II

104TH CONGRESS

1ST SESSION S. 1449

To make agricultural promotion boards and councils more responsive to producers whose mandatory assessments support the activities of such

boards and councils, to improve the representation and participation

of such producers on such boards and councils, to ensure the independence of such boards and councils, to ensure the appropriate use of

promotion funds, to prevent legislatively authorized promotion and research boards from using mandatory assessments to directly or indirectly

influence legislation or governmental action or policy, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

DECEMBER 5, 1995

Mr. FEINGOLD introduced the following bill; which was read twice and

referred to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To make agricultural promotion boards and councils more

responsive to producers whose mandatory assessments

support the activities of such boards and councils, to

improve the representation and participation of such producers on such boards and councils, to ensure the independence of such boards and councils, to ensure the

appropriate use of promotion funds, to prevent legislatively authorized promotion and research boards from

using mandatory assessments to directly or indirectly

influence legislation or governmental action or policy,

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

3 SECTION 1. SHORT TITLE.

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

5 Accountability Act of 1995’’.

6 SEC. 2. PURPOSE.

7 The purpose of this Act is to make agricultural pro8 motion boards and councils more responsive to producers

9 whose mandatory assessments support the activities of

10 such boards and councils, to improve the representation

11 and participation of such producers on such boards and

12 councils, to ensure the independence of such boards and

13 councils, to ensure the appropriate use of promotion

14 funds, and to prevent legislatively authorized agricultural

15 promotion and research boards from using mandatory as16 sessments to directly or indirectly influence legislation or

17 governmental action or policy.

18 SEC. 3. DEFINITIONS.

19 In this Act:

20 (1) INFLUENCING LEGISLATION OR GOVERN21 MENTAL ACTION OR POLICY.—The term ‘‘influencing

22 legislation or governmental action or policy’’ in23 cludes—

24 (A) establishing, administering, contribut25 ing to, or paying the expenses of a political
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1 party campaign, political action committee, or

2 other organization established for the purpose

3 of influencing the outcome of an election;

4 (B) attempting to influence—

5 (i) the outcome of any Federal, State

6 or local election, referendum, initiative, or

7 similar procedure through a cash contribu8 tion, in-kind contribution, endorsement,

9 publicity or public relations activity or

10 similar activity;

11 (ii) the introduction, modification, or

12 enactment of any Federal or State legisla13 tion or signature or veto of any enrolled

14 Federal or State legislation, including

15 through—

16 (I) communication with any

17 member or employee of a legislative

18 body or agency or with any govern19 mental official or employee who may

20 participate in the formulation of the

21 legislation, including engaging State

22 or local officials in similar activity

23 (not including a communication to an

24 appropriate government official in re25 sponse to a written request by the of-
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1 ficial for factual, scientific, or tech2 nical information relating to the con3 duct, implementation, or results of

4 promotion, research, consumer infor5 mation and education, industry infor6 mation, or producer information ac7 tivities under a promotion program);

8 (II) planning, preparing, funding,

9 or distributing any publicity or propa10 ganda to affect the opinion of the gen11 eral public or a segment of the public

12 in connection with a pending legisla13 tive matter; or

14 (III) urging members of the gen15 eral public or any segment of the gen16 eral public to contribute to, or partici17 pate in, any mass demonstration,

18 march, rally, fund-raising drive, lobby19 ing campaign, letter-writing cam20 paign, or telephone campaign in con21 nection with a pending legislative mat22 ter;

23 (C) carrying out a legislative liaison activ24 ity, including attendance at a legislative session

25 or committee hearing to gather information re-
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1 garding legislation or to analyze the effect of

2 legislation, if the activity is carried on in sup3 port of, or in knowing preparation for, an effort

4 to influence legislation or government action or

5 policy;

6 (D) carrying out an opinion survey of the

7 general public or a segment of the public, gen8 eral research, or information gathering, if car9 ried out in support of, or in knowing prepara10 tion for, an effort to influence legislation or

11 government action or policy; or

12 (E) attempting to influence any agency ac13 tion or agency proceeding, as the terms are de14 fined in section 551 of title 5, United States

15 Code, through—

16 (i) communication with any govern17 ment official or employee who may partici18 pate in the action or proceeding (not in19 cluding a communication to an appropriate

20 government official in response to a writ21 ten request by the official for factual, sci22 entific, or technical information relating to

23 the conduct, implementation, or results of

24 promotion, research, consumer information

25 or education, or industry information of
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1 producer information activities under a

2 promotion program);

3 (ii) planning, preparing, funding, or

4 distributing any publicity or propaganda to

5 affect the opinions of the general public or

6 any segment of the general public in con7 nection with the action or proceeding; or

8 (iii) urging members of the general

9 public or any segment of the general public

10 to contribute to, or participate in, any

11 mass demonstration, march, rally, fund12 raising drive, lobbying campaign, letter13 writing campaign, or telephone campaign

14 in connection with the action or proceed15 ing.

16 (2) PROMOTION PROGRAM.—The term ‘‘pro17 motion program’’ means—

18 (A) the cotton research and promotion pro19 gram established under the Cotton Research

20 and Promotion Act (7 U.S.C. 2101 et seq.);

21 (B) the potato research, development, ad22 vertising, and promotion program established

23 under the Potato Research and Promotion Act

24 (7 U.S.C. 2611 et seq.);
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1 (C) the egg research, consumer and pro2 ducer education, and promotion program estab3 lished under the Egg Research and Consumer

4 Information Act (7 U.S.C. 2701 et seq.);

5 (D) the beef promotion and research pro6 gram established under the Beef Research and

7 Information Act (7 U.S.C. 2901 et seq.);

8 (E) the wheat research and nutrition edu9 cation program established under the Wheat

10 and Wheat Foods Research and Nutrition Edu11 cation Act (7 U.S.C. 3401 et seq.);

12 (F) the dairy promotion program estab13 lished under the Dairy Production Stabilization

14 Act of 1983 (7 U.S.C. 4501 et seq.);

15 (G) the honey research, promotion, and

16 consumer education program established under

17 the Honey Research, Promotion, and Consumer

18 Information Act (7 U.S.C. 4601 et seq.);

19 (H) the pork promotion, research, and

20 consumer information program established

21 under the Pork Promotion, Research, and

22 Consumer Information Act (7 U.S.C. 4801 et

23 seq.);

24 (I) the watermelon research, development,

25 advertising, and promotion program established
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1 under the Watermelon Research and Promotion

2 Act (7 U.S.C. 4901 et seq.);

3 (J) the pecan promotion, research, indus4 try information, and consumer information pro5 gram established under the Pecan Promotion

6 and Research Act of 1990 (7 U.S.C. 6001 et

7 seq.);

8 (K) the mushroom promotion, research,

9 and consumer and industry information pro10 gram established under the Mushroom Pro11 motion, Research, and Consumer Information

12 Act of 1990 (7 U.S.C. 6101 et seq.);

13 (L) the lime research, promotion, and

14 consumer information program established

15 under the Lime Research, Promotion, and

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

17 6201 et seq.);

18 (M) the soybean promotion, research,

19 consumer information, and industry information

20 program established under the Soybean Pro21 motion, Research, and Consumer Information

22 Act (7 U.S.C. 6301 et seq.);

23 (N) the fluid milk advertising and pro24 motion program established under the Fluid
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1 Milk Promotion Act of 1990 (7 U.S.C. 6401 et

2 seq.);

3 (O) the flowers and greens promotion,

4 consumer information, and related research

5 program established under the Fresh Cut Flow6 ers and Fresh Cut Greens Promotion and Infor7 mation Act of 1993 (7 U.S.C. 6801 et seq.);

8 (P) the sheep promotion, research,

9 consumer information, education, and industry

10 information program established under the

11 Sheep Promotion, Research, and Information

12 Act of 1994 (7 U.S.C. 7101 et seq.); and

13 (Q) any other coordinated program of pro14 motion, research, industry information, and

15 consumer information that is funded by manda16 tory assessments on producers and designed to

17 maintain and expand markets and uses for an

18 agricultural commodity, as determined by the

19 Secretary.

20 (3) SECRETARY.—The term ‘‘Secretary’’ means

21 the Secretary of Agriculture.

22 SEC. 4. INFLUENCING LEGISLATION OR GOVERNMENTAL

23 ACTION OR POLICY.

24 (a) IN GENERAL.—A board or council established by

25 a promotion program may not use any funds collected by
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1 the board or council for the purpose of directly or indi2 rectly influencing legislation or governmental action or

3 policy, except for the development and recommendation of

4 amendments to the promotion program to the Secretary.

5 (b) CONFORMING AMENDMENTS.—

6 (1) COTTON.—Section 7(h) of the Cotton Re7 search and Promotion Act (7 U.S.C. 2106(h)) is

8 amended by striking ‘‘influencing governmental pol9 icy or action’’ and inserting ‘‘directly or indirectly

10 influencing legislation or governmental action or pol11 icy (as defined in section 3(1) of the Agricultural

12 Promotion Accountability Act of 1995)’’.

13 (2) POTATOES.—Section 308(f)(3) of the Po14 tato Research and Promotion Act (7 U.S.C.

15 2617(f)(3)) is amended by striking ‘‘influencing gov16 ernmental policy or action’’ and inserting ‘‘directly

17 or indirectly influencing legislation or governmental

18 action or policy (as defined in section 3(1) of the

19 Agricultural Promotion Accountability Act of

20 1995)’’.

21 (3) EGGS.—Section 8(h) of the Egg Research

22 and Consumer Information Act (7 U.S.C. 2707) is

23 amended by striking ‘‘influencing governmental pol24 icy or action’’ and inserting ‘‘directly or indirectly

25 influencing legislation or governmental action or pol-
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1 icy (as defined in section 3(1) of the Agricultural

2 Promotion Accountability Act of 1995)’’.

3 (4) BEEF.—Section 5(10) of the Beef Research

4 and Information Act (7 U.S.C. 2904(10)) is amend5 ed—

6 (A) by striking ‘‘influencing governmental

7 action or policy’’ and inserting ‘‘directly or indi8 rectly influencing legislation or governmental

9 action or policy (as defined in section 3(1) of

10 the Agricultural Promotion Accountability Act

11 of 1995)’’; and

12 (B) by inserting ‘‘to the Secretary’’ before

13 the period at the end.

14 (5) WHEAT.—Section 1706(i) of the Wheat and

15 Wheat Foods Research and Nutrition Education Act

16 (7 U.S.C. 3405(i)) is amended by striking ‘‘influenc17 ing governmental policy or action’’ and inserting ‘‘di18 rectly or indirectly influencing legislation or govern19 mental action or policy (as defined in section 3(1) of

20 the Agricultural Promotion Accountability Act of

21 1995)’’.

22 (6) DAIRY.—Section 113(j) of the Dairy Pro23 duction Stabilization Act of 1983 (7 U.S.C. 4504(j))

24 is amended by striking ‘‘influencing governmental

25 policy or action’’ and inserting ‘‘directly or indirectly
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1 influencing legislation or governmental action or pol2 icy (as defined in section 3(1) of the Agricultural

3 Promotion Accountability Act of 1995),’’.

4 (7) HONEY.—Section 7(h) of the Honey Re5 search, Promotion, and Consumer Information Act

6 (7 U.S.C. 4606(h)) is amended by striking ‘‘influ7 encing governmental policy or action’’ and inserting

8 ‘‘directly or indirectly influencing legislation or gov9 ernmental action or policy (as defined in section 3(1)

10 of the Agricultural Promotion Accountability Act of

11 1995)’’.

12 (8) PORK.—Section 1620(e) of the Pork Pro13 motion, Research, and Consumer Information Act (7

14 U.S.C. 4809(e)) is amended by striking ‘‘influencing

15 legislation’’ and all that follows through the period

16 at the end and inserting the following: ‘‘directly or

17 indirectly influencing legislation or governmental ac18 tion or policy (as defined in section 3(1) of the Agri19 cultural Promotion Accountability Act of 1995), ex20 cept to recommend amendments to the order to the

21 Secretary.’’.

22 (9) WATERMELONS.—Section 1647(g)(3) of the

23 Watermelon Research and Promotion Act (7 U.S.C.

24 4906(g)(3)) is amended by striking ‘‘influencing gov25 ernmental policy or action’’ and inserting ‘‘directly
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1 or indirectly influencing legislation or governmental

2 action or policy (as defined in section 3(1) of the

3 Agricultural Promotion Accountability Act of

4 1995)’’.

5 (10) PECANS.—Section 1910(g)(1) of the

6 Pecan Promotion and Research Act of 1990 (7

7 U.S.C. 6005(g)(1)) is amended—

8 (A) in the matter preceding paragraph

9 (1)—

10 (i) by striking ‘‘to,’’ and inserting ‘‘for

11 the purpose of,’’; and

12 (ii) by striking ‘‘to—’’ and inserting

13 ‘‘for the purpose of—’’;

14 (B) in paragraph (1), by striking ‘‘influ15 ence legislation or governmental action’’ and in16 serting ‘‘directly or indirectly influencing legis17 lation or governmental action or policy (as de18 fined in section 3(1) of the Agricultural Pro19 motion Accountability Act of 1995)’’;

20 (C) in paragraph (2), by striking ‘‘engage’’

21 and inserting ‘‘engaging’’; and

22 (D) in paragraph (3), by striking ‘‘engage’’

23 and inserting ‘‘engaging’’.

24 (11) MUSHROOMS.—Section 1925(h) of the

25 Mushroom Promotion, Research, and Consumer In-
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1 formation Act of 1990 (7 U.S.C. 6104(h)) is amend2 ed by striking ‘‘influencing legislation or govern3 mental action or policy’’ and inserting ‘‘directly or

4 indirectly influencing legislation or governmental ac5 tion or policy (as defined in section 3(1) of the Agri6 cultural Promotion Accountability Act of 1995)’’.

7 (12) LIMES.—Section 1955(g) of the Lime Re8 search, Promotion, and Consumer Information Act

9 of 1990 (7 U.S.C. 6204(g)) is amended by striking

10 ‘‘influencing legislation or governmental policy or ac11 tion’’ and inserting ‘‘directly or indirectly influencing

12 legislation or governmental action or policy (as de13 fined in section 3(1) of the Agricultural Promotion

14 Accountability Act of 1995)’’.

15 (13) SOYBEANS.—Section 1969(p) of the Soy16 bean Promotion, Research, and Consumer Informa17 tion Act (7 U.S.C. 6304(p) is amended—

18 (A) in paragraph (1), by striking ‘‘influ19 encing legislation or governmental action or pol20 icy’’ and inserting ‘‘directly or indirectly influ21 encing legislation or governmental action or pol22 icy (as defined in section 3(1) of the Agricul23 tural Promotion Accountability Act of 1995)’’;

24 and

25 (B) in paragraph (2)—
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1 (i) in subparagraph (A), by inserting

2 ‘‘to the Secretary’’ before the semicolon;

3 and

4 (ii) in subparagraph (B), by inserting

5 ‘‘, in response to a request made by the of6 ficials,’’ after ‘‘officials’’.

7 (14) MILK.—Section 1999H(j)(1) of the Fluid

8 Milk Promotion Act of 1990 (7 U.S.C. 6407(j)(1))

9 is amended by striking ‘‘influencing legislation or

10 governmental action or policy’’ and inserting ‘‘di11 rectly or indirectly influencing legislation or govern12 mental action or policy (as defined in section 3(1) of

13 the Agricultural Promotion Accountability Act of

14 1995)’’.

15 (15) FLOWERS AND GREENS.—Section 5(i) of

16 the Fresh Cut Flowers and Fresh Cut Greens Pro17 motion and Information Act of 1993 (7 U.S.C.

18 6804(i)) is amended by striking ‘‘influencing legisla19 tion or government action or policy’’ and inserting

20 ‘‘directly or indirectly influencing legislation or gov21 ernmental action or policy (as defined in section 3(1)

22 of the Agricultural Promotion Accountability Act of

23 1995)’’.

24 (16) SHEEP.—Section 5(l)(1) of the Sheep Pro25 motion, Research, and Information Act of 1994 (7
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1 U.S.C. 7104(l)(1)) is amended by striking ‘‘influenc2 ing legislation or government action or policy’’ and

3 inserting ‘‘directly or indirectly influencing legisla4 tion or governmental action or policy (as defined in

5 section 3(1) of the Agricultural Promotion Account6 ability Act of 1995)’’.

7 SEC. 5. PROMOTING THE IMAGE OF AN INDUSTRY PROHIB8 ITED.

9 (a) IN GENERAL.—A board or council established by

10 a promotion program may not use any funds collected by

11 the board or council for the purpose of enhancing the

12 image of an industry, except that the board or council may

13 promote the image of a product with the express intent

14 of stimulating demand for and sales of an agricultural

15 product in the marketplace.

16 (b) CONFORMING AMENDMENTS.—

17 (1) BEEF.—Section 3(9) of the Beef Research

18 and Information Act (7 U.S.C. 2902(9)) is amended

19 by striking ‘‘, increased efficiency’’ and all that fol20 lows through ‘‘industry’’ and inserting ‘‘and in21 creased efficiency’’.

22 (2) PECANS.—Section 1907(12) of the Pecan

23 Promotion and Research Act of 1990 (7 U.S.C.

24 6002(12)) is amended by striking ‘‘, increased effi-
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1 ciency’’ and all that follows through ‘‘industry’’ and

2 inserting ‘‘and increased efficiency’’.

3 (3) MUSHROOMS.—Section 1923(7) of the

4 Mushroom Promotion, Research, and Consumer In5 formation Act of 1990 (7 U.S.C. 6103(7)) is amend6 ed by striking ‘‘, increased efficiency’’ and all that

7 follows through ‘‘industry’’ and inserting ‘‘and in8 creased efficiency’’.

9 (4) SOYBEANS.—Section 1967(7) of the Soy10 bean Promotion, Research, and Consumer Informa11 tion Act (7 U.S.C. 6302(7)) is amended by striking

12 ‘‘, and activities’’ and all that follows through ‘‘in13 dustry’’.

14 SEC. 6. LIMITATIONS ON CONTRACTING.

15 (a) PERMITTED CONTRACTS OR AGREEMENTS.—

16 Notwithstanding any other provision of law, a board or

17 council established by a promotion program shall not be

18 limited to contracting with, or entering into an agreement

19 with, an established national nonprofit industry-governed

20 organization.

21 (b) COMPETITIVE BIDDING.—It is the policy of Con22 gress that boards and councils should, to the extent prac23 ticable, use competitive bidding in the awarding of con24 tracts and grants for activities authorized under a pro25 motion program.
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1 (c) INDEPENDENCE OF BOARDS AND COUNCILS.—

2 (1) APPLICATIONS AND RECOMMENDATIONS

3 NOT BINDING.—Notwithstanding any other provision

4 of law, a board or council established by a promotion

5 program shall not be bound by a proposed applica6 tion for a board or council contract or a rec7 ommendation or advice of a potential contractor or

8 a national nonprofit industry-governed organization

9 on the use of board or council receipts.

10 (2) INTERLOCKING BOARDS OR MEMBERSHIP.—

11 Notwithstanding any other provision of law, no per12 son shall be eligible to be a member of any board or

13 council established by a promotion program (includ14 ing operating and nominating committees) if the

15 person serves in any decision making capacity, such

16 as that of a member of the board of directors, execu17 tive committee, or other committee, for an entity

18 that enters into a contract or other agreement with

19 the board or council.

20 (3) REQUIREMENTS FOR CONTRACTING.—A

21 contractor or grantee of a board or council may not

22 use funds collected through mandatory assessments

23 under a promotion program to fund any staff (in24 cluding expenses or other activities of the staff) who,
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1 in part, engage in 1 or more activities to influence

2 legislation or governmental action or policy.

3 (d) PRODUCER APPROVAL OF RELATIONSHIPS WITH

4 BOARDS OR COUNCILS.—

5 (1) IN GENERAL.—Except as provided in para6 graph (2) and notwithstanding any other provision

7 of law, the entering into of a permanent cooperative

8 arrangement or the establishment of a joint commit9 tee (including an arrangement that is advisory in

10 nature) by a board or council established by a pro11 motion program with a national nonprofit industry12 governed organization shall require the prior approval of at least 2 13 ⁄3 of the eligible producers under

14 the promotion program.

15 (2) EXCEPTION.—Paragraph (1) shall not

16 apply to a cooperative arrangement or joint commit17 tee—

18 (A) that was established prior to January

19 1, 1995; or

20 (B) that includes representatives or par21 ticipation from all producer-, processor-, or

22 handler-governed national nonprofit organiza23 tions (including general farm organizations)

24 that represent any but an insignificant number

25 of producers, processors, or handlers paying as-
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1 sessments under the promotion program to the

2 board or council, as determined by the Sec3 retary.

4 (3) PERMANENT COOPERATIVE ARRANGE5 MENT.—In this subsection, the term ‘‘permanent co6 operative arrangement’’ means a formal or informal,

7 written or unwritten agreement or understanding es8 tablishing a relationship, a liaison, a sole source con9 tract, or an operational mechanism under which a

10 board or council shares staff, facilities, or other re11 sources or carries out coordinated activities with any

12 entity on a more or less permanent and exclusive

13 basis.

14 (e) FUNGIBILITY OF BOARD OR COUNCIL FUNDS.—

15 (1) IN GENERAL.—The Inspector General of

16 the Department of Agriculture shall conduct an an17 nual review of contractual arrangements between

18 each board or council established by a promotion

19 program and any entity or association that engages

20 in activities to influence legislation or governmental

21 action or policy and receives a significant amount of

22 funding from the board or council as determined by

23 the Secretary.

24 (2) SCOPE OF REVIEW.—A review under para25 graph (1) shall examine whether any funds collected
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1 by the board or council are used to directly or indi2 rectly fund or subsidize an entity or association that

3 engages in influencing legislation or governmental

4 action or policy.

5 (3) REPORT.—The Secretary shall submit a re6 port on the findings of any review under this sub7 section and make recommendations for any actions

8 that should be taken as a result of the findings to

9 the Committee on Agriculture of the House of Rep10 resentatives and the Committee on Agriculture, Nu11 trition, and Forestry of the Senate.

12 SEC. 7. PERIODIC REFERENDA.

13 (a) IN GENERAL.—Notwithstanding any other provi14 sion of law, not less than 4 nor more than 6 years after

15 the date of enactment of this Act or the date on which

16 the Secretary determines the results of the most recent

17 referendum for a promotion program, whichever is earlier,

18 and not less than once every 5 years thereafter, the Sec19 retary shall conduct a referendum to determine whether

20 to approve or terminate the order under the promotion

21 program and whether refunds should be made under the

22 order.

23 (b) PROCEDURE.—The referendum under subsection

24 (a) shall be conducted using the same eligibility and other

25 procedures as the referendum used to approve the original
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1 order under the promotion program, except that, notwith2 standing any other provision of law, no greater than a sim3 ple majority of eligible producers shall be required to ap4 prove the making of refunds to producers.

5 (c) TERMINATION.—

6 (1) IN GENERAL.—If the percentage of persons

7 voting to approve the order does not equal or exceed

8 the percentage of persons necessary to approve the

9 continuation of the original order under the pro10 motion program, the Secretary shall terminate the

11 order.

12 (2) TIME OF TERMINATION.—The Secretary

13 shall terminate the order at the end of the market14 ing year during which the referendum is conducted.

15 (d) REFUNDS.—If the making of refunds is approved

16 in a referendum under subsection (a), the Secretary shall

17 establish a procedure for making the refunds not later

18 than 180 days after the date of the referendum.

19 (e) COOPERATIVE ASSOCIATION.—Notwithstanding

20 subsection (b), a cooperative association may not vote on

21 behalf of the members of the association in a referendum

22 conducted under this section.

23 (f) INACTIVE PROMOTION PROGRAMS.—The Sec24 retary shall not conduct a referendum of a promotion pro-
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1 gram under this section if the Secretary determines that

2 the promotion program is not active.

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