I

103D CONGRESS

1ST SESSION H. R. 3515

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

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

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

and for other purposes.

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

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

3 Research and Promotion Improvement Act’’.

4 SEC. 2. TABLE OF CONTENTS.

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

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—EGG RESEARCH AND CONSUMER INFORMATION

Sec. 101. Short title.

Sec. 102. Rate of assessment.

Sec. 103. Exempted egg producers.

TITLE II—WATERMELON RESEARCH AND PROMOTION

Sec. 201. Short title.

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

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

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

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

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

Sec. 207. Elimination of watermelon assessment refund.

Sec. 208. Equitable treatment of watermelon plans.

Sec. 209. Separate consideration of watermelon plan amendments.

TITLE III—FRESH CUT FLOWERS AND FRESH CUT GREENS

PROMOTION AND INFORMATION

Sec. 301. Short title.

Sec. 302. Findings and declaration of policy.

Sec. 303. Definitions.

Sec. 304. Issuance of orders.

Sec. 305. Required terms in orders.

Sec. 306. Assessments.

Sec. 307. Required determinations.

Sec. 308. Referenda.

Sec. 309. Petition and review.

Sec. 310. Enforcement.

Sec. 311. Investigations and power to subpoena.

Sec. 312. Confidentiality.

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

Sec. 314. Construction.

Sec. 315. Regulations.

Sec. 316. Authorization of appropriations.

Sec. 317. Separability.

TITLE IV—LIME RESEARCH, PROMOTION, AND CONSUMER

INFORMATION

Sec. 401. Short title.
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Sec. 402. Findings and purpose.

Sec. 403. Definition of lime.

Sec. 404. Required terms in orders.

Sec. 405. Initial referendum.

1 TITLE I—EGG RESEARCH AND

2 CONSUMER INFORMATION

3 SEC. 101. SHORT TITLE.

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

5 Consumer Information Improvement Act’’.

6 SEC. 102. RATE OF ASSESSMENT.

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

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

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

12 (2) by designating the fifth and sixth sentences

13 as paragraph (3);

14 (3) by striking the third and fourth sentences

15 and inserting the following new paragraph:

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

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

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

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

21 the rate of assessment (subject to the limitation in sub22 paragraph (A)) only if the increase is recommended by the
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1 Egg Board and approved by egg producers in a referen2 dum conducted under section 9(b).

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

4 the rate of assessment only if the decrease is recommended

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

6 shall take effect only after the Secretary provides public

7 notice and an opportunity for comment in accordance with

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

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

11 (4) by conforming the margins of paragraphs

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

13 paragraph (2).

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

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

16 2708) is amended—

17 (1) by designating the first two sentences as

18 subsection (a);

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

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

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

24 on scientific studies, marketing analysis, or other similar

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

2 set at an appropriate level to effectuate the declared policy

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

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

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

7 among egg producers not exempt hereunder who, during

8 a representative period determined by the Secretary, have

9 been engaged in the production of commercial eggs, for

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

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

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

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

18 period defined by the Secretary.

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

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

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

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

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

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

3 request from the Egg Board.

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

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

7 in a referendum under this subsection, the Secretary shall

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

10 on the date it is issued.’’; and

11 (4) by conforming the margins of subsections

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

14 SEC. 103. EXEMPTED EGG PRODUCERS.

15 (a) INCREASE IN EXEMPTION AMOUNT.—Section

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

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

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

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

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

23 promotion and research order issued under such Act. The

24 amendment to the order shall be issued after public notice

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

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

3 to the order. The Secretary shall issue the proposed

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

5 date of the enactment of this title.

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

7 promotion and research order required by subsection (b)

8 shall become effective not later than 120 days after the

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

10 not be subject to a referendum under the Egg Research

11 and Consumer Information Act.

12 TITLE II—WATERMELON

13 RESEARCH AND PROMOTION

14 SEC. 201. SHORT TITLE.

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

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

17 SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM

18 PROCEDURES.

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

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

22 (2) by striking the third sentence; and

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

2 effect unless the Secretary determines that the issuance

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

4 producers and handlers (and importers if subject to the

5 plan) voting in the referendum.’’.

6 SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE

7 UNITED STATES.

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

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

10 amended—

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

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

14 paragraph:

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

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

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

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

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

22 Section 1647(c) of the Watermelon Research and

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

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

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

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

5 representative of handlers and not as a representative of

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

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

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

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

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

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

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

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

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

22 SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT

23 TO FORMAL RULEMAKING.

24 Section 1647(f) of the Watermelon Research and

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

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

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

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

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

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

10 Section 1647(h) of the Watermelon Research and

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

12 (1) by inserting ‘‘(1) Except as provided in

13 paragraph (2)’’ after ‘‘(h)’’; and

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

15 paragraphs:

16 ‘‘(2) If approved in the referendum required by sec17 tion 1655(b) relating to the elimination of the assessment

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

19 the plan which is in effect on the day before the date of

20 the enactment of the Watermelon Research and Promotion

21 Improvement Act to eliminate such refund provision.

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

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

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

25 be entitled to apply for a refund of the equivalent of the
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1 rate of assessment paid by domestic producers. The Sec2 retary may adjust the weight exemption contained in this

3 paragraph upon the recommendation of the Board after

4 an opportunity for notice and comment to reflect signifi5 cant changes in the 5-year average yield per acre of water6 melons in the United States.’’.

7 SEC. 208. EQUITABLE TREATMENT OF WATERMELON

8 PLANS.

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

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

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

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

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

14 into the United States.’’;

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

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

17 (3) by inserting after paragraph (5) the follow18 ing new paragraphs:

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

20 who imports watermelons into the United States.

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

22 the Secretary under this subtitle.’’.

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

24 (7 U.S.C. 4903), as amended by section 203(b), is further

25 amended—
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1 (1) in the first sentence, by striking ‘‘and han2 dlers’’ and inserting ‘‘, handlers, and importers’’;

3 (2) by striking the second sentence; and

4 (3) in the last sentence, by inserting ‘‘or im5 ported into the United States’’ before the period.

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

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

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

10 and

11 (2) in the last sentence, by striking ‘‘or han12 dlers’’ and inserting ‘‘, handlers, or importers’’.

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

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

15 is further amended—

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

17 (2) in the second sentence, by striking ‘‘pro18 ducer and handler members’’ and inserting ‘‘other

19 members’’; and

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

21 paragraph:

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

23 shall also include one or more representatives of importers

24 who shall be appointed by the Secretary from nominations

25 submitted by importers in such manner as may be pre-
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1 scribed by the Secretary. Importer representation on the

2 Board shall be proportionate to the percentage of assess3 ments paid by importers to the Board, except that there

4 shall always be at least one representative of importers

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

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

7 Secretary may appoint any importers as the representa8 tives of importers. Every 5 years, the Secretary shall

9 evaluate the average annual percentage of assessments

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

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

12 representatives on the Board.’’.

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

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

15 amended—

16 (1) in paragraph (4)—

17 (A) by striking ‘‘(4) assessments’’ and in18 serting ‘‘(4) Assessments’’; and

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

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

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

22 paragraph:

23 ‘‘(5) If importers are subject to the plan, an as24 sessment shall also be made on watermelons im25 ported into the United States by such importers.
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1 The rate of assessment for importers (if subject to

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

3 producers and handlers.’’.

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

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

6 amended—

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

8 places it appears the following: ‘‘(or importer if sub9 ject to the plan)’’; and

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

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

12 (g) ASSESSMENT PROCEDURES.—Section 1649 of

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

14 (1) in subsection (a)—

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

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

17 paragraph:

18 ‘‘(2) If importers are subject to the plan, each im19 porter required to pay assessments under the plan shall

20 be responsible for payment to the Board, as it may direct,

21 of the assessment. The assessment on imported water22 melons shall be equal to the combined rate for domestic

23 producers and handlers and shall be paid by the importer

24 to the Board at the time of the entry of the watermelons

25 into the United States. Each such importer shall maintain
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1 a separate record including the total quantity of water2 melons imported into the United States that are included

3 under the terms of the plan, as well as those that are ex4 empt under such plan, and shall indicate such other infor5 mation as may be prescribed by the Board. No more than

6 one assessment shall be made on any imported water7 melons.’’;

8 (2) in subsection (b), by inserting ‘‘and import9 ers’’ after ‘‘Handlers’’; and

10 (3) in subsection (c)(1), by inserting ‘‘or im11 porters’’ after ‘‘handlers’’.

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

13 (7 U.S.C. 4911(a)) is amended—

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

15 or any other person’’ and by inserting ‘‘a person’’;

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

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

18 and

19 (3) in the last sentence, by striking ‘‘the han20 dler or other person’’ and inserting ‘‘the person’’.

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

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

23 amended—

24 (1) in the first sentence—
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1 (A) by striking ‘‘and handlers’’ both places

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

4 (B) by striking ‘‘or handling’’ and insert5 ing ‘‘, handling, or importing’’;

6 (2) by striking the second sentence; and

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

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

9 ‘‘, handler, or importer’’; and

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

11 ‘‘, handled, or imported’’.

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

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

14 (1) in the first sentence—

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

16 and inserting ‘‘at least 10 percent of the com17 bined total’’; and

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

19 it appears and inserting ‘‘, handlers, and im20 porters’’;

21 (2) in the second sentence—

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

23 ‘‘, handle, or import’’;

24 (B) by striking ‘‘50 per centum’’ and in25 serting ‘‘50 percent of the combined total’’; and
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1 (C) by striking ‘‘or handled by the han2 dlers,’’ and inserting ‘‘, handled by the han3 dlers, and imported by the importers’’; and

4 (3) by striking the last sentence.

5 (k) CONFORMING AND TECHNICAL AMENDMENTS.—

6 Such Act is further amended—

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

8 4901(a)(5)), by striking ‘‘and handling’’ and insert9 ing ‘‘handling, and importing’’;

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

11 U.S.C. 4901(b))—

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

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

14 States’’; and

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

16 States’’;

17 (3) in section 1643 (7 U.S.C. 4902), as amend18 ed by subsection (a) and section 203—

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

20 ‘‘subtitle:’’;

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

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

23 term’’;
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1 (C) in paragraphs (1), (2), (4), and (5), by

2 striking the semicolon at the end and inserting

3 a period;

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

5 subsection (a)(2)—

6 (i) by striking ‘‘the term’’ and insert7 ing ‘‘The term’’; and

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

9 a period; and

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

11 subsection (a)(2)—

12 (i) by striking ‘‘the term’’ and insert13 ing ‘‘The term’’; and

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

15 ‘‘1647’’; and

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

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

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

19 ‘‘the following:’’;

20 (B) in paragraph (1)—

21 (i) by striking ‘‘(1) funds’’ and insert22 ing ‘‘(1) Funds’’; and

23 (ii) by striking the semicolon at the

24 end and inserting a period;

25 (C) in paragraph (2)—
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1 (i) by striking ‘‘(2) no’’ and inserting

2 ‘‘(2) No’’; and

3 (ii) by striking the semicolon at the

4 end and inserting a period; and

5 (D) in paragraph (3)—

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

7 ‘‘(3) No’’; and

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

9 a period.

10 SEC. 209. SEPARATE CONSIDERATION OF WATERMELON

11 PLAN AMENDMENTS.

12 Section 1655 of the Watermelon Research and Pro13 motion Act (7 U.S.C. 4914) is amended—

14 (1) by inserting ‘‘(a)’’ before ‘‘The provisions’’;

15 and

16 (2) by adding at the end the following new sub17 sections:

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

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

20 as a result of the amendments made by the Watermelon

21 Research and Promotion Improvement Act shall be subject

22 to separate line item voting and approval in a referendum

23 conducted pursuant to section 1653 before the Secretary

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

25 the enactment of such Act.
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1 ‘‘(c) The amendments referred to in subsection (b)

2 are those amendments required under—

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

4 and Promotion Improvement Act relating to the

5 elimination of the assessment refund; and

6 ‘‘(2) section 208 of such Act relating to subject7 ing importers to the terms and conditions of the

8 plan.

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

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

11 the Secretary shall include as eligible voters in the referen12 dum producers, handlers, and importers who would be

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

14 TITLE III—FRESH CUT FLOWERS

15 AND FRESH CUT GREENS

16 PROMOTION AND INFORMA17 TION

18 SEC. 301. SHORT TITLE.

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

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

21 SEC. 302. FINDINGS AND DECLARATION OF POLICY.

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

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

24 an integral part of life in the United States, are en25 joyed by millions of persons every year for a mul-
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1 titude of special purposes (especially important per2 sonal events), and contribute a natural and beautiful

3 element to the human environment.

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

5 many individual producers throughout the United

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

7 and marketed by thousands of small-sized and me8 dium-sized businesses, and such production, han9 dling, and marketing constitute a key segment of the

10 United States horticultural industry and thus a sig11 nificant part of the overall agricultural economy of

12 the United States.

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

14 of cut flowers and cut greens in that they purchase

15 most of the cut flowers and cut greens marketed by

16 producers, prepare the cut flowers and cut greens

17 for retail consumption, serve as intermediary be18 tween source of product and retailer, otherwise fa19 cilitate the entry of cut flowers and cut greens into

20 the current of domestic commerce, and add effi21 ciencies to the market process that ensure the avail22 ability of a much greater variety of product to retail23 ers and consumers.

24 (4) It is widely recognized that it is in the pub25 lic interest and important to the agricultural econ-
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1 omy of the United States to provide an adequate,

2 steady supply of cut flowers and cut greens at rea3 sonable prices to consumers in the United States.

4 (5) Cut flowers and cut greens move in inter5 state and foreign commerce, and cut flowers and cut

6 greens that do not move in such channels of com7 merce, but only in intrastate commerce, directly af8 fect interstate commerce in cut flowers and cut

9 greens.

10 (6) The maintenance and expansion of existing

11 markets and the development of new or improved

12 markets or uses for cut flowers and cut greens are

13 needed to preserve and strengthen the economic via14 bility of the domestic cut flowers and cut greens in15 dustry for the benefit of producers, handlers, retail16 ers, and the entire floral industry.

17 (7) Generic programs of promotion and

18 consumer information can be effective in maintain19 ing and developing markets for cut flowers and cut

20 greens, and have the advantage of equally enhancing

21 the market position for all cut flowers and cut

22 greens marketed.

23 (8) Because cut flowers and cut greens produc24 ers are primarily agriculture-oriented rather than

25 promotion-oriented, and because the floral marketing
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1 industry within the United States is comprised

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

3 the development and implementation of an adequate

4 and coordinated national program of generic pro5 motion and consumer information necessary for the

6 maintenance of existing markets and the develop7 ment of new markets for cut flowers and cut greens

8 have been prevented.

9 (9) There exist established State and commod10 ity-specific producer-funded programs of promotion

11 and research that are valuable efforts to expand

12 markets for domestic producers of cut flowers and

13 cut greens and that will be able to take advantage

14 of the promotion and consumer information program

15 authorized by this title to enhance their market de16 velopment efforts for domestic producers.

17 (10) An effective and coordinated method for

18 ensuring cooperative and collective action in provid19 ing for and financing a nationwide program of ge20 neric promotion and consumer information is needed

21 to ensure that the cut flowers and cut greens indus22 try will be able to provide, obtain, and implement

23 programs of promotion and consumer information

24 necessary to maintain, expand, and develop markets

25 for these articles.
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1 (11) The most efficient method of financing a

2 nationwide program of generic promotion and

3 consumer information regarding cut flowers and cut

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

5 point they are sold by handlers into the retail mar6 ket.

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

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

9 it is the purpose of this title, to authorize the establish10 ment pursuant to this title of an orderly procedure for

11 the development and financing (through an adequate as12 sessment on cut flowers and cut greens sold by handlers

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

14 an effective and coordinated program of generic pro15 motion, consumer information, and related research de16 signed to strengthen the cut flowers and cut greens indus17 try’s position in the marketplace and to maintain, develop,

18 and expand markets for cut flowers and cut greens.

19 SEC. 303. DEFINITIONS.

20 For purposes of this title:

21 (1) CONSUMER INFORMATION.—The term

22 ‘‘consumer information’’ means any action or pro23 gram to provide information to consumers and other

24 persons on appropriate uses under varied cir-
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1 cumstances, and on the care and handling, of cut

2 flowers or cut greens.

3 (2) CUT FLOWERS AND CUT GREENS.—

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

5 includes all flowers cut from growing plants and

6 used as fresh-cut flowers, produced either under

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

8 greens’’ includes all cultivated or noncultivated

9 decorative foliage cut from growing plants and

10 used as fresh-cut decorative foliage (except

11 Christmas trees) produced either under cover or

12 in field operations. Neither term includes foli13 age plants, floral supplies, or flowering plants.

14 (B) SUBSTANTIAL PORTION.—In any case

15 in which a handler packages cut flowers or cut

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

17 gift basket or similar presentation, for sale to

18 retailers, the PromoFlor Council may deter19 mine, under procedures set out in the order,

20 that the cut flowers or cut greens in the article

21 do not constitute a substantial portion of the

22 value of the article and that, based on such de23 termination, the article shall not be treated as

24 an article of cut flowers or cut greens subject

25 to assessment under the order.
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1 (3) GROSS SALES PRICE.—The term ‘‘gross

2 sales price’’ means the total amount of the trans3 action in a sale of cut flowers or cut greens from a

4 handler to a retailer.

5 (4) HANDLER DEFINITIONS.—

6 (A) QUALIFIED HANDLER.—

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

8 handler’’ means a person (including a co9 operative) operating in the cut flowers or

10 cut greens marketing system that sells do11 mestic or imported cut flowers or cut

12 greens to retailers and exempt handlers

13 and whose annual sales of cut flowers and

14 cut greens to retailers and exempt handlers

15 are $750,000 or more.

16 (ii) INCLUSIONS.—The term ‘‘quali17 fied handler’’ includes—

18 (I) bouquet manufacturers (sub19 ject to the ‘‘substantial portion’’ rule

20 under paragraph (2)(B));

21 (II) auction houses that clear

22 sales of cut flowers and cut greens to

23 retailers and exempt handlers through

24 a central clearinghouse; and
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1 (III) any distribution center that

2 is owned or controlled by a retailer if

3 the predominant retail business activ4 ity of the retailer is floral sales. For

5 purposes of determining sales of cut

6 flowers and cut greens to retailers

7 from any such distribution center,

8 each non-sale transfer to a retailer

9 shall be treated as a sale in an

10 amount calculated as provided in sub11 paragraph (C)(ii).

12 (iii) EXCLUSIONS.—The term ‘‘quali13 fied handler’’ does not include a person

14 who merely physically transports or deliv15 ers cut flowers or cut greens.

16 (iv) RULES OF CONSTRUCTION FOR

17 DIRECT TO CONSUMER SALES.—The term

18 ‘‘qualified handler’’ includes an importer

19 that sells directly to consumers cut flowers

20 or cut greens that it has imported into the

21 United States and whose sales of such cut

22 flowers or cut greens (as calculated under

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

24 flowers and cut greens to retailers or ex25 empt handlers, annually are $750,000 or
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1 more. The term ‘‘qualified handler’’ also

2 includes a producer that sells directly to

3 consumers cut flowers or cut greens that it

4 has produced and whose sales of such cut

5 flowers or cut greens (as calculated under

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

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

9 more. Each direct sale to consumers by

10 any such qualified handler shall be treated

11 as a sale to a retailer or exempt handler in

12 an amount calculated as provided in clause

13 (ii) or (iii) of subparagraph (C).

14 (B) EXEMPT HANDLER.—The term ‘‘ex15 empt handler’’ means a person that would oth16 erwise be considered to be a qualified handler,

17 except that its annual sales of cut flowers and

18 cut greens to retailers and other exempt han19 dlers are less than $750,000.

20 (C) ANNUAL SALES DETERMINED.—

21 (i) IN GENERAL.—For purposes of de22 termining the amount of annual sales of

23 cut flowers and cut greens under subpara24 graphs (A) and (B), the amount of a sale
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1 shall be determined on the basis of the

2 gross sales price of product sold.

3 (ii) SPECIAL RULE FOR DISTRIBUTION

4 CENTERS.—In the case of a non-sale trans5 fer of cut flowers or cut greens from a dis6 tribution center, as described in subpara7 graph (A)(ii)(III), the amount of the sale

8 shall be—

9 (I) the price paid by the distribu10 tion center to acquire the cut flowers

11 or cut greens; plus

12 (II) an amount determined by

13 multiplying acquisition price deter14 mined under subclause (I) by a uni15 form percentage established by the

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

18 (iii) SPECIAL RULE FOR DIRECT

19 SALES BY IMPORTERS.—In the case a di20 rect sale by an importer to a consumer, as

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

22 amount of the sale shall be—

23 (I) the price paid by the importer

24 to acquire the cut flowers or cut

25 greens; plus
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1 (II) an amount determined by

2 multiplying the acquisition price de3 termined under subclause (I) by a

4 uniform percentage established by the

5 order to represent a wholesale han6 dler’s mark-up on a sale to a retailer.

7 (iv) SPECIAL RULE FOR DIRECT

8 SALES BY PRODUCERS.—In the case of a

9 direct sale by a producer to a consumer, as

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

11 amount of the sale shall be an amount de12 termined by applying to the price paid by

13 the consumer a uniform percentage estab14 lished by the order to represent the cost of

15 producing the article and a wholesale han16 dler’s mark-up on a sale to a retailer.

17 (D) REFERENCE TO OTHER DEFINI18 TIONS.—For purposes of this paragraph, the

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

20 term ‘‘producer that is a qualified handler’’ in

21 section 305(b)(2)(B)(ii)(I), and the term ‘‘im22 porter’’ has the meaning given the term ‘‘im23 porter that is a qualified handler’’ in section

24 305(b)(2)(B)(iii)(I).
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1 (5) PERSON.—The term ‘‘person’’ means any

2 individual, group of individuals, firm, partnership,

3 corporation, joint stock company, association, soci4 ety, cooperative, or other legal entity.

5 (6) PROMOFLOR COUNCIL.—The term

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

7 and Fresh Cut Greens Promotion Council estab8 lished under section 305(b).

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

10 means any action determined by the Secretary to ad11 vance the image, desirability, or marketability of cut

12 flowers or cut greens, including paid advertising.

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

14 market research and studies limited to the support

15 of advertising, market development, and other pro16 motion efforts and consumer information efforts re17 lating to cut flowers or cut greens, including edu18 cational activities.

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

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

21 market retail outlet, or other end-use seller as de22 scribed in an order issued under this title) that sells

23 cut flowers or cut greens to consumers. The term

24 shall include any distribution center—
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1 (A) owned or controlled by such person, or

2 owned or controlled cooperatively by a group of

3 such persons, if the predominant retail business

4 activity of such person is not floral sales; or

5 (B) independently owned but operated pri6 marily to provide food products to retail stores.

7 An independently owned distribution center covered

8 by subparagraph (B) that is also an importer or pro9 ducer of cut flowers or cut greens shall be subject

10 to the rules of construction set out in paragraph

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

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

13 directly to the consumer.

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

15 means the Secretary of Agriculture.

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

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

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

19 all the territories and possessions of the United

20 States.

21 SEC. 304. ISSUANCE OF ORDERS.

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

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

24 this title applicable to qualified handlers of cut flowers and

25 cut greens. Any such order shall be national in scope. Not
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1 more than one order shall be in effect under this title at

2 any one time.

3 (b) PROCEDURES.—

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

5 may propose the issuance of an order under this

6 title. In addition, an industry group that represents

7 a substantial number of the industry members who

8 are to be assessed under the order, or any other per9 son that will be affected by this title, may request

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

11 order.

12 (2) PUBLICATION OF PROPOSAL.—The Sec13 retary shall publish the proposed order and give due

14 notice and opportunity for public comment on the

15 proposed order not later than 60 days after the ear16 lier of—

17 (A) the date on which the Secretary re18 ceives a proposal for an order from an industry

19 group or interested person, as provided in para20 graph (1); or

21 (B) the date on which the Secretary deter22 mines to propose an order.

23 (3) ISSUANCE OF ORDER.—After notice and op24 portunity for public comment are provided, the Sec25 retary shall issue the order, taking into consider-
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1 ation the comments received and including in the

2 order provisions necessary to ensure that the order

3 is in conformity with the requirements of this title.

4 The order shall be issued and become effective not

5 later than 180 days after publication of the proposed

6 order.

7 (c) AMENDMENTS.—From time to time, the Sec8 retary may amend an order issued under this title. The

9 provisions of this title applicable to the issuance of an

10 order shall be applicable to amendments to the order.

11 SEC. 305. REQUIRED TERMS IN ORDERS.

12 (a) IN GENERAL.—Each order issued under this title

13 shall contain the terms and provisions required by this sec14 tion, sections 306 and 307, and any other provision of this

15 title.

16 (b) PROMOFLOR COUNCIL—

17 (1) ESTABLISHMENT AND MEMBERSHIP.—

18 (A) ESTABLISHMENT.—The order shall

19 provide for the establishment of a Fresh Cut

20 Flowers and Fresh Cut Greens Promotion

21 Council, consisting of twenty one members, to

22 administer the order.

23 (B) MEMBERSHIP.—The order shall pro24 vide that members of the PromoFlor Council

25 shall be participating qualified handlers rep-
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1 resenting qualified wholesale handlers and pro2 ducers and importers that are qualified han3 dlers, and a member that represents retailers,

4 appointed by the Secretary from nominations

5 submitted by qualified wholesale handlers, pro6 ducers and importers that are qualified han7 dlers, and retailers, as provided in paragraphs

8 (2) and (3).

9 (2) DISTRIBUTION OF APPOINTMENTS.—

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

11 that the membership of the PromoFlor Council

12 shall be made up of—

13 (i) fourteen members representing

14 qualified wholesale handlers of domestic or

15 imported cut flowers and cut greens;

16 (ii) three members representing pro17 ducers that are qualified handlers of cut

18 flowers and cut greens;

19 (iii) three members representing im20 porters that are qualified handlers of cut

21 flowers and cut greens; and

22 (iv) one member representing cut

23 flowers and cut greens retailers.

24 (B) MEANING OF TERMS.—For purposes

25 of this subsection:
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•HR 3515 IH

1 (i) QUALIFIED WHOLESALE HAN2 DLERS.—The term ‘‘qualified wholesale

3 handler’’ means a person in business as a

4 floral wholesale jobber or floral supplier

5 and that is subject to assessments as a

6 qualified handler under the order. For pur7 poses of this clause, the term ‘‘floral

8 wholesale jobber’’ means a person that

9 conducts a commission or other wholesale

10 business in buying and selling cut flowers

11 or cut greens, and the term ‘‘floral sup12 plier’’ means a person engaged in acquir13 ing cut flowers or cut greens to be manu14 factured into floral articles or otherwise

15 processed for resale.

16 (ii) PRODUCER THAT IS A QUALIFIED

17 HANDLER.—The term ‘‘producer that is a

18 qualified handler’’ means an entity that—

19 (I) is engaged—

20 (aa) in the domestic produc21 tion, for sale in commerce, of cut

22 flowers or cut greens and that

23 owns or shares in the ownership

24 and risk of loss of the cut flowers

25 or cut greens; or
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1 (bb) as a first processor of

2 noncultivated cut greens, in re3 ceiving the cut greens from the

4 persons that gather them for

5 handling; and

6 (II) is subject to assessments as

7 a qualified handler under the order.

8 (iii) IMPORTER THAT IS A QUALIFIED

9 HANDLER.—The term ‘‘importer that is a

10 qualified handler’’ means an entity—

11 (I) whose principal activity is the

12 importation of cut flowers or cut

13 greens into the United States (either

14 directly or as an agent, broker, or

15 consignee of any person or nation that

16 produces or handles cut flowers or cut

17 greens outside the United States for

18 sale in the United States); and

19 (II) that is subject to assess20 ments as a qualified handler under

21 the order.

22 (C) DISTRIBUTION OF QUALIFIED WHOLE23 SALE HANDLER APPOINTMENTS.—The order

24 shall provide that the qualified wholesale han25 dler appointments made by the Secretary to the
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1 PromoFlor Council shall take into account the

2 geographical distribution of cut flowers and cut

3 greens markets in the United States.

4 (3) NOMINATION PROCESS.—The order shall

5 provide that—

6 (A) two nominees be submitted for each

7 appointment to the PromoFlor Council;

8 (B) nominations for each appointment of a

9 qualified wholesale handler, producer that is a

10 qualified handler, or importer that is a qualified

11 handler to the PromoFlor Council shall be

12 made by qualified wholesale handlers, producers

13 that are qualified handlers, or importers that

14 are qualified handlers, respectively, through an

15 election process under regulations prescribed by

16 the Secretary;

17 (C) nominations for the retailer appoint18 ment shall be made by the American Floral

19 Marketing Council, or successor entity; and

20 (D) in any case in which qualified whole21 sale handlers, producers that are qualified han22 dlers, importers that are qualified handlers, or

23 retailers fail to nominate individuals for an ap24 pointment to the PromoFlor Council, the Sec25 retary may appoint a person to fill the vacancy
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1 on a basis provided in the order or other regu2 lations of the Secretary.

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

4 the selection of alternate members of the PromoFlor

5 Council by the Secretary under procedures specified

6 in the order.

7 (5) TERMS; COMPENSATION.—The order shall

8 provide that—

9 (A) each term of appointment to the

10 PromoFlor Council shall be for three years, ex11 cept that, of the initial appointments, one-third

12 shall be for two-year terms, one-third for three13 year terms, and one-third for four-year terms;

14 (B) no member of the PromoFlor Council

15 may serve more than two consecutive terms of

16 three years, except that any member serving on

17 initial term of four years may serve an addi18 tional term of three years; and

19 (C) PromoFlor Council members shall

20 serve without compensation, but shall be reim21 bursed for their expenses incurred in perform22 ing their duties as members of the PromoFlor

23 Council.

24 (6) EXECUTIVE COMMITTEE.—
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1 (A) ESTABLISHMENT.—The order shall au2 thorize the PromoFlor Council to appoint from

3 among its members an executive committee of

4 not more than nine members. The membership

5 of the executive committee initially shall be

6 composed of four members representing quali7 fied wholesale handlers, two members represent8 ing producers that are qualified handlers, two

9 members representing importers that are quali10 fied handlers, and one member representing re11 tailers; and thereafter appointments to the exec12 utive committee shall be made so as to ensure

13 that the committee reflects, to the maximum

14 extent practicable, the membership composition

15 of the PromoFlor Council as a whole. The ini16 tial appointments to the executive committee

17 each shall be for a term of two years. There18 after, appointments to the executive committee

19 each shall be for a term of one year.

20 (B) AUTHORITY.—The PromoFlor Council

21 may delegate to the executive committee its au22 thority under the order to hire and manage

23 staff and conduct the routine business of the

24 PromoFlor Council within the policies deter25 mined by the PromoFlor Council.
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1 (c) GENERAL RESPONSIBILITIES OF THE

2 PROMOFLOR COUNCIL.—The order shall define the gen3 eral responsibilities of the PromoFlor Council, which shall

4 include the responsibility—

5 (1) to administer the order in accordance with

6 its terms and provisions;

7 (2) to make rules and regulations to effectuate

8 the terms and provisions of the order;

9 (3) to appoint members of the PromoFlor

10 Council to serve on an executive committee;

11 (4) to employ such persons as the PromoFlor

12 Council determines are necessary, and to set the

13 compensation and define the duties of such persons;

14 (5) to develop budgets for the implementation

15 of the order and submit such budgets to the Sec16 retary for approval under subsection (d);

17 (6) to propose and develop (or receive and

18 evaluate), approve, and submit to the Secretary for

19 approval under subsection (d) plans and projects for

20 cut flowers or cut greens promotion, consumer infor21 mation, or related research;

22 (7) to implement plans and projects for cut

23 flowers or cut greens promotion, consumer informa24 tion, or related research, as provided in subsection

25 (d), or to contract or enter into agreements with ap-
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1 propriate persons to implement such plans and

2 projects, as provided in subsection (e), and to pay

3 the costs of such implementation, or contracts and

4 agreements, with funds received under the order;

5 (8) to evaluate on-going and completed plans

6 and projects for cut flowers or cut greens promotion,

7 consumer information, or related research;

8 (9) to receive, investigate, and report to the

9 Secretary complaints of violations of the order;

10 (10) to recommend to the Secretary amend11 ments to the order; and

12 (11) to furnish the Secretary with such infor13 mation as the Secretary may require.

14 (d) BUDGETS; PLANS AND PROJECTS.—

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

16 require the PromoFlor Council to submit to the Sec17 retary for approval budgets on a fiscal year basis of

18 its anticipated expenses and disbursements in the

19 implementation of the order, including projected

20 costs of cut flowers and cut greens promotion,

21 consumer information, and related research plans

22 and projects.

23 (2) PLANS OR PROJECTS.—

24 (A) PROMOTION AND CONSUMER INFORMA25 TION.—The order shall provide—
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1 (i) for the establishment, implementa2 tion, administration, and evaluation of ap3 propriate plans and projects for advertis4 ing, sales promotion, other promotion, and

5 consumer information with respect to cut

6 flowers and cut greens, and for the dis7 bursement of necessary funds for such pur8 poses;

9 (ii) that any such plan or project shall

10 be directed toward increasing the general

11 demand for cut flowers or cut greens and

12 may make no reference to a private brand

13 or trade name, point of origin, or source of

14 supply, except that these limitations shall

15 not preclude the PromoFlor Council from

16 offering its plans and projects for use by

17 commercial parties, under terms and con18 ditions prescribed by the PromoFlor Coun19 cil and approved by the Secretary; and

20 (iii) that no such plan or project may

21 make use of unfair or deceptive acts or

22 practices with respect to quality or value.

23 (B) RESEARCH.—The order shall provide

24 for the establishment, implementation, adminis25 tration, and evaluation of plans and projects for
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1 market development research, research with re2 spect to the sale, distribution, marketing, or use

3 of cut flowers or cut greens, and other research

4 with respect to cut flowers or cut greens mar5 keting, promotion, or consumer information; for

6 the dissemination of the information gained by

7 such activities; and for the disbursement of nec8 essary funds for such purposes.

9 (C) SUBMISSION TO SECRETARY.—The

10 order shall provide that the PromoFlor Council

11 shall submit to the Secretary for approval any

12 proposed plan or project for cut flowers or cut

13 greens promotion, consumer information, or re14 lated research, as described in subparagraphs

15 (A) and (B).

16 (3) APPROVAL BY SECRETARY REQUIRED.—No

17 budget, or plan or project for cut flowers or cut

18 greens promotion, consumer information, or related

19 research, shall be implemented prior to its approval

20 by the Secretary.

21 (4) INVESTMENT AUTHORITY.—The order shall

22 provide the PromoFlor Council with the authority to

23 invest, pending disbursement under a plan or

24 project, funds collected through assessments author25 ized under this title. Income from invested funds
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1 shall be used only for a purpose for which the in2 vested funds may be used. The investment of such

3 funds shall be made only in—

4 (A) obligations of the United States or any

5 agency thereof;

6 (B) general obligations of any State or any

7 political subdivision thereof;

8 (C) any interest-bearing account or certifi9 cate of deposit of a bank that is a member of

10 the Federal Reserve System; or

11 (D) obligations fully guaranteed as to prin12 cipal and interest by the United States.

13 (e) CONTRACTS AND AGREEMENTS.—

14 (1) PROMOTION, CONSUMER INFORMATION, AND

15 RELATED RESEARCH PLANS AND PROJECTS.—

16 (A) IN GENERAL.—To ensure efficient use

17 of funds, the order shall provide that the

18 PromoFlor Council, with the approval of the

19 Secretary, may enter into contracts or agree20 ments for the implementation of any plan or

21 project for promotion, consumer information, or

22 related research with respect to cut flowers or

23 cut greens, and for the payment of the cost

24 thereof with funds received by the PromoFlor

25 Council under the order.
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1 (B) REQUIREMENTS.—The order shall pro2 vide that any such contract or agreement shall

3 provide that—

4 (i) the contracting or agreeing party

5 shall develop and submit to the PromoFlor

6 Council a plan or project together with a

7 budget or budgets that shall show esti8 mated costs to be incurred under the plan

9 or project;

10 (ii) the plan or project shall become

11 effective on the approval of the Secretary;

12 and

13 (iii) the contracting or agreeing party

14 shall keep accurate records of all of its

15 transactions, account for funds received

16 and expended, make periodic reports to the

17 PromoFlor Council of activities conducted,

18 and make such other reports as the

19 PromoFlor Council or the Secretary may

20 require.

21 (2) OTHER CONTRACTS AND AGREEMENTS.—

22 The order shall provide that the PromoFlor Council

23 also may enter into contracts or agreements for ad24 ministrative services. Any such contract or agree25 ment shall include provisions comparable to those
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1 provided in clauses (i), (ii), or (iii) of paragraph

2 (1)(B).

3 (f) BOOKS AND RECORDS OF THE PROMOFLOR

4 COUNCIL.—

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

6 PromoFlor Council to—

7 (A) maintain such books and records

8 (which shall be available to the Secretary for in9 spection and audit) as the Secretary may pre10 scribe;

11 (B) prepare and submit to the Secretary,

12 from time to time, such reports as the Sec13 retary may prescribe; and

14 (C) account for the receipt and disburse15 ment of all funds entrusted to the PromoFlor

16 Council.

17 (2) AUDITS.—The PromoFlor Council shall

18 cause its books and records to be audited by an

19 independent auditor at the end of each fiscal year.

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

21 Secretary.

22 (g) CONTROL OF ADMINISTRATIVE COSTS.—The

23 order shall provide that the PromoFlor Council shall, as

24 soon as practicable after the order becomes effective and

25 after consultation with the Department of Agriculture and
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1 other appropriate persons, implement a system of cost

2 controls based on normally accepted business practices

3 that will ensure that the PromoFlor Council’s annual

4 budgets only include amounts for administrative expenses

5 that cover the minimum administrative activities and per6 sonnel needed to properly administer and enforce the

7 order and conduct, supervise, and evaluate plans and

8 projects under the order.

9 (h) PROHIBITION.—The order shall prohibit the use

10 of any funds received by the PromoFlor Council in any

11 manner for the purpose of influencing legislation or gov12 ernment action or policy, except that such funds may be

13 used by the PromoFlor Council for the development and

14 recommendation to the Secretary of amendments to the

15 order.

16 (i) BOOKS AND RECORDS; REPORTS.—

17 (1) IN GENERAL.—The order shall provide that

18 each qualified handler shall maintain, and make

19 available for inspection, such books and records as

20 may be required by the order and file reports at the

21 time, in the manner, and having the content pre22 scribed by the order, to the end that information is

23 made available to the Secretary and the PromoFlor

24 Council as is appropriate for the administration or
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1 enforcement of this title, the order, or any regulation

2 issued under this title.

3 (2) CONFIDENTIALITY REQUIRED.—

4 (A) IN GENERAL.—Information obtained

5 from books, records, or reports under the au6 thority provided in paragraph (1), or from re7 ports required under section 307(c), shall be

8 kept confidential by all officers and employees

9 of the Department of Agriculture and by the

10 staff and agents of the PromoFlor Council, and

11 only such information so obtained as the Sec12 retary considers relevant may be disclosed to

13 the public by them and then only in a suit or

14 administrative hearing brought at the request

15 of the Secretary, or to which the Secretary or

16 any officer of the United States is a party, and

17 involving the order.

18 (B) RULE OF CONSTRUCTION.—Nothing in

19 subparagraph (A) may be construed to pro20 hibit—

21 (i) the issuance of general statements,

22 based on the reports, of the number of per23 sons subject to the order or statistical data

24 collected therefrom, which statements do
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1 not identify the information furnished by

2 any person; or

3 (ii) the publication, by direction of the

4 Secretary, of the name of any person vio5 lating the order, together with a statement

6 of the particular provisions of the order

7 violated by the person.

8 (3) LISTS OF IMPORTERS.—The order shall re9 quire the staff of the PromoFlor Council to periodi10 cally review lists of importers of cut flowers and cut

11 greens to determine whether persons included in the

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

13 PromoFlor Council, the United States Customs

14 Service shall provide to the PromoFlor Council lists

15 of importers of cut flowers and cut greens.

16 (j) CONSULTATIONS WITH INDUSTRY EXPERTS.—

17 The order shall provide that the PromoFlor Council, from

18 time to time, may seek advice from and consult with ex19 perts from the production, import, wholesale, and retail

20 segments of the cut flowers and cut greens industry to

21 assist in the development of promotion, consumer informa22 tion, and related research plans and projects. For such

23 purpose, the order also shall authorize the appointment

24 of special committees composed of persons other than

25 PromoFlor Council members. A committee appointed pur-
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1 suant to the authority provided in this subsection may not

2 provide advice or recommendations to an agency or officer

3 of the Federal Government, but shall consult directly with

4 the PromoFlor Council.

5 SEC. 306. ASSESSMENTS.

6 (a) AUTHORITY TO IMPOSE ASSESSMENT.—

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

8 title shall provide that each qualified handler shall

9 pay to the PromoFlor Council, in the manner pre10 scribed by the order, an assessment on each sale of

11 cut flowers or cut greens (other than a sale de12 scribed in subsection (h)) to a retailer or an exempt

13 handler. This assessment requirement shall also

14 apply to each transaction described in paragraph

15 (4).

16 (2) DETERMINATION OF QUALIFIED HANDLER

17 OR EXEMPT HANDLER STATUS.—The order shall

18 contain provisions regarding the making of deter19 minations to determine status as a qualified handler

20 or exempt handler that include the rules and re21 quirements set out in sections 303(4) and 307.

22 (3) PUBLISHED LISTS OF HANDLERS.—To fa23 cilitate the payment of assessments under this sec24 tion, the PromoFlor Council shall publish lists of
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1 qualified handlers required to pay assessments under

2 the order and exempt handlers.

3 (4) COVERED TRANSACTIONS.—

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

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

6 greens to a retailer from a qualified handler

7 that is a distribution center, as described in

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

9 of cut flowers or cut greens to a consumer by

10 a qualified handler that is an importer or pro11 ducer, as described in section 303(4)(A)(iv),

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

13 greens to a retailer subject to assessments

14 under this subsection.

15 (B) DETERMINATION OF SALE AMOUNT

16 FOR DISTRIBUTION CENTERS.—In the case of a

17 non-sale transfer of cut flowers or cut greens

18 from a distribution center, the amount of the

19 sale shall be considered to be—

20 (i) the price paid by the distribution

21 center to acquire the cut flowers or cut

22 greens; plus

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

25 clause (i) by a uniform percentage estab-
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1 lished by the order to represent a wholesale

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

3 (C) DETERMINATION OF SALE AMOUNT

4 FOR DIRECT SALES BY IMPORTERS.—In the

5 case a direct sale by an importer to a consumer,

6 the amount of the sale shall be considered to

7 be—

8 (i) the price paid by the importer to

9 acquire the cut flowers or cut greens; plus

10 (ii) an amount determined by mul11 tiplying the acquisition price determined

12 under clause (i) by a uniform percentage

13 established by the order to represent a

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

15 retailer.

16 (D) DETERMINATION OF SALE AMOUNT

17 FOR DIRECT SALES BY PRODUCERS.—In the

18 case a direct sale by a producer to a consumer,

19 the amount of the sale shall be considered to be

20 an amount determined by applying to the price

21 paid by the consumer a uniform percentage es22 tablished by the order to represent the cost of

23 producing the article and a wholesale handler’s

24 mark-up on a sale to a retailer.
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1 (E) ADJUSTMENT OF UNIFORM PERCENT2 AGE.—The PromoFlor Council may recommend

3 to the Secretary changes to the uniform per4 centage established by the order under this

5 paragraph. The Secretary may make a change

6 in the uniform percentage based on such a rec7 ommendation only after providing an oppor8 tunity for notice and comment regarding the

9 proposed change.

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

11 with the following assessment requirements:

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

13 assessment on each sale or transfer of cut flowers or

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

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

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

17 (B) in the case of transactions described in

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

19 calculated as provided in such subsection.

20 (2) CHANGES IN ASSESSMENT RATE.—

21 (A) AUTHORIZED AMOUNT OF CHANGE.—

22 Subject to subparagraph (B), after the first

23 three years the order is in effect, the uniform

24 assessment rate may be increased or decreased

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

2 sold; or

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

5 the transaction calculated as provided in

6 such subsection.

7 (B) LIMITATION.—The assessment rate

8 may not exceed one percent of gross sales price

9 or transaction amount.

10 (C) METHOD OF CHANGING ASSESSMENT

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

13 PromoFlor Council by a two-thirds majority

14 vote and approved by the Secretary, after pro15 viding an opportunity for notice and comment

16 regarding the proposed change, as necessary to

17 achieve the objectives of this title. The change

18 in the rate of assessment shall be announced by

19 the PromoFlor Council at least 30 days prior to

20 going into effect. A change in the rate of as21 sessment shall not be subject to a vote in a ref22 erendum under section 308.

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

24 provide that each person required to pay assessments

25 under this section shall remit, to the PromoFlor Council,
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1 the assessment due from each sale by that person of cut

2 flowers or cut greens that is subject to an assessment

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

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

5 place) as specified in the order.

6 (d) REFUNDS FROM ESCROW ACCOUNT.—

7 (1) ESTABLISHMENT OF ESCROW ACCOUNT.—

8 The order shall provide that the PromoFlor Council

9 shall—

10 (A) establish an escrow account to be used

11 for assessment refunds as needed; and

12 (B) place into the escrow account an

13 amount equal to 10 percent of the total amount

14 of assessments collected during the period be15 ginning on the date the order goes into effect,

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

17 the date the initial referendum on the order

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

19 (2) RIGHT TO RECEIVE REFUND.—

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

21 that, subject to paragraph (3) and the condi22 tions specified in subparagraph (B), any quali23 fied handler shall have the right to demand and

24 receive from the PromoFlor Council out of the

25 escrow account a one-time refund of any assess-
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1 ments paid by or on behalf of the qualified han2 dler during the time period specified in para3 graph (1)(B), if—

4 (i) the qualified handler is required to

5 pay such assessments;

6 (ii) the qualified handler does not sup7 port the program established under this

8 title;

9 (iii) the qualified handler demands a

10 refund prior to the conduct of the referen11 dum on the order under section 308(a);

12 and

13 (iv) the order is not approved by

14 qualified handlers in the referendum.

15 (B) CONDITIONS.—The right of any quali16 fied handler to receive refunds under subpara17 graph (A) shall be subject to the following con18 ditions:

19 (i) The demand shall be made in ac20 cordance with regulations, on a form, and

21 within a time period prescribed by the

22 PromoFlor Council.

23 (ii) The refund shall be made only on

24 submission of proof satisfactory to the

25 PromoFlor Council that the qualified han-
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1 dler paid the assessment for which refund

2 is demanded.

3 (iii) If the amount in the escrow ac4 count required under paragraph (1) is not

5 sufficient to refund the total amount of as6 sessments demanded by all qualified han7 dlers determined eligible for refunds and

8 the order is not approved in the referen9 dum on the order under section 308(a),

10 the PromoFlor Council shall prorate the

11 amount of all such refunds among all eligi12 ble qualified handlers that demand a re13 fund.

14 (3) PROGRAM APPROVED.—The order shall pro15 vide that, if the order is approved in the referendum

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

17 and all funds in the escrow account shall be re18 turned to the PromoFlor Council for use by the

19 PromoFlor Council in accordance with the other pro20 visions of the order.

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

22 provide that assessment funds (net of any refunds paid

23 out under the terms of the order contained in subsection

24 (d)) shall be used for payment of costs incurred in imple25 menting and administering the order, with provision for
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1 a reasonable reserve, and to cover those administrative

2 costs incurred by the Secretary in implementing and ad3 ministering this title, except for the salaries of Govern4 ment employees incurred in conducting referenda.

5 (f) POSTPONEMENT OF COLLECTIONS.—

6 (1) AUTHORITY.—Notwithstanding any other

7 provision of this title, the PromoFlor Council may

8 grant a postponement of the payment of assessments

9 under this section for any qualified handler that es10 tablishes that it is financially unable to make the

11 payment. The granting of such a postponement shall

12 be considered under application and documentation

13 requirements and review procedures established

14 under rules recommended by the PromoFlor Council,

15 approved by the Secretary, and issued after provid16 ing public notice and an opportunity to comment on

17 the proposed rules.

18 (2) CRITERIA AND RESPONSIBILITY FOR DE19 TERMINATIONS.—To establish that it is financially

20 unable to pay assessments, an applicant for a post21 ponement shall demonstrate that it is insolvent and

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

23 to pay assessments. As part of making such a dem24 onstration, the applicant shall submit an opinion of

25 an independent certified public accountant and any
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1 other documentation required under the rules pre2 scribed under paragraph (1). All books, records, and

3 other documentation submitted by a qualified han4 dler under this paragraph shall be subject to the

5 confidentiality requirements of section 505(i).

6 (3) PERIOD OF POSTPONEMENT.—The time pe7 riod of any postponement and the terms and condi8 tions of payment of assessments that are postponed

9 under this subsection shall be established by the

10 PromoFlor Council, in accordance with the rules

11 prescribed under paragraph (1), so as to appro12 priately reflect the proven needs of the qualified

13 handler. Postponements may be extended under the

14 requirements and procedures established pursuant to

15 paragraph (1) for the grant of initial postponements.

16 (g) OTHER TERMS OF ORDER.—The order shall con17 tain such other terms and provisions, not inconsistent with

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

19 provision for the assessment of interest and a charge for

20 each late payment of assessments under this section.

21 (h) EXCLUSION FROM ASSESSMENTS.—The order

22 shall exclude from assessments under the order any sale

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

24 States.
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1 SEC. 307. REQUIRED DETERMINATIONS.

2 (a) DETERMINATION OF ANNUAL SALES.—

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

4 $750,000 annual sales limitation to specific persons

5 in order to determine status as a qualified handler

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

7 specific facilities in order to determine status as an

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

9 order issued under this title shall provide that a de10 termination of a person’s or facility’s annual sales

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

12 cut greens by the person or facility during the most

13 recently-completed calendar year.

14 (2) SPECIAL RULE FOR NEW BUSINESSES.—

15 With respect to new businesses and other operations

16 for which complete data on sales during all or part

17 of the most recently-completed calendar year are not

18 available to the PromoFlor Council, the determina19 tion under paragraph (1) may be made using an al20 ternative time period or other alternative procedures

21 specified in the order.

22 (b) RULE OF ATTRIBUTION.—

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

24 the annual sales volume of a person or a separate

25 facility of a person, sales attributable to a person

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

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

4 and grandparents;

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

6 a partnership or member of a partnership, sales

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

9 (C) for both individuals and partnerships,

10 sales attributable to any corporation or other

11 entity in which the person owns more than 50

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

13 corporation) that the person controls; and

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

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

17 in which the corporation owns more than 50

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

19 corporation) that the corporation controls.

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

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

24 parents, grandparents, or partners of an individual,

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

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

3 as owned by the individual or person.

4 (c) REPORTS.—For purposes of this section, the

5 order may require each person that sells cut flowers or

6 cut greens to retailers to submit reports to the PromoFlor

7 Council on annual sales by the person. A report under this

8 subsection shall be subject to the confidentiality require9 ments provided in section 305(i)(2).

10 SEC. 308. REFERENDA.

11 (a) REQUIREMENT FOR INITIAL REFERENDUM.—

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

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

14 the Secretary shall conduct a referendum among

15 qualified handlers required to pay assessments under

16 the order, as provided in section 306, subject to the

17 rules on voting provided in subsection (b), to ascer18 tain whether or not the order then in effect shall be

19 continued.

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

21 shall be continued only if the Secretary determines

22 that the order has been approved by a simple major23 ity of all votes cast in the referendum. If the order

24 is not approved, the Secretary shall terminate the

25 order as provided in subsection (d).
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1 (b) VOTES PERMITTED.—

2 (1) IN GENERAL.—Each qualified handler eligi3 ble to vote in a referendum under this section shall

4 be entitled to cast one vote for each separate facility

5 of the person that is an eligible separate facility, as

6 defined in paragraph (2).

7 (2) ELIGIBLE SEPARATE FACILITY.—

8 (A) SEPARATE FACILITY.—A handling or

9 marketing facility of a qualified handler shall be

10 considered a separate facility if it is physically

11 located away from other facilities of the quali12 fied handler or its business function is substan13 tially different than the functions of other fa14 cilities owned or operated by the qualified han15 dler.

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

17 qualified handler shall be considered to be an

18 eligible separate facility if the annual sales of

19 cut flowers and cut greens to retailers and ex20 empt handlers from the facility are $750,000 or

21 more.

22 (C) ANNUAL SALES DETERMINED.—For

23 purposes of determining the amount of annual

24 sales of cut flowers and cut greens under sub25 paragraph (B) of this paragraph, the rules set
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1 out in subparagraphs (A) and (C) of section

2 303(4) shall be applicable.

3 (c) SUSPENSION OR TERMINATION REFERENDA.—

4 Effective beginning three years after an order issued

5 under this title is approved in a referendum conducted

6 under subsection (a), the Secretary—

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

8 at any time a referendum of qualified handlers re9 quired to pay assessments under the order, as pro10 vided in section 306, subject to the rules on voting

11 provided in subsection (b), to ascertain whether or

12 not qualified handlers favor suspension or termi13 nation of the order; and

14 (2) whenever requested by the PromoFlor

15 Council or by a representative group comprising

16 thirty percent or more of all qualified handlers re17 quired to pay assessments under the order, as pro18 vided in section 306, shall conduct a referendum of

19 all qualified handlers required to pay assessments

20 under the order, as provided in section 306, subject

21 to the rules on voting provided in subsection (b), to

22 ascertain whether or not qualified handlers favor

23 suspension or termination of the order.

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

25 of the referendum conducted under subsection (a)(2), the
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1 Secretary determines that the order has not been approved

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

3 or as a result of a referendum conducted under subsection

4 (c), the Secretary determines that suspension or termi5 nation of the order is favored by a simple majority of all

6 votes cast in the referendum, the Secretary shall—

7 (1) within six months after the referendum,

8 suspend or terminate, as appropriate, collection of

9 assessments under the order; and

10 (2) suspend or terminate, as appropriate, activi11 ties under the order in an orderly manner as soon

12 as practicable.

13 (e) MANNER OF CONDUCTING REFERENDA.—

14 Referenda under this section shall be conducted in such

15 manner as is determined appropriate by the Secretary.

16 SEC. 309. PETITION AND REVIEW.

17 (a) PETITION AND HEARING.—

18 (1) PETITION.—A person subject to an order

19 issued under this title may file with the Secretary a

20 petition—

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

22 the order, or any obligation imposed in connec23 tion with the order is not in accordance with

24 law; and
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1 (B) requesting a modification of the order

2 or an exemption from the order.

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

4 the opportunity for a hearing on a petition filed

5 under paragraph (1), in accordance with regulations

6 issued by the Secretary. Any such hearing shall be

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

8 be held within the United States judicial district in

9 which the person’s residence or principal place of

10 business is located.

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

12 (2), the Secretary shall make a ruling on the peti13 tion, which shall be final if in accordance with law.

14 (b) REVIEW.—

15 (1) COMMENCEMENT OF ACTION.—The district

16 courts of the United States in any district in which

17 a person that is a petitioner under subsection (a) re18 sides or carries on business are hereby vested with

19 jurisdiction to review the Secretary’s ruling on the

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

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

22 the ruling by the Secretary.

23 (2) PROCESS.—Service of process in proceed24 ings under this subsection shall be conducted in ac25 cordance with the Federal Rules of Civil Procedure.
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1 (3) REMAND.—If the court in a proceeding

2 under this subsection determines that the Sec3 retary’s ruling on the person’s petition is not in ac4 cordance with law, the court shall remand the mat5 ter to the Secretary with directions either—

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

7 determine to be in accordance with law; or

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

9 opinion of the court, the law requires.

10 (c) ENFORCEMENT UNDER SECTION 310.—The

11 pendency of proceedings instituted under this section shall

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

13 Secretary from obtaining relief under section 310.

14 SEC. 310. ENFORCEMENT.

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

16 United States are vested with jurisdiction specifically to

17 enforce, and to prevent and restrain any person from vio18 lating, this title or an order or regulation made or issued

19 by the Secretary under this title.

20 (b) REFERRAL TO ATTORNEY GENERAL.—A civil ac21 tion brought under subsection (a) shall be referred to the

22 Attorney General for appropriate action, except that the

23 Secretary is not required to refer to the Attorney General

24 a violation of this title, or an order or regulation issued

25 under this title, if the Secretary believes that the adminis-
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1 tration and enforcement of this title would be adequately

2 served by administrative action under subsection (c) or

3 suitable written notice or warning to the person who com4 mitted or is committing the violation.

5 (c) CIVIL PENALTIES AND ORDERS.—

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

7 provision of this title, or an order or regulation is8 sued by the Secretary under this title, or who fails

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

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

11 regulation issued under this title, may be assessed

12 by the Secretary—

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

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

15 and

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

17 an assessment as required by an order or regu18 lation, an additional penalty equal to the

19 amount of the assessment.

20 (2) TREATMENT AS SEPARATE OFFENSES.—

21 Each violation described in paragraph (1) shall be

22 treated as a separate offense.

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

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

25 the Secretary may issue an order requiring a person
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1 to cease and desist from continuing a violation of

2 this title or an order or regulation issued under this

3 title.

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

5 be assessed or cease and desist order issued by the

6 Secretary under this subsection unless the Secretary

7 gives the person against whom the penalty is as8 sessed or the order is issued notice and opportunity

9 for a hearing before the Secretary with respect to

10 the violation. The hearing shall be conducted in ac11 cordance with section 311(b)(2) and be held within

12 the United States judicial district in which the per13 son’s residence or principal place of business is lo14 cated.

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

16 and desist order issued under this subsection shall

17 be final and conclusive unless the person against

18 whom the penalty is assessed or the order is issued

19 files an appeal with the appropriate district court of

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

21 (d) REVIEW BY DISTRICT COURT.—

22 (1) COMMENCEMENT OF ACTION.—Any person

23 against whom a violation is found and a civil penalty

24 assessed or cease and desist order issued under sub-
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1 section (c) may obtain review of the penalty or order

2 by—

3 (A) filing, within the 30-day period begin4 ning on the date the penalty is assessed or

5 order issued, a notice of appeal in the district

6 court of the United States for the district in

7 which the person resides or carries on business,

8 or in the United States district court for the

9 District of Columbia; and

10 (B) simultaneously sending a copy of the

11 notice by certified mail to the Secretary.

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

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

14 shall promptly file in the district court in which the

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

16 on which the Secretary found that the person had

17 committed a violation.

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

19 Secretary shall be set aside under this subsection

20 only if the finding is found to be unsupported by

21 substantial evidence.

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

23 fails to obey a cease and desist order issued under sub24 section (c) after the order has become final and

25 unappealable, or after the appropriate United States dis-
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1 trict court has entered a final judgment in favor of the

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

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

4 after opportunity for a hearing and for judicial review

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

6 Each day during which the failure continues shall be con7 sidered as a separate violation of the order.

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

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

10 after the penalty has become final and unappealable, or

11 after the appropriate United States district court has en12 tered final judgment in favor of the Secretary, the Sec13 retary shall refer the matter to the Attorney General for

14 recovery of the amount assessed in any United States dis15 trict court in which the person resides or carries on busi16 ness. In such action, the validity and appropriateness of

17 the civil penalty shall not be subject to review.

18 (g) ADDITIONAL REMEDIES.—The remedies provided

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

20 other remedies that may be available.

21 SEC. 311. INVESTIGATIONS AND POWER TO SUBPOENA.

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

23 investigations as the Secretary considers necessary for the

24 effective administration of this title, or to determine

25 whether any person has engaged or is engaging in any
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1 act that constitutes a violation of this title, or any order

2 or regulation issued under this title.

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

4 (1) IN GENERAL.—For the purpose of an inves5 tigation under subsection (a), the Secretary may ad6 minister oaths and affirmations, and issue subpoe7 nas to require the production of any records that are

8 relevant to the inquiry. The production of any such

9 records may be required from any place in the Unit10 ed States.

11 (2) ADMINISTRATIVE HEARINGS.—For the pur12 pose of an administrative hearing held under section

13 309(a)(2) or 310(c)(3), the presiding officer may ad14 minister oaths and affirmations, subpoena witnesses,

15 compel their attendance, take evidence, and require

16 the production of any records that are relevant to

17 the inquiry. The attendance of witnesses and the

18 production of any such records may be required

19 from any place in the United States.

20 (c) AID OF COURTS.—

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

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

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

24 United States within the jurisdiction of which the in25 vestigation or proceeding is carried on, or where the
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1 person resides or carries on business, in order to en2 force a subpoena issued under subsection (b). The

3 court may issue an order requiring the person to

4 comply with such a subpoena. Any failure to obey

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

6 as a contempt thereof.

7 (2) PROCESS.—Process in any proceeding

8 under this subsection may be served in the United

9 States judicial district in which the person being

10 proceeded against resides or carries on business or

11 wherever the person may be found.

12 SEC. 312. CONFIDENTIALITY.

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

14 voted in a referendum conducted under this title shall be

15 made public.

16 (b) PENALTY.—Any person knowingly violating sub17 section (a) or the confidentiality terms of an order, as de18 scribed in section 305(i)(2), on conviction shall be subject

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

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

21 and, if an officer or employee of the Department of Agri22 culture or the PromoFlor Council, shall be removed from

23 office.

24 (c) ADDITIONAL PROHIBITION.—No information ob25 tained under this title may be made available to any agen-
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1 cy or officer of the Federal Government for any purpose

2 other than the implementation of this title and any inves3 tigatory or enforcement actions necessary for the imple4 mentation of this title.

5 (d) WITHHOLDING INFORMATION FROM CONGRESS

6 PROHIBITED.—Nothing in this title shall be construed to

7 authorize the withholding of information from Congress.

8 SEC. 313. AUTHORITY FOR SECRETARY TO SUSPEND OR

9 TERMINATE ORDER.

10 Whenever the Secretary finds that an order issued

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

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

13 title, the Secretary shall terminate or suspend the oper14 ation of the order or provision under such terms as the

15 Secretary determines appropriate.

16 SEC. 314. CONSTRUCTION.

17 (a) TERMINATION OR SUSPENSION NOT AN

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

19 any provision thereof, shall not be considered an order

20 under the meaning of this title.

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

22 be construed to provide for control of production or other23 wise limit the right of individual cut flowers and cut

24 greens producers to produce cut flowers and cut greens.

25 This title seeks to treat all persons producing cut flowers
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1 and cut greens fairly and to implement any order estab2 lished hereunder equitably in every respect.

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

4 construed to preempt or supersede any other program re5 lating to cut flowers or cut greens promotion and

6 consumer information organized and operated under the

7 laws of the United States or any State.

8 SEC. 315. REGULATIONS.

9 The Secretary may issue such regulations as are nec10 essary to carry out this title and the powers vested in the

11 Secretary by this title, including regulations relating to the

12 assessment of late payment charges and interest.

13 SEC. 316. AUTHORIZATION OF APPROPRIATIONS.

14 (a) IN GENERAL.—There are authorized to be appro15 priated for each fiscal year such sums as may be necessary

16 to carry out this title.

17 (b) ADMINISTRATIVE EXPENSES.—Funds appro18 priated under subsection (a) may not be used for payment

19 of the expenses or expenditures of the PromoFlor Council

20 in administering any provision of an order issued under

21 this title.

22 SEC. 317. SEPARABILITY.

23 If any provision of this title or the application thereof

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

25 of the remainder of the title and of the application of such
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1 provision to other persons and circumstances shall not be

2 affected thereby.

3 TITLE IV—LIME RESEARCH,

4 PROMOTION, AND CONSUMER

5 INFORMATION

6 SEC. 401. SHORT TITLE.

7 This title may be cited as the ‘‘Lime Research, Pro8 motion, and Consumer Information Improvement Act’’.

9 SEC. 402. FINDINGS AND PURPOSE.

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

11 (1) The Lime Research, Promotion, and

12 Consumer Information Act of 1990 was enacted on

13 November 28, 1990, for the purpose of establishing

14 an orderly procedure for the development and fi15 nancing of an effective and coordinated program of

16 research, promotion, and consumer information to

17 strengthen the domestic and foreign markets for

18 limes.

19 (2) The lime research, promotion, and

20 consumer information order required by such Act be21 came effective on January 27, 1992.

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

23 cover seedless limes, the definition of the term

24 ‘‘lime’’ in section 1953(6) of such Act applies to

25 seeded limes. Therefore, the Act and the order need
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1 to be revised before a research, promotion, and

2 consumer information program on seedless limes can

3 go into effect.

4 (4) Since the enactment of the Lime Research,

5 Promotion, and Consumer Information Act of 1990,

6 the United States production of fresh market limes

7 has plummeted and the volume of imports has risen

8 dramatically. The drop in United States production

9 is primarily due to damage to lime orchards in the

10 State of Florida by Hurricane Andrew in August

11 1992. United States production is not expected to

12 reach pre-Hurricane Andrew levels for possibly two

13 to three years because a majority of the United

14 States production of limes is in Florida.

15 (b) PURPOSES.—The purpose of this Act is—

16 (1) to revise the definition of the term ‘‘lime’’

17 in order to cover seedless and not seeded limes;

18 (2) to increase the exemption level;

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

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

21 SEC. 403. DEFINITION OF LIME.

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

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

24 6202(6)) is amended by striking ‘‘citrus aurantifolia’’ and

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

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

3 of 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

7 inserting ‘‘3’’;

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

9 inserting ‘‘3’’;

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

14 enactment of the Lime Research, Promotion, and

15 Consumer Information Improvement Act.’’; and

16 (4) by inserting after paragraph (2)(F) the fol17 lowing new paragraph:

18 ‘‘(G) BOARD ALLOCATION.—The producer

19 and importer representation on the Board shall

20 be allocated on the basis of 2 producer mem21 bers and 1 importer member from the district

22 east of the Mississippi River and 1 producer

23 member and 2 importer members from the dis24 trict west of the Mississippi River.’’.

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

26 section is amended—
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1 (1) by striking ‘‘The Secretary’’ and all that

2 follows through ‘‘shall—’’ and inserting ‘‘The initial

3 members of the Board appointed under the amended

4 order shall serve a term of 30 months. Subsequent

5 appointments to the Board shall be for a term of 3

6 years, except that—’’;

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

8 inserting ‘‘2’’;

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

10 inserting ‘‘2’’; and

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

12 inserting ‘‘3’’.

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

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

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

16 SEC. 405. INITIAL REFERENDUM.

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

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

19 6209(a)) is amended by striking ‘‘Not later than 2 years

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

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

22 months after the date on which the collection of assess23 ments begins under the order pursuant to section

24 1955(d),’’.
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