified handlers required to pay such assess20 ments to ascertain whether or not qualified handlers

21 favor suspension or termination of the order.

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

23 the referendum conducted under subsection (a), the Sec24 retary determines that the order has not been approved by

25 a simple majority of all votes cast in the referendum, or
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1 as a result of a referendum conducted under subsection (c),

2 the Secretary determines that suspension or termination of

3 the order is favored by a simple majority of all votes cast

4 in the referendum, the Secretary shall—

5 (1) within six months after the referendum, sus6 pend or terminate, as appropriate, collection of as7 sessments under the order; and

8 (2) suspend or terminate, as appropriate, activi9 ties under the order in an orderly manner as soon as

10 practicable.

11 (e) MANNER OF CONDUCTING REFERENDA.—

12 Referenda under this section shall be conducted in such

13 manner as is determined appropriate by the Secretary.

14 SEC. 309. PETITION AND REVIEW.

15 (a) PETITION AND HEARING.—

16 (1) PETITION.—A person subject to an order is17 sued under this title may file with the Secretary a pe18 tition—

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

20 the order, or any obligation imposed in connec21 tion with the order is not in accordance with

22 law; and

23 (B) requesting a modification of the order

24 or an exemption from the order.
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1 (2) HEARING.—The petitioner shall be given the

2 opportunity for a hearing on a petition filed under

3 paragraph (1), in accordance with regulations issued

4 by the Secretary. Any such hearing shall be conducted

5 in accordance with section 311(b)(2) and be held

6 within the United States judicial district in which

7 the person’s residence or principal place of business is

8 located.

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

10 (2), the Secretary shall make a ruling on the petition,

11 which shall be final if in accordance with law.

12 (b) REVIEW.—

13 (1) COMMENCEMENT OF ACTION.—The district

14 courts of the United States in any district in which

15 a person that is a petitioner under subsection (a) re16 sides or carries on business are hereby vested with ju17 risdiction to review the Secretary’s ruling on the per18 son’s petition, if a complaint for that purpose is filed

19 within 20 days after the date of the entry of the rul20 ing by the Secretary.

21 (2) PROCESS.—Service of process in proceedings

22 under this subsection shall be conducted in accordance

23 with the Federal Rules of Civil Procedure.

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

25 under this subsection determines that the Secretary’s
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1 ruling on the person’s petition is not in accordance

2 with law, the court shall remand the matter to the

3 Secretary with directions either—

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

5 determine to be in accordance with law; or

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

7 opinion of the court, the law requires.

8 (c) ENFORCEMENT UNDER SECTION 310.—The pend9 ency of proceedings instituted under this section shall not

10 impede, hinder, or delay the Attorney General or the Sec11 retary from obtaining relief under section 310.

12 SEC. 310. ENFORCEMENT.

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

14 United States are vested with jurisdiction specifically to en15 force, and to prevent and restrain any person from violat16 ing, this title or an order or regulation made or issued by

17 the Secretary under this title.

18 (b) REFERRAL TO ATTORNEY GENERAL.—The Sec19 retary shall refer to the Attorney General for appropriate

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

21 regulation made or issued by the Secretary under this title,

22 except that the Secretary is not required to refer to the At23 torney General such a violation if the Secretary believes

24 that the administration and enforcement of this title would

25 be adequately served by administrative action under sub-
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1 section (c) or suitable written notice or warning to the per2 son who committed or is committing the violation.

3 (c) CIVIL PENALTIES AND ORDERS.—

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

5 provision of this title, or an order or regulation issued

6 by the Secretary under this title, or who fails or re7 fuses to pay, collect, or remit any assessment or fee

8 duly required of the person under an order or regula9 tion issued under this title, may be assessed by the

10 Secretary—

11 (A) a civil penalty of not less than $500 nor

12 more than $5,000 for each such violation; and

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

14 an assessment as required by an order or regula15 tion, an additional penalty equal to the amount

16 of the assessment.

17 (2) TREATMENT AS SEPARATE OFFENSES.—Each

18 violation described in paragraph (1) shall be treated

19 as a separate offense.

20 (3) CEASE AND DESIST ORDERS.—In addition to

21 or in lieu of a civil penalty under paragraph (1), the

22 Secretary may issue an order requiring a person to

23 cease and desist from continuing a violation of this

24 title or an order or regulation issued under this title.
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1 (4) NOTICE AND HEARING.—No penalty shall be

2 assessed or cease and desist order issued by the Sec3 retary under this subsection unless the Secretary gives

4 the person against whom the penalty is assessed or

5 the order is issued notice and opportunity for a hear6 ing before the Secretary with respect to the violation.

7 The hearing shall be conducted in accordance with

8 section 311(b)(2) and be held within the United

9 States judicial district in which the person’s residence

10 or principal place of business is located.

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

12 and desist order issued under this subsection shall be

13 final and conclusive unless the person against whom

14 the penalty is assessed or the order is issued files an

15 appeal with the appropriate district court of the

16 United States in accordance with subsection (d).

17 (d) REVIEW BY DISTRICT COURT.—

18 (1) COMMENCEMENT OF ACTION.—Any person

19 against whom a violation is found and a civil pen20 alty assessed or cease and desist order issued under

21 subsection (c) may obtain review of the penalty or

22 order by—

23 (A) filing, within the 30-day period begin24 ning on the date the penalty is assessed or order

25 issued, a notice of appeal in the district court of
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1 the United States for the district in which the

2 person resides or carries on business, or in the

3 United States district court for the District of

4 Columbia; and

5 (B) simultaneously sending a copy of the

6 notice by certified mail to the Secretary.

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

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

9 shall promptly file in the district court in which the

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

11 on which the Secretary found that the person had

12 committed a violation.

13 (3) STANDARD OF REVIEW.—A finding of the

14 Secretary shall be set aside under this subsection only

15 if the finding is found to be unsupported by substan16 tial evidence.

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

18 to obey a cease and desist order issued under subsection (c)

19 after the order has become final and unappealable, or after

20 the appropriate United States district court has entered a

21 final judgment in favor of the Secretary, shall be subject

22 to a civil penalty assessed by the Secretary of not more than

23 $5,000 for each offense, after opportunity for a hearing and

24 for judicial review under the procedures specified in sub25 sections (c) and (d). Each day during which the failure con-
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1 tinues shall be considered as a separate violation of the

2 order.

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

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

5 after the penalty has become final and unappealable, or

6 after the appropriate United States district court has en7 tered final judgment in favor of the Secretary, the Secretary

8 shall refer the matter to the Attorney General for recovery

9 of the amount assessed in any United States district court

10 in which the person resides or carries on business. In such

11 action, the validity and appropriateness of the civil penalty

12 shall not be subject to review.

13 (g) ADDITIONAL REMEDIES.—The remedies provided

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

15 other remedies that may be available.

16 SEC. 311. INVESTIGATIONS AND POWER TO SUBPOENA.

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

18 investigations as the Secretary considers necessary for the

19 effective administration of this title, or to determine wheth20 er any person has engaged or is engaging in any act that

21 constitutes a violation of this title, or any order or regula22 tion issued under this title.

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

24 (1) INVESTIGATIONS.—For the purpose of an in25 vestigation under subsection (a), the Secretary may
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1 administer oaths and affirmations, and issue subpoe2 nas to require the production of any records that are

3 relevant to the inquiry. The production of any such

4 records may be required from any place in the United

5 States.

6 (2) ADMINISTRATIVE HEARINGS.—For the pur7 pose of an administrative hearing held under section

8 309(a)(2) or 310(c)(4), the presiding officer may ad9 minister oaths and affirmations, subpoena witnesses,

10 compel their attendance, take evidence, and require

11 the production of any records that are relevant to the

12 inquiry. The attendance of witnesses and the produc13 tion of any such records may be required from any

14 place in the United States.

15 (c) AID OF COURTS.—

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

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

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

19 United States within the jurisdiction of which the in20 vestigation or proceeding is carried on, or where the

21 person resides or carries on business, in order to en22 force a subpoena issued under subsection (b). The

23 court may issue an order requiring the person to com24 ply with such a subpoena. Any failure to obey the
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1 order of the court may be punished by the court as

2 a contempt thereof.

3 (2) PROCESS.—Process in any proceeding under

4 this subsection may be served in the United States ju5 dicial district in which the person being proceeded

6 against resides or carries on business or wherever the

7 person may be found.

8 SEC. 312. CONFIDENTIALITY.

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

10 voted in a referendum conducted under this title shall be

11 made public.

12 (b) PENALTY.—Any person knowingly violating sub13 section (a) or the confidentiality terms of an order, as de14 scribed in section 307(d), on conviction shall be subject to

15 a fine of not less than $1,000 nor more than $10,000 or

16 to imprisonment for not more than one year, or both, and,

17 if an officer or employee of the Department of Agriculture

18 or the PromoFlor Council, shall be removed from office.

19 (c) ADDITIONAL PROHIBITION.—No information ob20 tained under this title may be made available to any agency

21 or officer of the Federal Government for any purpose other

22 than the implementation of this title and any investigatory

23 or enforcement actions necessary for the implementation of

24 this title.
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1 (d) WITHHOLDING INFORMATION FROM CONGRESS

2 PROHIBITED.—Nothing in this title authorizes the with3 holding of information from Congress.

4 SEC. 313. AUTHORITY FOR SECRETARY TO SUSPEND OR

5 TERMINATE ORDER.

6 Whenever the Secretary finds that an order issued

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

8 does not tend to effectuate the declared policy of this title,

9 the Secretary shall terminate or suspend the operation of

10 the order or provision under such terms as the Secretary

11 determines appropriate.

12 SEC. 314. CONSTRUCTION.

13 (a) TERMINATION OR SUSPENSION NOT AN ORDER.—

14 The termination or suspension of an order, or any provi15 sion thereof, shall not be considered an order under the

16 meaning of this title.

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

18 construed to provide for control of production or otherwise

19 limit the right of individual cut flowers and cut greens pro20 ducers to produce cut flowers and cut greens. This title seeks

21 to treat all persons producing cut flowers and cut greens

22 fairly and to implement any order established hereunder

23 equitably in every respect.

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

25 construed to preempt or supersede any other program relat-
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1 ing to cut flowers or cut greens promotion and consumer

2 information organized and operated under the laws of the

3 United States or any State.

4 SEC. 315. REGULATIONS.

5 The Secretary may issue such regulations as are nec6 essary to carry out this title and the powers vested in the

7 Secretary by this title, including regulations relating to the

8 assessment of late payment charges and interest.

9 SEC. 316. AUTHORIZATION OF APPROPRIATIONS.

10 (a) IN GENERAL.—There are authorized to be appro11 priated for each fiscal year such sums as may be necessary

12 to carry out this title.

13 (b) ADMINISTRATIVE EXPENSES.—Funds appro14 priated under subsection (a) may not be used for payment

15 of the expenses or expenditures of the PromoFlor Council

16 in administering any provision of an order issued under

17 this title.

18 SEC. 317. SEPARABILITY.

19 If any provision of this title or the application thereof

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

21 of the remainder of the title and of the application of such

22 provision to other persons and circumstances shall not be

23 affected thereby.
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1 TITLE IV—LIME RESEARCH, PRO2 MOTION, AND CONSUMER IN3 FORMATION

4 SEC. 401. SHORT TITLE.

5 This title may be cited as the ‘‘Lime Research, Pro6 motion, and Consumer Information Improvement Act’’.

7 SEC. 402. FINDINGS AND PURPOSE.

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

9 (1) The Lime Research, Promotion, and

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

11 seq.) was enacted on November 28, 1990, for the pur12 pose of establishing an orderly procedure for the devel13 opment and financing of an effective and coordinated

14 program of research, promotion, and consumer infor15 mation to strengthen the domestic and foreign mar16 kets for limes.

17 (2) The lime research, promotion, and consumer

18 information order required by such Act became effec19 tive on January 27, 1992.

20 (3) Although the intent of such Act was to cover

21 seedless limes, the definition of the term ‘‘lime’’ in sec22 tion 1953(6) of such Act (7 U.S.C. 6202(6)) applies

23 to seeded limes. Therefore, the Act and the order need

24 to be revised before a research, promotion, and
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1 consumer information program on seedless limes can

2 go into effect.

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

4 States production of fresh market limes has plum5 meted and the volume of imports has risen dramati6 cally. The drop in United States production is pri7 marily due to damage to lime orchards in the State

8 of Florida by Hurricane Andrew in August 1992.

9 United States production is not expected to reach pre10 Hurricane Andrew levels for possibly two to three

11 years because a majority of the limes produced in the

12 United States are produced in Florida.

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

14 the Lime Research, Promotion, and Consumer Information

15 Act of 1990 (7 U.S.C. 6201 et seq.)—

16 (1) to cover seedless rather than seeded limes;

17 (2) to increase the exemption level;

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

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

20 SEC. 403. DEFINITION OF LIME.

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

22 Consumer Information Act of 1990 (7 U.S.C. 6202(6)) is

23 amended by striking ‘‘citrus aurantifolia’’ and inserting

24 ‘‘citrus latifolia’’.
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1 SEC. 404. REQUIRED TERMS IN ORDERS.

2 (a) COMPOSITION OF LIME BOARD.—Subsection (b) of

3 section 1955 of the Lime Research, Promotion, and

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

5 amended—

6 (1) in paragraph (1)(A), by striking ‘‘7’’ and in7 serting ‘‘3’’;

8 (2) in paragraph (2)(B), by striking ‘‘7’’ and in9 serting ‘‘3’’; and

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

11 the following new sentence: ‘‘The Secretary shall ter12 minate the initial Board established under this sub13 section as soon as practicable after the date of the en14 actment of the Lime Research, Promotion, and

15 Consumer Information Improvement Act.’’.

16 (b) ALLOCATION OF MEMBERS.—Subsection (b)(2) of

17 such section is amended—

18 (1) in subparagraph (B) (as amended by sub19 section (a)(2)), by adding at the end the following

20 new sentence: ‘‘Of these producer members, 2 members

21 shall be appointed from the district east of the Mis22 sissippi River and 1 member shall be appointed from

23 the district west of the Mississippi River.’’; and

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

25 the following new sentence: ‘‘Of these importer mem26 bers, 1 member shall be appointed from the district
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1 east of the Mississippi River and 2 members shall be

2 appointed from the district west of the Mississippi

3 River.’’.

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

5 section is amended—

6 (1) by striking ‘‘Members of’’ and all that follows

7 through ‘‘appointed—’’ and inserting ‘‘The initial

8 members of the Board appointed under the amended

9 order shall serve a term of 30 months. Subsequent ap10 pointments to the Board shall be for a term of 3

11 years, except that—’’;

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

13 inserting ‘‘2’’;

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

15 inserting ‘‘2’’; and

16 (4) in subparagraph (C), by striking ‘‘4’’ and in17 serting ‘‘3’’.

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

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

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

21 SEC. 405. INITIAL REFERENDUM.

22 Section 1960(a) of the Lime Research, Promotion, and

23 Consumer Information Act of 1990 (7 U.S.C. 6209(a)) is

24 amended by striking ‘‘Not later than 2 years after the date

25 on which the Secretary first issues an order under section
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1 1954(a),’’ and inserting ‘‘Not later than 30 months after

2 the date on which the collection of assessments begins under

3 the order pursuant to section 1955(d),’’.

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